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Contents (2000 - 92)
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Water Management Act 2000 No 92
Current version for 1 November 2019 to date (accessed 19 November 2019 at 11:36)
Chapter 7 Part 5 Division 1
Division 1 Legal proceedings
363   Offences by corporations
(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.
363B   Penalties
For the purposes of this Act—
(a)  a Tier 1 penalty corresponds to a maximum penalty of—
(i)  in the case of a corporation, 45,500 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, 18,200 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, 4,550 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.
364   Proceedings for offences
(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 or an extreme event (that is, in contravention of an order in force under section 49A, 49B 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
(1)  An authorised officer may issue a penalty notice to a person if it appears to the authorised officer that the person has committed a penalty notice offence.
(2)  A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
(3)  The Fines Act 1996 applies to a penalty notice issued under this section.
Note.
 The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4)  The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).
(5)  The Minister may withdraw a penalty notice within 28 days after the date on which the penalty notice is issued.
(6)  If the penalty notice is withdrawn—
(a)  the amount payable under the penalty notice ceases to be payable, and
(b)  any amount paid under the penalty notice is repayable to the person by whom it was paid, and
(c)  further proceedings in respect of the alleged offence may be taken against any person (including against the person to whom the notice was issued) as if the notice had never been issued.
(7)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
365A   Continuing 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.
367   Evidentiary certificates
(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.
Note.
 See also section 11 (1) (e) of the Natural Resources Access Regulator Act 2017 and Schedule 2 to that Act.
367A   Evidence of analysts
(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.
367B   Rebuttable presumptions
(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.