73BTaking water when not permitted under State law—aggravated contravention

73B  Taking water when not permitted under State law—aggravated 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); and

 (e) any of the following circumstances exists:

 (i) tier 3 water sharing arrangements are in place when the water is taken;

 (ii) the water is taken from a place that is downstream from where held environmental water is, or was, being delivered during a period of environmental watering, and the taking of some or all of the water occurred within the period of 60 days starting on the first day the held environmental water started to be delivered;

 (iii) the circumstance in paragraph 6.12(1)(a) of the Basin Plan exists in relation to the surface water SDL resource unit from which the water is taken, and at the time the water is taken the State is taking, or is proposing to take, steps of the kind referred to in subsection 6.12(5) of the Basin Plan in relation to that circumstance;

 (iv) the circumstance in paragraph 6.12C(1)(a) of the Basin Plan exists in relation to the groundwater SDL resource unit from which the water is taken, and at the time the water is taken the State is taking, or is proposing to take, steps of the kind referred to in subsection 6.12C(5) of the Basin Plan in relation to that circumstance;

 (v) the taking of the water significantly contributes to, or is likely to significantly contribute to, harm to the environment in a State other than the State where the water was taken;

 (vi) the taking of the water significantly contributes to, or is likely to significantly contribute to, serious harm to the environment;

 (vii) the water is taken from a wetland (including declared Ramsar wetlands) that is protected under a law of the Commonwealth or a law of a State.

 (2) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

 (3) For the purposes of subsection (2):

 (a) recklessness applies to paragraphs (1)(b) and (e); 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.