(e) indicates that the Minister will consider exercising the step‑in power if the action or actions are not taken within the time referred to in paragraph (d); and
(f) requests the affected Basin State to respond to the notice within the period specified in the notice.
(9) The period specified under paragraph (8)(f) must end at least 1 month after the notice under subsection (8) is given to the affected Basin State.
(10) A copy of the notice under subsection (8) must be given to the relevant State Ministers of each of the other Basin States.
Affected Basin State response to formal notice
(11) The affected Basin State may respond to the notice under subsection (8) within:
(a) the period specified under paragraph (8)(f); or
(b) such longer period as the Minister allows.
(12) In its response to the notice under subsection (8), the affected Basin State may:
(a) raise any issues that the Basin State considers appropriate; and
(b) draw attention to any facts or matters in relation to the circumstances that the Basin State considers should be taken into account; and
(c) draw attention to any mitigating factors in relation to the circumstances; and
(d) propose a variation of, or an alternative to, the action or actions specified under paragraph (8)(c).
Notice of intention to proceed to a decision
(13) If:
(a) the affected Basin State does not respond under subsection (11); or
(b) the affected Basin State responds under subsection (11) and the Minister, having considered the response, intends to proceed to consider whether to exercise the step‑in power;
the Minister must give the Basin State a notice that:
(c) indicates that the Minister intends to proceed to consider whether to exercise the step‑in power; and
(d) sets out the Minister’s reasons for intending to do so.
Decision to exercise step‑in power
(14) The Minister may exercise the step‑in power only if:
(a) the process provided for in subsections (2) to (13), or that process as varied by agreement in writing between the Minister and the affected Basin State, has been followed; and
(b) the period of 2 weeks starting on the day on which the Minister gave the notice under subsection (13) has ended; and
(c) the Minister has considered the response (if any) of the affected Basin State under subsection (11); and
(d) the Minister is satisfied that:
(i) circumstances that give rise to the step‑in power exist; and
(ii) the circumstances, if not dealt with, will materially and adversely impact on the efficient or effective implementation of the Basin Plan; and
(iii) the exercise of the step‑in power would be an effective means for dealing with the circumstances; and
(iv) there is no other feasible and effective alternative way of dealing with the circumstances.
(15) If the Minister decides to exercise the step‑in power, the Minister must set out, in the document by which the step‑in power is exercised, when the exercise of the step‑in power will end.
(16) Without limiting subsection (15), the document may specify that the exercise of the step‑in power will end:
(a) at the end of a particular period of time; or
(b) when a specified action is taken; or
(c) when specified circumstances exist; or
(d) when the Minister is satisfied that specified conditions have been met.
(17) The extent, and duration, of the exercise of the step‑in power must be limited to what is reasonable to deal with the circumstances that give rise to the exercise of the step‑in power.
Notices not legislative instruments
(18) A notice under subsection (2), (8) or (13) is not a legislative instrument.
Division 3A—Offences and civil penalty provisions
Subdivision A—Contraventions of laws relating to taking water from a water resource
73A Taking water when not permitted under State law—basic contravention
(1) A person contravenes this subsection if:
(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).
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Note: See section 170A in relation to the physical elements of the offence.
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.
Civil penalty provision
(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).
Civil penalty:
(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).
73B Taking water when not permitted under State law—aggravated contravention
(1) A person contravenes this subsection if:
(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.
Fault‑based offence
(2) A person commits an offence if the person contravenes subsection (1).
Note: See section 170A in relation to the physical elements of the offence.
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.
Civil penalty provision
(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).
Civil penalty:
(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).
Definitions
(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.
73C Constitutional basis of sections 73A and 73B
Sections 73A and 73B rely on the Commonwealth’s legislative powers under paragraph 51(xxix) (external affairs) of the Constitution as it relates to giving effect to Australia’s obligations under relevant international agreements, in particular:
(a) paragraph 1 of Article 3 and paragraph 1 of Article 4 of the Ramsar Convention; and
(b) subparagraphs (a), (c) to (e) and (k) of Article 8 and subparagraph (a) of Article 10 of the Biodiversity Convention.
73D Additional operation of sections 73A and 73B
(1) In addition to section 73C, sections 73A and 73B have effect as provided by this section.
Corporations
(2) Each of sections 73A and 73B also has the effect it would have if the relevant contravening conduct were expressly confined to:
(a) conduct by a constitutional corporation; or
(b) conduct by another person that affects the activities of a constitutional corporation.
Trade and commerce
(3) Each of sections 73A and 73B also has the effect it would have if the relevant contravening conduct were expressly confined to conduct that takes place in the course of trade and commerce:
(a) with other countries; or
(b) among the States; or
(c) between a State and a Territory.
Territories
(4) Each of sections 73A and 73B also has the effect it would have if the relevant contravening conduct were expressly confined to conduct that takes place in a Territory.
Agencies of the Commonwealth
(5) Each of sections 73A and 73B also has the effect it would have if the relevant contravening conduct were expressly confined to conduct by an agency of the Commonwealth.
Definitions
(6) In this section:
conduct includes an act or omission.
relevant contravening conduct, in relation to section 73A or 73B, means conduct that constitutes, or would constitute, a contravention of a provision of that section.
73E Restrictions on taking action under Part 8 or 10AA in relation to alleged contravention of section 73A or 73B
(1) The Inspector‑General or an authorised compliance officer must not take action under Part 8 or 10AA in relation to an alleged contravention of section 73A or 73B unless the Inspector‑General has given the appropriate agency of the State where the contravention is alleged to have occurred a written notice stating that:
(a) the Inspector‑General intends to take action under Part 8 or 10AA in relation to the alleged contravention; and
(b) the appropriate agency of the State may, within 28 days after receiving the notice, notify the Inspector‑General, in writing, that the appropriate agency of the State is investigating or taking other enforcement action in relation to the conduct constituting the alleged contravention.
(2) If:
(a) under subsection (1), the Inspector‑General gives the appropriate agency of a State a written notice in relation to an alleged contravention; and
(b) within 28 days after receiving the notice, the appropriate agency of the State notifies the Inspector‑General, in writing, under paragraph (1)(b);
the Inspector‑General or an authorised compliance officer must not, within 3 months after the Inspector‑General receives the notification, take action under Part 8 or 10AA in relation to the alleged contravention.
(3) Despite subsection (2), if, within 3 months after the Inspector‑General receives a notification from the appropriate agency of a State under paragraph (1)(b), the appropriate agency of the State:
(a) withdraws the notification by written notice to the Inspector‑General; or
(b) requests the Inspector‑General, in writing, to take action under Part 8 or 10AA in relation to the relevant alleged contravention;
the Inspector‑General or an authorised compliance officer may, at any time after receiving the withdrawal notice or request, take action under Part 8 or 10AA in relation to the relevant alleged contravention.
(4) A failure to comply with subsection (1) or (2) in relation to an alleged contravention does not affect the validity of any action taken by the Inspector‑General or an authorised compliance officer under this Act in relation to the alleged contravention.
(5) A notice or notification under this section is not a legislative instrument.
(6) To avoid doubt, subsection (2) does not prevent the Inspector‑General from exercising powers under this Act, other than under Part 8 or 10AA, during the 3 month period to which that subsection applies in relation to conduct constituting an alleged contravention of section 73A or 73B.
Note: For example, the Inspector‑General may disclose information to a State or other body under Division 5 of Part 9A.
Subdivision B—Contraventions of the Basin Plan
73F Failing to give reasons for restricting trade of water delivery right as required by the Basin Plan
(1) A person contravenes this subsection if:
(a) the person is required to give a notification under subsection 12.30(1) of the Basin Plan; and
(b) the person fails to give the notification in accordance with subsection 12.30(2) of the Basin Plan.