(3) To avoid doubt, the Court may make a relinquishment order in relation to the contravention of a civil penalty provision even if a pecuniary penalty order could be, or has been, made in relation to the contravention of the civil penalty provision.
Division 7—Enforcement notices
165 Inspector‑General may issue an enforcement notice
(1) This section applies if the Inspector‑General is satisfied that a person:
(a) has contravened, is contravening or is likely to contravene a provision of Part 2 or of the regulations made for the purposes of Part 2; or
(b) has engaged in, is engaging in or is likely to engage in conduct that:
(i) was, is or would be inconsistent with the Basin Plan or a water resource plan; or
(ii) prejudiced, is prejudicing, or would prejudice, the effectiveness or the implementation of the Basin Plan or a water resource plan; or
(iii) had, is having or would have an adverse effect on the effectiveness or the implementation of the Basin Plan or a water resource plan; or
(c) has omitted, is omitting or is likely to omit to perform an act, where the omission:
(i) was, is or would be inconsistent with the Basin Plan or a water resource plan; or
(ii) prejudiced, is prejudicing, or would prejudice, the effectiveness or the implementation of the Basin Plan or a water resource plan; or
(iii) had, is having or would have an adverse effect on the effectiveness or the implementation of the Basin Plan or a water resource plan.
(2) The Inspector‑General may, by written notice given to the person, direct the person to take the action specified in the notice for any or all of the following purposes:
(a) to ensure that the person does not engage in conduct of that kind in the future;
(b) to ensure that the person does not omit to perform acts of that kind in the future;
(c) to remedy, or make good, any adverse consequences of the conduct, or the omission, on the health or continued availability of Basin water resources.
Note: The Inspector‑General’s power to direct a person under this subsection is limited as provided by subsection (6).
(3) Without limiting paragraph (2)(c), the Inspector‑General may direct the person under subsection (2) not to exercise some or all of:
(a) the water access rights; or
(b) the irrigation rights; or
(c) the water delivery rights;
that the person holds.
(4) A notice under subsection (2) must:
(a) set out the name of the person to whom the notice is given; and
(b) set out brief details of the alleged contravention, likely contravention, conduct, likely conduct, omission or likely omission; and
(c) contain a statement about the effect of section 166; and
(d) if it is given in relation to an alleged contravention—be given less than 6 years after contravention.
(5) The Inspector‑General may give a person a notice under subsection (2) in relation to conduct, or an omission, even if that conduct or omission constitutes an offence against, or a contravention of, a law of a State or a Territory.
Application of this section
(6) If the Inspector‑General is satisfied that a person:
(a) has engaged in, is engaging in or is likely to engage in conduct referred to in paragraph (1)(b); or
(b) has omitted, is omitting or is likely to omit to perform an act and the omission is covered by paragraph (1)(c);
the Inspector‑General may direct the person under subsection (2) only if:
(c) the direction gives effect to a relevant international agreement; or
(d) the person is a constitutional corporation; or
(e) the direction relates to conduct or an omission that has affected, is affecting or is likely to affect the activities of a constitutional corporation; or
(f) the direction relates to conduct or an omission that took place, is taking place or is likely to take place in the course of trade or commerce:
(i) with other countries; or
(ii) among the States; or
(iii) between a State and a Territory; or
(g) the direction relates to conduct or an omission that took place, is taking place or is likely to take place in a Territory; or
(h) the direction relates to conduct that took place, is taking place or is likely to take place using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution); or
(i) the person is an agency of the Commonwealth.
166 Failing to comply with enforcement notice
(1) A person contravenes this subsection if:
(a) the person has been given a notice under subsection 165(2); and
(b) the person fails to comply with the direction in the notice.
Strict liability offence
(2) A person commits an offence of strict liability if the person contravenes subsection (1).
Note: See section 170A in relation to the physical elements of the offence.
Penalty: 30 penalty units.
(3) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day the person is convicted of the offence or any later day) during which the contravention continues.
Civil penalty provision
(4) 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: 600 penalty units.
(5) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day a relevant pecuniary penalty order is made against the person or any subsequent day) during which the contravention continues.
167 Discharge or variation of enforcement notices
The Inspector‑General may vary or revoke a notice given to a person under section 165. The variation or revocation must be by written notice given to the person.
Division 7A—Public warning notices
167A Inspector‑General may issue public warning notice
(1) The Inspector‑General may issue to the public a written notice containing a warning about the conduct of a person if:
(a) the Inspector‑General reasonably suspects that the conduct may constitute a contravention of:
(i) section 34, 35, 58 or 59; or
(ii) a provision of Division 3A of Part 2; and
(b) the Inspector‑General is satisfied that one or more of the following has occurred, is occurring or is likely to occur, as a result of the conduct:
(i) injury or damage to human beings;
(ii) damage to property;
(iii) harm to, or loss of, Basin water resources; and
(c) the Inspector‑General is satisfied that it is in the public interest to issue the notice.
Note 1: The power conferred by this subsection may be delegated only to an SES employee or an acting SES employee (see subsection 215W(3)).
Note 2: No civil proceeding lies against the Inspector‑General for loss, damage or injury of any kind suffered by another person as a result of the issue, in good faith, of a notice under this subsection (see section 215X).
(2) A notice issued under subsection (1) is not a legislative instrument.
(3) In this section:
conduct includes an act or omission.
Division 8—Liability of executive officers of corporations
168 Civil penalties for executive officers of bodies corporate
(1) If:
(a) a body corporate contravenes a civil penalty provision; and
(b) an executive officer of the body knew that, or was reckless or negligent as to whether, the contravention would occur; and
(c) the officer was in a position to influence the conduct of the body in relation to the contravention; and
(d) the officer failed to take reasonable steps to prevent the contravention;
the officer contravenes this subsection.
(2) Subsection (1) is a civil penalty provision.
(3) Under section 147, a Court may order a person contravening subsection (1) to pay a pecuniary penalty not more than the pecuniary penalty the Court could order an individual to pay for contravening the civil penalty provision referred to in paragraph (1)(a).
169 Did an executive officer take reasonable steps to prevent contravention?
(1) For the purposes of section 168, in determining whether an executive officer of a body corporate failed to take reasonable steps to prevent a contravention to which this Part applies, a Court is to have regard to:
(a) what action (if any) the officer took directed towards ensuring the following (to the extent that the action is relevant to the contravention):
(i) that the body arranges regular professional assessments of the body’s compliance with this Act, the Basin Plan, the regulations, the water charge rules and the water market rules;
(ii) that the body implements any appropriate recommendations arising from such an assessment;
(iii) that the body’s employees, agents and contractors have a reasonable knowledge and understanding of the requirements to comply with this Act, the Basin Plan, the regulations, the water charge rules and the water market rules in so far as those requirements affect the employees, agents or contractors concerned; and
(b) what action (if any) the officer took when he or she became aware that the body was contravening:
(i) this Act; or
(ia) the Basin Plan; or
(ii) the regulations; or
(iii) the water charge rules; or
(iv) the water market rules.
(2) This section does not, by implication, limit the generality of section 168.
Division 9—Conduct of directors, employees and agents
170 Conduct of directors, employees and agents
Bodies corporate—conduct
(1) Any conduct engaged in on behalf of a body corporate:
(a) by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;
is to be taken, for the purposes of this Act and each legislative instrument made under this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
Bodies corporate—state of mind
(2) If, for the purposes of this Act or any legislative instrument made under this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a person as mentioned in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Persons other than bodies corporate—conduct
(3) Any conduct engaged in on behalf of a person other than a body corporate:
(a) by an employee or agent of the person within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first‑mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;
is to be taken, for the purposes of this Act and each legislative instrument made under this Act, to have been engaged in also by the first‑mentioned person unless the first‑mentioned person establishes that the first‑mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.
Persons other than bodies corporate—state of mind
(4) If, for the purposes of this Act or any legislative instrument made under this Act, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a person as mentioned in paragraph (3)(a) or (b); and
(b) that the person had that state of mind.
Reasonable precautions
(5) For the purposes of subsection (1) or (3), in determining whether a body corporate or other person took reasonable precautions and exercised due diligence to avoid particular conduct, a Court must have regard to what steps (if any) the body or person took directed towards ensuring the following (to the extent that the steps are relevant to the conduct):
(a) that the body or person arranges regular professional assessments of the body’s or person’s compliance with this Act and each legislative instrument made under this Act;
(b) that the body or person implements any appropriate recommendations arising from such an assessment;
(c) that the directors of the body, or the employees or agents of the body or person, have a reasonable knowledge and understanding of the requirements to comply with this Act and each legislative instrument made under this Act in so far as those requirements affect the directors, employees or agents concerned.
Meaning of state of mind
(6) A reference in subsection (2) or (4) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Meaning of director
(7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.
Meaning of engage in conduct
(8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
Division 10—General rules about offences and civil penalty provisions
170A Physical elements of offences
(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence.
(2) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct provision.
Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.
170B Contravening an offence provision or a civil penalty provision
(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty.
(2) For the purposes of this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.
Part 9—Murray‑Darling Basin Authority (administrative provisions)
Division 1—Authority’s establishment, functions, powers and liabilities
171 Establishment
The Murray‑Darling Basin Authority is established by this section.
172 Authority’s functions
Authority’s functions
(1) The Authority has the following functions:
(a) such functions as are conferred on the Authority by:
(i) Part 2 (Management of Basin water resources); and
(iii) Part 10 (Murray‑Darling Basin Authority (special powers));
(b) to measure, monitor and record the quality and quantity of the Basin water resources, including measuring, monitoring and recording:
(i) flows of surface water forming part of the Basin water resources; and
(ii) levels and pressures of ground water forming part of the Basin water resources; and
(iii) inflows to river flow control works; and
(iv) volumes held within river flow control works; and
(v) the taking of water from the Basin water resources; and
(vi) interception activity;
Note: The Authority may adopt Basin State records, and request the Basin States to take these measurements etc. (see subsection (2)).
(c) to measure, monitor and record the condition of water‑dependent ecosystems associated with the Basin water resources;
Note: The Authority may adopt Basin State records, and request the Basin States to take these measurements etc. (see subsection (2)).
(d) to support, encourage and conduct research and investigations about the Basin water resources, including research and investigations about:
(i) using the Basin water resources in an equitable, efficient and sustainable manner; and
(ii) conserving inflows to, and other sources of, the Basin water resources; and
(iii) improving the quality of the Basin water resources; and
(iv) improving the condition of water‑dependent ecosystems connected with the Basin water resources; and
(v) the desirability and practicality of measures that could help achieve any of the objectives set out in the above subparagraphs;
(e) to develop, or assist the development of, measures for the equitable, efficient and sustainable use of the Basin water resources (including measures for the delivery of environmental water);
(ea) to develop, in consultation with the Basin States, an integrated water model for the Murray‑Darling Basin;
(f) to implement, or coordinate the implementation of, measures developed in accordance with paragraph (e);
(g) to make recommendations to:
(i) the Commonwealth; or
(ii) a Basin State; or
(iii) an agency of the Commonwealth or a Basin State;
about any matter (including the carrying out of any works or other measures by the Commonwealth, State or agency) that the Authority considers could in any way affect the quality or quantity of the Basin water resources;
(h) to collect, analyse and interpret information about the Basin water resources and water‑dependent ecosystems;
(i) to disseminate information about the Basin water resources, and water‑dependent ecosystems, to the extent that the Authority considers it desirable to do so;
(ia) to engage the Indigenous community on the use and management of Basin water resources;
(j) to engage and educate the Australian community about the Basin water resources;
(k) such other functions as are conferred on the Authority by this Act, the regulations or by or under any other law of the Commonwealth;
(l) if the Minister consents—such other functions as are conferred on the Authority by or under any law of a State;