Water Act 2007

This section applies if the ACCC, the Chairperson of the ACCC or a Deputy Chairperson of the ACCC has reason to believe that a person is capable of giving information, producing documents or giving evidence relating to a matter referred to in subsection (3).

A member of the ACCC may, by notice in writing given to that person (whether in Australia or outside Australia), require the person to do one or more of the following:

to give to the ACCC, by writing signed by the person, within the time and in the manner specified in the notice, any such information;

to produce to the ACCC, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or

to appear before the ACCC, or before a member of the staff assisting the ACCC who is an SES employee or an acting SES employee and who is specified in the notice, at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.

For the purposes of subsection (1), the matter must be a matter:

that constitutes, or may constitute, a contravention of one or more of the following:

Part 5 of this Act or regulations made under Part 5 of this Act;

the Water Markets Intermediaries Code;

Part 5A of this Act or regulations made under Part 5A of this Act;

an undertaking under section 163 of this Act; or

that is relevant to the performance of a function or the exercise of a power conferred on the ACCC by or under a provision of this Act, regulations made under this Act or the Water Markets Intermediaries Code;

A member of the ACCC may exercise, or continue to exercise, a power under subsection (2) in relation to a matter referred to in that subsection until:

the ACCC commences proceedings in relation to the matter (other than proceedings for an injunction, whether interim or final); or

the close of pleadings in relation to an application by the ACCC for a final injunction in relation to the matter.

A person must not:

refuse or fail to comply with a notice under subsection (2);

in purported compliance with such a notice, knowingly give information or evidence that is false or misleading.

A person is liable to a civil penalty if:

the person refuses or fails to comply with a notice under subsection (2); or

in purported compliance with such a notice, knowingly gives information or evidence that is false or misleading.

Paragraph (5)(a) does not apply to the extent that the person is not capable of complying with the notice.

A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

Paragraph (5A)(a) does not apply to the extent that the person is not capable of complying with the notice.

A defendant bears an evidential burden in relation to the matters in this subsection: see section 154E.

Paragraph (5)(a) does not apply to the extent that:

the notice relates to producing documents; and

the person proves that, after a reasonable search, the person is not aware of the documents; and

the person provides a written response to the notice, including a description of the scope and limitations of the search.

A defendant bears a legal burden in relation to the matter in paragraph (b): see section 13.4 of the Criminal Code.

Paragraph (5A)(a) does not apply to the extent that:

the notice relates to producing documents; and

the person proves that, after a reasonable search, the person is not aware of the documents; and

the person provides a written response to the notice, including a description of the scope and limitations of the search.

Without limiting paragraphs (7)(b) and (7A)(b), a determination of whether a search is reasonable for the purposes of those paragraphs may take into account one or more of the following:

the nature and complexity of the matter to which the notice relates;

the number of documents involved;

the ease and cost of retrieving a document relative to the resources of the person who was given the notice;

any other relevant matter.

This section does not require a person:

to give information or evidence that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or

to produce a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or

to give information or evidence, or to produce a document, that would disclose the deliberations of the Cabinet of a State or Territory.

A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code and section 154E of this Act.

This section does not require a person to produce a document that would disclose information that is the subject of legal professional privilege.

A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code and section 154E of this Act.