(4) After a report prepared under subsection (3) is finalised, the Inspector‑General may publish a copy of the report on the Inspector‑General’s website.
135S Delegation by Director of Meteorology
(1) The Director of Meteorology may, in writing, delegate all or any of the Director’s functions and powers under this Part (other than sections 135J and 135K) to an SES employee or acting SES employee.
(2) The Director of Meteorology may, by writing, delegate any or all of the Director’s functions and powers under this Part to a person who holds, or acts in, an office or position:
(a) with a State or a Territory, or an authority of a State or a Territory; and
(b) at a level equivalent to that of an SES employee;
if the State, Territory or authority agrees to the delegation.
(3) A delegate under subsection (1) or (2) must comply with any written directions of the Director of Meteorology.
135T Directions by Minister
(1) The Minister may, by notice in writing to the Director of Meteorology, give directions with respect to the performance of the Bureau’s functions or the exercise of its powers.
(2) The Director of Meteorology must comply with any such direction.
(3) A direction made under subsection (1) is a legislative instrument, but neither section 42 (disallowance) nor Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 applies to the direction.
135U Part does not limit section 239AJ
To avoid doubt, this Part does not limit the ACCC’s powers under section 239AJ.
135V Interaction between Part 7 and 7A
If, apart from this section, a person would be required to give the same information to the Bureau under this Part and Part 7:
(a) the person is required to give the information under this Part;
(b if the person gives the information under this Part—the person is not required to give the information under Part 7.
135W Prohibitions on disclosure of information do not apply
This Part has effect despite any law of the Commonwealth, a State or a Territory prohibiting disclosure of the information.
135X Ownership etc. of information unaffected by its disclosure
(1) Giving information under this Part does not affect a person’s property rights with respect to that information.
(2) This section does not prevent the use of the information by the Bureau for any purpose that is relevant to any of the Bureau’s functions under this Act or any other Act.
Part 8—Enforcement
Division 1—Preliminary
136 Contraventions to which this Part applies
This Part applies to the following contraventions:
(a) a contravention of a provision of this Act;
(b) a contravention of a provision of the regulations;
(c) a contravention of a provision of the water charge rules or the water market rules.
137 Appropriate enforcement agency for contraventions to which this Part applies
For the purposes of this Part, the appropriate enforcement agency for a contravention to which this Part applies is:
(a) the Inspector‑General if the contravention is a contravention of:
(i) a designated compliance provision; or
(ii) a provision of Part 2A or regulations made for the purposes of that Part; or
(iii) a provision of Part 10AB; or
(b) the ACCC if the contravention is a contravention of a provision of Part 4 or 4A, regulations made for the purposes of Part 4 or 4A, the water charge rules or the water market rules; or
(ba) the ACCC if the contravention is a contravention of a provision of Part 5, regulations made for the purposes of Part 5 or the Water Markets Intermediaries Code; or
(baa) the ACCC if the contravention is a contravention of a provision of Part 10AC; or
(c) the Minister if the contravention is a contravention of a provision of Part 7 or regulations made for the purposes of Part 7; or
(d) if the contravention is of subsection 168(1) (the executive officer contravention)—the person or body that is the appropriate enforcement agency under paragraph (a), (b) or (c) of this section for the contravention by the body corporate of the civil penalty provision referred to in paragraph 168(1)(a) that relates to the executive officer contravention.
138 References to Court
In this Part:
Court means:
(a) the Federal Court of Australia; or
(b) the Federal Circuit and Family Court of Australia (Division 2); or
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
139 Jurisdiction of Federal Circuit and Family Court of Australia (Division 2)
The Federal Circuit and Family Court of Australia (Division 2) does not have jurisdiction in relation to proceedings under this Part against a State.
Division 2—Injunctions
140 Grant of injunctions
Applications for injunctions
(1) If a person has engaged, is engaging or is proposing to engage in conduct consisting of an act or omission that constituted, constitutes or would constitute a contravention to which this Part applies, the appropriate enforcement agency may apply to a Court for an injunction.
Prohibitory injunctions
(2) If a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute a contravention to which this Part applies, the Court may grant an injunction restraining the person from engaging in the conduct.
Additional orders with prohibitory injunctions
(3) If the Court grants an injunction restraining a person from engaging in conduct, and in the Court’s opinion it is desirable to do so, the Court may make an order requiring the person to do something (including repair or mitigate damage to the health of, or loss of, Basin water resources).
Mandatory injunctions
(4) If a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail to do an act or thing, and the refusal or failure did, does or would constitute a contravention to which this Part applies, the Court may grant an injunction requiring the person to do the act or thing.
(5) Without limiting subsection (3) or (4), the Court may grant an injunction requiring the person to:
(a) implement a specified program for compliance with this Act, the Basin Plan, the regulations, the water charge rules or the water market rules; or
(b) disclose, in the way and to the persons specified in the injunction, such information that the person has possession of, or access to, as is specified in the injunction to correct or counter the effect of a contravention to which this Part applies; or
(c) publish, at the person’s expense and in the way specified in the injunction, an advertisement in the terms specified in, or determined in accordance with, the injunction to correct or counter the effect of a contravention to which this Part applies.
Interim injunctions
(6) Before deciding an application for an injunction under this section, the Court may grant an interim injunction:
(a) restraining a person from engaging in conduct; or
(b) requiring a person to do an act or thing.
141 Discharge or variation of injunctions
On application, a Court may discharge or vary an injunction granted by that Court under section 140.
142 Certain considerations for granting injunctions not relevant
Prohibitory injunctions
(1) A Court may grant an injunction under section 140 restraining a person from engaging in conduct:
(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is a significant risk of:
(i) injury or damage to human beings; or
(ii) damage to property; or
(iii) harm to, or loss of, water resources;
if the person engages, or continues to engage, in conduct of that kind.
Mandatory injunctions
(2) A Court may grant an injunction under section 140 requiring a person to do a particular act or thing:
(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do the act or thing; and
(b) whether or not the person has previously refused or failed to do the act or thing; and
(c) whether or not there is a significant risk of:
(i) injury or damage to human beings; or
(ii) damage to property; or
(iii) harm to, or loss of, water resources;
if the person refuses or fails, or continues to refuse or fail, to do the act or thing.
143 Powers conferred are in addition to other powers of the Court
The powers conferred on a Court by this Division are in addition to (and do not limit) any other powers of the Court.
Division 3—Declarations
144 Declarations of contravention
(1) The appropriate enforcement agency may apply to a Court for a declaration that a person has committed a contravention to which this Part applies.
(2) If the Court is satisfied that the person has committed the contravention, the Court may declare that the person has committed the contravention.
(3) A declaration under subsection (2) must specify the following:
(a) the Court that made the declaration;
(b) the provision that was contravened;
(c) the person who contravened the provision;
(d) the conduct that constituted the contravention.
145 Discharge or variation of declarations
On application, a Court may discharge or vary a declaration made by that Court under section 144.
Division 4—Civil penalties
Subdivision A—Civil penalty orders
146 Civil penalty provisions
The following are civil penalty provisions for the purpose of this Act:
(a) a subsection of this Act (or a section of this Act that is not divided into subsections) if:
(i) the words “civil penalty” and one or more amounts in penalty units are set out at the foot of the subsection (or section); or
(ii) another provision of this Act specifies that the subsection (or section) is a civil penalty provision;
(b) a provision of the water charge rules if:
(i) the words “civil penalty” and one or more amounts in penalty units are set out at the foot of the provision; or
(ii) another provision of the water charge rules specifies that the provision is a civil penalty provision;
(c) a provision of the water market rules if:
(i) the words “civil penalty” and one or more amounts in penalty units are set out at the foot of the provision; or
(ii) another provision of the water market rules specifies that the provision is a civil penalty provision;
(d) a provision of the Water Markets Intermediaries Code, if:
(i) the words “civil penalty” and one or more amounts in penalty units are set out at the foot of the provision; or
(ii) another provision of the Water Markets Intermediaries Code specifies that the provision is a civil penalty provision.
147 Court may order person to pay pecuniary penalty for contravening civil penalty provision
Application for order
(1) Within 6 years of a person (the wrongdoer) contravening a civil penalty provision, the appropriate enforcement agency may apply on behalf of the Commonwealth to a Court for an order that the wrongdoer pay the Commonwealth a pecuniary penalty.
Note: Orders cannot be sought in relation to Ministers, officers/employees of the Crown and Commonwealth or State agencies (see section 12).
Court may order wrongdoer to pay pecuniary penalty
(2) If the Court is satisfied that the wrongdoer has contravened a civil penalty provision, the Court may order the wrongdoer to pay to the Commonwealth for each contravention the pecuniary penalty that the Court determines is appropriate.
Maximum pecuniary penalty
(3) The pecuniary penalty must not exceed:
(a) if the wrongdoer is an individual and a single amount is specified for the civil penalty provision—the specified amount; or
(b) if the wrongdoer is an individual and separate amounts for individuals and bodies corporate are specified for the civil penalty provision—the amount specified for an individual; or
(c) if the wrongdoer is a body corporate and a single amount is specified for the civil penalty provision—an amount equal to 5 times the specified amount; or
(d) if the wrongdoer is a body corporate and separate amounts for individuals and bodies corporate are specified for the civil penalty provision—the amount specified for a body corporate.
Determining amount of pecuniary penalty
(4) In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a result of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.
Conduct contravening more than one civil penalty provision
(5) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Act against a person in relation to the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.
Civil double jeopardy
(6) A Court must not make a pecuniary penalty order against a person for a contravention of a civil penalty provision if a pecuniary penalty order has been made against the person under a civil penalty provision of a law of the Commonwealth or a law of a State in relation to conduct that is substantially the same as the conduct constituting the contravention.
Note: See also Subdivision B of this Division and section 250B.
148 Multiple contraventions
(1) A Court may make a single pecuniary penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.
Note: For continuing contraventions of civil penalty provisions, see section 154B.
(2) However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.
148A Proceedings may be heard together
A Court may direct that 2 or more proceedings for pecuniary penalty orders are to be heard together.
149 Civil evidence and procedure rules for pecuniary penalty orders
A Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a pecuniary penalty order.
150 Recovery of a pecuniary penalty
If a Court orders a person to pay a pecuniary penalty:
(a) the penalty is payable to the Commonwealth; and
(b) the Commonwealth may enforce the order as if it were a judgment of the Court.
Subdivision B—Civil penalty proceedings and criminal proceedings
151 Civil proceedings after criminal proceedings
A Court must not make a pecuniary penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence against a law of the Commonwealth or a law of a State constituted by conduct that is substantially the same as the conduct constituting the contravention.
152 Criminal proceedings during civil proceedings
(1) Proceedings for a pecuniary penalty order against a person for a contravention of a civil penalty provision are stayed if:
(a) criminal proceedings for an offence against a law of the Commonwealth or a law of a State are started, or have already been started, against the person; and
(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.
(2) The proceedings for the order (the civil proceedings) may be resumed if the person is not convicted of the offence. Otherwise:
(a) the civil proceedings are dismissed; and
(b) costs must not be awarded in relation to the civil proceedings.
153 Criminal proceedings after civil proceedings
Criminal proceedings for an offence against a law of the Commonwealth or a law of a State may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a pecuniary penalty order has been made against the person.
154 Evidence given in proceedings for penalty not admissible in criminal proceedings
Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings for an offence against a law of the Commonwealth or a law of a State against the individual if:
(a) the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.
However, this does not apply to criminal proceedings in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.
Subdivision C—Miscellaneous
154A Ancillary contravention of civil penalty provisions
(1) A person must not:
(a) attempt to contravene a civil penalty provision; or
(b) aid, abet, counsel or procure a contravention of a civil penalty provision; or
(c) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or
(d) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision; or
(e) conspire with others to effect a contravention of a civil penalty provision.
Civil penalty provision
(2) A person who contravenes subsection (1) in relation to a civil penalty provision is taken to have contravened the provision.