73ATaking water when not permitted under State law—basic contravention

73A  Taking water when not permitted under State law—basic contravention  (a) the person engages in conduct; and  (b) the conduct results in water being taken from a water resource; and  (c) a water resource plan for a water resource plan area applies to the water resource; and  (d) the taking of the water would constitute a contravention of the law of a State if any fault element or state of mind requirement were to be satisfied in relation to the taking of the water (the potential State contravention).  (2) A person commits an offence if the person contravenes subsection (1). Penalty: Imprisonment for 3 years or 180 penalty units, or both.  (3) For the purposes of subsection (2):  (a) recklessness applies to paragraph (1)(b); and  (b) strict liability applies to paragraphs (1)(c) and (d).  (4) In a prosecution for an offence against subsection (2), it is not necessary to prove the existence of any fault element or state of mind requirement in relation to the potential State contravention.  (5) A person is liable to a civil penalty if the person contravenes subsection (1). Note: In proceedings against a person for a contravention of a civil penalty provision, it is generally not necessary to prove the person’s state of mind (see section 154C).  (a) for an individual—1,000 penalty units; or  (b) for a body corporate—10,000 penalty units. Presumption about taking water by means of works  (6) For the purposes of subsection (5), if water was taken from a water resource by means of works that were on or beneath land (whether or not the works were attached to the land) at any time when the water was taken, then it must be presumed (in the absence of evidence to the contrary) that the water was taken by:  (a) unless paragraph (b) applies, the person (the owner) who owned the land at any time when the water was taken; or  (b) if a person other than the owner occupied the land at all times when the water was taken—that person. Defences  (7) In a proceeding against a person (the first person) for an alleged contravention of subsection (1), it is not necessary for the person who instituted the proceeding to prove that no exception, exemption, excuse, qualification or justification provided by the law of the State applies in relation to the potential State contravention.  (8) However:  (a) the first person may rely on an exception, exemption, excuse, qualification or justification referred to in subsection (7) if the exception, exemption, excuse, qualification or justification does not involve determining the first person’s state of mind; and  (b) if the first person wishes to rely on such an exception, exemption, excuse, qualification or justification, the first person bears an evidential burden in relation to that matter. Note: For evidential burden, see subsection 4(1) of this Act.  (9) To avoid doubt, nothing in subsection (7) or (8) is intended to exclude the operation of Part 2.3 of the Criminal Code or section 154D of this Act (mistake of fact in relation to contraventions of civil penalty provisions) in relation to an alleged contravention of subsection (1).