Part 5Part 5 Legal proceedings and appeals
(1) If a corporation commits an offence against this Act or the regulations:(a) each person who is a director of the corporation, and(b) each person who is concerned in the management of the corporation,is taken to have committed the same offence if the person knowingly authorised or permitted the act or omission constituting the offence.(2) A person may be proceeded against and convicted under this section whether or not the corporation has been proceeded against or convicted.(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation.
363A Offences by joint holders of access licence or approval
(1) If an offence against this Act or the regulations arises in relation to an access licence or approval, each co-holder of the licence or approval is taken to have committed the offence.(2) A co-holder of a licence or approval is not guilty of such an offence if the co-holder establishes that:(a) the offence was committed by some other person (whether or not another co-holder of the licence or approval), and(b) the other person was not associated with the co-holder at the time the offence was committed, and(c) the co-holder took all reasonable steps to prevent the offence from being committed.(3) A person is associated with a co-holder of a licence or approval for the purposes of subsection (2) (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the co-holder.(4) A person may, under this section, be proceeded against and convicted for an offence whether or not any other person has been proceeded against or convicted for the offence.
For the purposes of this Act:(a) a Tier 1 penalty corresponds to a maximum penalty of:(i) in the case of a corporation, 20,000 penalty units and, in the case of a continuing offence, a further penalty of 2,400 penalty units for each day the offence continues, or(ii) in any other case, imprisonment for 2 years or 10,000 penalty units, or both, and, in the case of a continuing offence, a further penalty of 1,200 penalty units for each day the offence continues, and(b) a Tier 2 penalty corresponds to a maximum penalty of:(i) in the case of a corporation, 10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,200 penalty units for each day the offence continues, or(ii) in any other case, 2,250 penalty units and, in the case of a continuing offence, a further penalty of 600 penalty units for each day the offence continues, and(c) a Tier 3 penalty corresponds to a maximum penalty of 100 penalty units.
(1) Proceedings for an offence against this Act or the regulations are to be disposed of summarily:(a) by the Local Court, or(b) by the Land and Environment Court in its summary jurisdiction.(2) Proceedings for an offence against this Act or the regulations may be commenced at any time within, but not later than, 3 years after the date on which the offence is alleged to have been committed.(3) Proceedings for an offence against this Act or the regulations may also be commenced at any time within, but not later than, 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer.(4) If subsection (3) is relied on for the purpose of commencing proceedings for an offence, the process by which the proceedings are commenced must contain particulars of the date on which evidence of the offence first came to the attention of any relevant authorised officer and need not contain particulars of the date on which the offence was committed.(5) The date on which evidence first came to the attention of any relevant authorised officer is the date specified in the process by which the proceedings are commenced, unless the contrary is established.(6) The maximum monetary penalty that may be imposed by the Local Court in proceedings for an offence against this Act or the regulations is:(a) the lesser of the following:(i) 200 penalty units,(ii) the maximum monetary penalty specified in respect of the offence, and(b) in the case of a continuing offence, 10 per cent of the further monetary penalty specified in respect of the offence for each day the offence continues.(7) The maximum penalty that may be imposed by the Land and Environment Court in proceedings for an offence against this Act or the regulations is the maximum penalty specified in respect of the offence.(8) In this section, evidence of an offence means evidence of any act or omission constituting the offence.
364A Matters to be considered in imposing penalty
(1) In imposing a penalty on a person for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):(a) the impact of the offence on other persons’ rights under this Act,(b) the market value of any water that has been lost, misused or unlawfully taken as a consequence of the commission of the offence,(c) the extent of the harm caused or likely to be caused to the environment (including, in particular, any water source or waterfront land) by the commission of the offence,(d) the practical measures that may be taken to prevent, control, abate or mitigate that harm,(e) the extent to which the person could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,(f) the extent to which the person had control over the causes that gave rise to the offence,(g) whether the offence was committed during a severe water shortage (that is, in contravention of an order in force under section 49A or 324),(h) the person’s intentions in committing the offence,(i) whether, in committing the offence, the person was complying with orders from an employer or supervising employee,(j) in the case of an offence of taking water in contravention of this Act, whether the water so taken had been released for environmental purposes and, if so, whether the person was aware of that fact,(k) any civil penalty that has been imposed on the person under section 60G in relation to the conduct from which the offence arises.(2) The court may take into consideration other matters that it considers relevant.
365 Penalty notices for certain offences
(1) In this section:penalty notice means a notice to the effect that, if the person served with the notice does not wish to have an alleged offence dealt with by a court, the person may pay, in accordance with the notice, the penalty specified in the notice.
penalty notice offence means an offence against this Act or the regulations that is declared by the regulations to be a penalty notice offence.
(2) An authorised officer may serve a penalty notice on a person who appears to the authorised officer to have committed a penalty notice offence.(3) The amount of the penalty to be specified in a penalty notice is the amount prescribed by the regulations for the alleged offence, being an amount not exceeding the maximum penalty which could be imposed for the offence by a court.(4) A penalty notice may be served personally or by post.(5) If the amount of the penalty prescribed by the regulations for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence.(6) Payment of a penalty under this section is not to be regarded as an admission of liability for the purposes of, nor is in any way to affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.(7) The Ministerial Corporation may withdraw a penalty notice at any time within 28 days after the date on which it was served and, in that event:(a) the amount payable under the notice ceases to be payable, and(b) any amount that has been paid under the notice is repayable to the person by whom it was paid, and(c) further proceedings for the offence in respect of which the notice was served may be taken against any person (including the person on whom the notice was served) as if the notice had never been served.(8) This section does not limit the operation of any other provision of this or any other Act or law in relation to proceedings that may be taken in respect of offences.
(1) A person who is guilty of an offence because the person contravenes a requirement made by or under this Act or the regulations (whether the requirement is imposed by a notice or otherwise) to do or stop doing something (whether or not within a specified period or before a particular time):(a) continues, until the requirement is complied with and despite the fact that any specified period has expired or time has passed, to be liable to comply with the requirement, and(b) is guilty of a continuing offence for each day the contravention continues.(2) This section does not apply to the extent that a requirement of a notice is revoked.
366 Legal proceedings do not affect, and are unaffected by, other action under this Act
The prosecution of a person for an offence against this Act or the regulations, or the issue of a penalty notice in respect of such an offence, does not affect, and is unaffected by, any other action taken under this Act in relation to the act or omission giving rise to the offence.
(1) A certificate that is issued by the Minister and that states:(a) that an instrument, a copy of which is set out in or annexed to the certificate, being an instrument purporting:(i) to be issued, made or given for the purposes of this Act, and(ii) to have been signed by the person authorised to issue, make or give the instrument, or by another person acting as delegate or on behalf of the person,was issued, made or given on a specified day, or(b) that a document, a copy of which is set out in or annexed to the certificate, is a copy of part of, or an extract from, a register or water allocation account kept under this Act, or(c) that an image, a copy of which is set out in or annexed to the certificate:(i) is a photograph or other remotely-sensed image of a specified kind, and(ii) portrays specified land as at a specified date, or(d) that an amount payable under this Act by a specified person has, or has not, been paid,is admissible in any legal proceedings and is evidence of the fact or facts so stated.(2) A certificate that is issued by the Minister and that states that, on a date or during a period specified in the certificate:(a) a specified person was, or was not, the holder of a specified access licence or approval, or(b) a specified access licence or approval was, at a specified time, revoked or suspended for a specified period or was revoked or suspended subject to specified conditions, or(c) a specified condition of an access licence or approval was, at a specified time, imposed or revoked, or(d) specified land was, or was not, the subject of a specified approval, or(e) specified land was, or was not, within a specified water management area, or(f) a specified part of a water source was, or was not, within a specified water management area, or(g) a specified water management work was, or was not, at a specified location within a specified parcel of land, or(h) a specified water management work was, or was not, the subject of a specified water management work approval, or(i) the conditions of a specified access licence or approval were, or were not, as so specified, or(j) the terms of a specified available water determination were, or were not, as so specified, or(k) a specified person was, or was not, an authorised officer in relation to a specified provision of this Act, or(l) a specified person was, or was not, an authorised analyst, or(m) a specified person was, or was not, a member of staff of the Department, or(n) a specified delegation under this Act was, or was not, in force, or(o) a specified access licence or approval was, or was not, in force, or(p) specified matters were, or were not, recorded in the Access Register or were, or were not, recorded in specified terms, or(q) the water allocations credited to, or debited or otherwise withdrawn from, the water allocation account for a specified access licence were, or were not, as so specified, or(r) a specified number of water allocations were, or were not, credited to, or debited or otherwise withdrawn from, the water allocation account for a specified access licence, or(s) a specified quantity of water was, or was not, ordered in relation to a specified access licence, or(s1) a specified quantity of water that was taken was, or was not, taken from a specified water source or part of a specified water source, or(s2) Part 2 or 3 of Chapter 3 of this Act does, or does not, apply to a specified water source or part of a specified water source, or(t) information required to be furnished to the Minister or an authorised officer pursuant to this Act was, or was not, received, or(u) an approved river gauge had, or had not, been maintained in accordance with the requirements (if any) prescribed by the regulations, or(v) the readings on an approved river gauge were, or were not, as so specified,is admissible in any legal proceedings and is evidence of the fact or facts so stated.(3) In any legal proceedings, evidence is not required:(a) as to the accuracy or reliability of an approved river gauge, or(b) as to the manner in which an approved river gauge was operated,unless evidence is adduced that the gauge was not accurate, was not reliable or was not properly operated.(4) For the purposes of this section, a document purporting to be a certificate under this section is, unless the contrary is proved, to be taken to be such a certificate.(5) In this section, approved river gauge means a gauge of a type or design approved by the Minister, by order published in the Gazette, for the purpose of measuring the level or flow of water in a river or lake.(6) In this section:(a) a reference to a water management work includes a reference to a corresponding kind of work to which Part 2, 5 or 8 of the Water Act 1912 extends, and(b) a reference to an approval or access licence includes a reference to an entitlement (within the meaning of clause 2 of Schedule 10) that confers a corresponding authority.
(1) A certificate of an authorised analyst stating the result of an analysis or examination is admissible in evidence in any legal proceedings as evidence of the facts stated in the certificate and the correctness of the result of the analysis or examination.(2) A certificate of an authorised analyst that, on receipt of a container containing a sample submitted to the analyst by an authorised officer or any other person, the container was sealed and the seal securing the container was unbroken is admissible in evidence in any legal proceedings as evidence:(a) of the facts stated in the certificate, and(b) that the sample was the same sample as the one obtained by the authorised officer or other person, and(c) that the sample had not been tampered with before it was received by the analyst.(3) For the purposes of this section, a document purporting to be a certificate under this section is, unless the contrary is proved, to be taken to be such a certificate.
(1) In any proceedings for an offence against this Act or the regulations being taken against a landholder:(a) the fact that a water management work is or has been located:(i) on the landholder’s land, or(ii) in a river or lake within the landholder’s land,gives rise to a rebuttable presumption that the work was constructed by the landholder, and(b) the fact that a water management work is being or has been used:(i) on the landholder’s land, or(ii) in a river or lake within the landholder’s land,gives rise to a rebuttable presumption that the work is being or has been used by the landholder, and(c) the fact that water is being or has been taken from a water source by means of a water supply work situated:(i) on the landholder’s land, or(ii) in a river or lake within the landholder’s land,gives rise to a rebuttable presumption that the water is being or has been taken by the landholder, and(d) the fact that water is being or has been discharged into a water source by means of a drainage work situated on the landholder’s land gives rise to a rebuttable presumption that the water is being or has been discharged by the landholder, and(e) the fact that water is being or has been used on the landholder’s land gives rise to a rebuttable presumption that the water is being or has been used by the landholder, and(f) the fact that a controlled activity is being or has been carried out on waterfront land within the landholder’s land gives rise to a rebuttable presumption that the activity is being or has been carried out by the landholder, and(g) the fact that an aquifer interference activity is being or has been carried out on the landholder’s land gives rise to a rebuttable presumption that the activity is being or has been carried out by the landholder.(2) In any proceedings for an offence against this Act or the regulations being taken against the holder of an approval for a water supply work, the fact that water is being or has been taken from a water source:(a) by means of the work, or(b) through metering equipment installed in connection with the work,gives rise to a rebuttable presumption that the holder of the approval is or has been using the work to take water from that water source.(3) In any proceedings for an offence against this Act or the regulations, the fact that a work of the kind referred to in:(a) the definition of drainage work in the Dictionary, or(b) paragraph (a), (b) or (c) of the definition of water supply work in the Dictionary,is capable of being used for the purpose referred to in that provision gives rise to a rebuttable presumption that the work has been constructed or used for that purpose.(4) This section does not limit the operation of section 60E or 91L.
368 Appeals to Land and Environment Court
(1) An appeal lies to the Land and Environment Court against any of the following decisions made by the Minister:(a) a decision refusing to grant an access licence,(b) a decision granting a designated access licence, if the appellant was an objector to the granting of the licence,(c) a decision imposing a discretionary condition on an access licence,(d) a decision fixing the term of an access licence,(e) a decision refusing consent to a dealing in an access licence,(f) a decision suspending or cancelling an access licence,(fa) a decision:(i) in relation to the recording of any matter in the Access Register, or(ii) in relation to the issue of any access licence certificate,(g) a decision refusing to grant an approval, other than a decision refusing to accept an application for an approval,(h) a decision granting a designated approval, if the appellant was an objector to the granting of the approval,(i) a decision imposing a discretionary condition on an approval,(j) a decision fixing the term of an approval,(k) a decision refusing to amend an approval in accordance with an application made by its holder,(l) a decision suspending or cancelling an approval,(la) a decision ordering an irrigation corporation to pay a civil penalty to the Minister,(m) a decision ordering a major utility or local water utility to pay a civil penalty to the Minister,(ma) a decision under section 60G,(n) a decision to give a direction to a person under Part 1,(o) a decision as to a person’s entitlement to compensation for damage arising from the exercise of a power of entry under Part 2.(2) Despite subsection (1):(a) no appeal lies against any decision made by the Minister on an application to which an objection has been made if:(i) in the case of the applicant, the Minister has dismissed the application as a consequence of the applicant having failed to participate in mediation or neutral evaluation proceedings, or(ii) in the case of the objector, the Minister has dismissed the objection as a consequence of the objector having failed to participate in mediation or neutral evaluation proceedings, and(b) no appeal lies against any decision made by the Minister pursuant to a report from a Commission of Inquiry under section 119 of the Environmental Planning and Assessment Act 1979, and(c) no appeal lies against a decision of the Minister to grant a licence under section 63A or 63B or to impose a discretionary condition on such a licence, and(d) no appeal lies against a decision of the Minister to impose a discretionary condition on a licence amended under section 68B.(3) An appeal is to be made in accordance with rules of court, but may not be made more than 28 days after the date on which the decision was made.(4) In addition to the appellant and the Minister:(a) the parties to an appeal made by an applicant for a designated access licence or designated approval against a decision refusing to grant the licence or approval include any objector to the granting of the licence or approval who, in accordance with rules of court, gives notice to the Land and Environment Court of the objector’s wish to become a party to the appeal, and(b) the parties to an appeal made by an objector to the granting of a designated access licence or designated approval against a decision granting the licence or approval include the applicant for the licence or approval.(5) The lodging of an appeal does not operate to stay action on the decision appealed against, except to the extent that the Land and Environment Court otherwise directs.(6) In this section:designated access licence means an access licence to which a person has a right of objection under section 62.
designated approval means an approval to which a person has a right of objection under section 93.