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. Alternative verdict  (5) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 73A(2), if:  (a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and  (b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 73A(2); and  (c) the defendant has been accorded procedural fairness in relation to that finding of guilt.  (6) 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—5,000 penalty units; or  (b) for a body corporate—50,000 penalty units. Presumption about taking water by means of works  (7) For the purposes of subsection (6), 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  (8) 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.  (9) However:  (a) the first person may rely on an exception, exemption, excuse, qualification or justification referred to in subsection (8) 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.  (10) To avoid doubt, nothing in subsection (8) or (9) 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).  (11) In this section: environment includes environmental assets and environmental outcomes. groundwater SDL resource unit has the same meaning as in the Basin Plan. harm includes direct harm, indirect harm, and the cumulative effect of any harm. surface water SDL resource unit has the same meaning as in the Basin Plan. tier 3 water sharing arrangements means the tier 3 water sharing arrangements provided for in the Agreement.