WATER MANAGEMENT AMENDMENT BILL 2008

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WATER MANAGEMENT AMENDMENT BILL 2008

New South Wales Water Management Amendment Bill 2008 Contents Page 1 Name of Act 2 2 Commencement 2 3 Amendment of Water Management Act 2000 No 92 2 4 Amendment of other Acts 2 5 Repeal of Act 2 Schedule 1 Amendments relating to offences and penalties 3 Schedule 2 Amendments relating to directions and other enforcement measures 22 Schedule 3 Amendments relating to court orders and court proceedings 40 Schedule 4 Amendments relating to access licences 49 Schedule 5 Amendments relating to publication of proclamations, orders and notices 54 Schedule 6 Amendments relating to other matters 57 Schedule 7 Amendment of other Acts 64 b2008-081-18.d14

New South Wales Water Management Amendment Bill 2008 No , 2008 A Bill for An Act to amend the Water Management Act 2000 in relation to compliance and enforcement, access licences, publication of notices and orders and other miscellaneous matters; and for other purposes.

Clause 1 Water Management Amendment Bill 2008 The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Water Management Amendment Act 2008. 3 2 Commencement 4 (1) This Act commences on the date of assent to this Act, except as 5 provided by subsection (2). 6 (2) Schedules 14 and 7.2 and 7.3 commence on a day or days to be 7 appointed by proclamation. 8 3 Amendment of Water Management Act 2000 No 92 9 The Water Management Act 2000 is amended as set out in Schedules 10 16. 11 4 Amendment of other Acts 12 Each Act listed in Schedule 7 is amended as set out in that Schedule. 13 5 Repeal of Act 14 (1) This Act is repealed on the day following the day on which all of the 15 provisions of this Act have commenced. 16 (2) The repeal of this Act does not, because of the operation of section 30 17 of the Interpretation Act 1987, affect any amendment made by this Act. 18 Page 2

Water Management Amendment Bill 2008 Amendments relating to offences and penalties Schedule 1 Schedule 1 Amendments relating to offences and 1 penalties 2 (Section 3) 3 [1] Chapter 3, Part 2, Division 1A 4 Insert after Division 1: 5 Division 1A Offences 6 60A Taking water without, or otherwise than authorised by, an access 7 licence 8 (1) A person: 9 (a) who takes water from a water source to which this Part 10 applies, and 11 (b) who does not hold an access licence for that water source, 12 and 13 (c) who intentionally or negligently takes that water without 14 obtaining an access licence for that water source, 15 is guilty of an offence. 16 Tier 1 penalty. 17 (2) A person: 18 (a) who takes water from a water source to which this Part 19 applies, and 20 (b) who does not hold an access licence for that water source, 21 is guilty of an offence. 22 Tier 2 penalty. 23 (3) A holder of an access licence: 24 (a) who takes water from a water source to which this Part 25 applies otherwise than as authorised by the licence, and 26 (b) who intentionally or negligently takes that water without 27 obtaining an access licence that authorises the taking of 28 that water, 29 is guilty of an offence. 30 Tier 1 penalty. 31 (4) A holder of an access licence who takes water from a water 32 source to which this Part applies otherwise than as authorised by 33 the licence is guilty of an offence. 34 Tier 2 penalty. 35 Page 3

Water Management Amendment Bill 2008 Schedule 1 Amendments relating to offences and penalties (5) Without limiting subsections (3) and (4), a person takes water 1 otherwise than as authorised by an access licence if the person 2 takes water while the licence is suspended. 3 (6) Without limiting subsections (3), (4) and (5), a person takes water 4 otherwise than as authorised by a supplementary water access 5 licence if the person takes water otherwise than in accordance 6 with the terms of an order in force under section 70. 7 (7) It is a defence to a prosecution under this section in relation to the 8 taking of water from a water source to which this Part applies if 9 the accused person establishes that the water was taken: 10 (a) by means of a nominated water supply work for that water 11 source, or 12 (b) by means of a water supply work that, at all material times, 13 was nominated in relation to the interstate equivalent of an 14 access licence, 15 and was otherwise taken in accordance with the terms and 16 conditions of the access licence in connection with which it is 17 nominated. 18 (8) The defence established by subsection (7) (b) is not available 19 unless the Minister has been duly notified that the relevant water 20 supply work has been nominated as referred to in that paragraph. 21 60B Contravention of terms and conditions of access licence 22 A person who takes water pursuant to an access licence is guilty 23 of an offence if the person contravenes any term or condition of 24 the licence. 25 Tier 2 penalty. 26 60C Taking water for which there is no, or insufficient, water allocation 27 (1) A person: 28 (a) who takes water from a water source to which this Part 29 applies when there is no water credited to the access 30 licence by which the taking of water from that water source 31 is authorised, and 32 (b) who intentionally or negligently fails to ascertain whether 33 there is any water credited to that access licence, 34 is guilty of an offence. 35 Tier 1 penalty. 36 Page 4

Water Management Amendment Bill 2008 Amendments relating to offences and penalties Schedule 1 (2) A person who takes water from a water source to which this Part 1 applies when there is no water credited to the access licence by 2 which the taking of water from that water source is authorised is 3 guilty of an offence. 4 Tier 2 penalty. 5 (3) A person: 6 (a) who takes more water from a water source to which this 7 Part applies than is credited to the access licence by which 8 the taking of water from that water source is authorised, 9 and 10 (b) who intentionally or negligently fails to ascertain whether 11 there is sufficient water credited to that access licence, 12 is guilty of an offence. 13 Tier 1 penalty. 14 (4) A person who takes more water from a water source to which this 15 Part applies than is credited to the access licence by which the 16 taking of water from that water source is authorised is guilty of 17 an offence. 18 Tier 2 penalty. 19 (5) If a person who has the control or management of a water supply 20 work takes water by means of that work in contravention of 21 subsection (2) or (4), and the water supply work is nominated in 22 relation to an access licence held by some other person, both 23 persons are taken to have contravened that subsection. 24 (6) Either person referred to in subsection (5) may be proceeded 25 against and convicted for an offence under subsection (2) or (4), 26 as the case requires, whether or not the other person has been 27 proceeded against or convicted for such an offence. 28 60D Taking water otherwise than from a nominated water supply work 29 A person who takes water from a water source to which this Part 30 applies otherwise than by means of a nominated water supply 31 work for that water source is guilty of an offence. 32 Tier 2 penalty. 33 60E Liability of occupier of premises for certain offences 34 (1) Subject to section 60F, the occupier of premises at or from which 35 water is taken in contravention of a provision of this Division is 36 taken to have contravened that provision. 37 Page 5

Water Management Amendment Bill 2008 Schedule 1 Amendments relating to offences and penalties (2) Subsection (1) does not prevent proceedings being taken under 1 this Act against the person who actually committed the offence. 2 60F General defence 3 (1) It is a defence to a prosecution under this Division in relation to 4 a Tier 1 offence if the accused person establishes: 5 (a) that the commission of the offence was due to causes over 6 which the person had no control, and 7 (b) that the person took reasonable precautions and exercised 8 due diligence to prevent the commission of the offence. 9 (2) It is a defence to a prosecution under this Division in relation to 10 the taking of water from a water source to which this Part applies 11 if the accused person establishes: 12 (a) that the water was taken pursuant to a basic landholder 13 right, a consent given under section 71V or an order under 14 section 85A, or 15 (b) that the person was exempt, pursuant to this Act or the 16 regulations, from any requirement for an access licence in 17 relation to the taking of water from that water source. 18 (3) This Division does not prevent a person from taking water 19 pursuant to an entitlement in force under the Water Act 1912, 20 where entitlement has the same meaning as it has in Schedule 10. 21 60G Minister may charge for water illegally taken 22 (1) If satisfied on the balance of probabilities that a person has taken 23 water from a water source to which this Part applies in 24 contravention of this Division, the Minister: 25 (a) may impose on the person a charge for water taken (which 26 may include a penalty component) not exceeding 5 times 27 the value of the water so taken, as determined in 28 accordance with the regulations, and 29 (b) if the person holds an access licence, may order that any 30 water allocations credited or to be credited to the account 31 for the licence be debited up to 5 times the quantity of the 32 water so taken. 33 (2) Action under this section may not be taken against a person 34 unless the Minister: 35 (a) has given written notice to the person that the Minister 36 proposes to take such action, and 37 Page 6

Water Management Amendment Bill 2008 Amendments relating to offences and penalties Schedule 1 (b) has given the person a reasonable opportunity to make 1 submissions to the Minister with respect to the proposed 2 action, and 3 (c) has taken any such submissions into consideration. 4 60H Application of Division in relation to interstate licences 5 In this Division, a reference to an access licence includes a 6 reference to any licence of a similar nature (however described): 7 (a) that is granted under the law of another State or Territory, 8 and 9 (b) that is declared by the regulations to have the same effect 10 as an access licence for the purposes of this Division. 11 [2] Section 85B 12 Omit the section. 13 [3] Section 87C 14 Insert after section 87B: 15 87C Offences with respect to the Access Register 16 (1) A person must not: 17 (a) fraudulently obtain, or assist in fraudulently obtaining: 18 (i) the issue or delivery of an access licence certificate, 19 or 20 (ii) a recording in the Access Register, or 21 (iii) any alteration in any instrument or approved form 22 issued by the Minister, or 23 (b) fraudulently use, or assist in fraudulently using, any 24 approved form issued by the Minister, or 25 (c) by any false statement or misrepresentation obtain, or 26 attempt to obtain, an access licence certificate or 27 instrument evidencing any matter that may be recorded in 28 the Access Register. 29 Tier 2 penalty. 30 (2) Any recording in the Access Register obtained in contravention 31 of this section is void as between all parties to the fraud. 32 Page 7

Water Management Amendment Bill 2008 Schedule 1 Amendments relating to offences and penalties [4] Chapter 3, Part 3, Division 1A 1 Insert after Division 1: 2 Division 1A Offences 3 91A Using water without, or otherwise than as authorised by, a water 4 use approval 5 (1) A person: 6 (a) who uses water from a water source to which this Part 7 applies, and 8 (b) who does not hold a water use approval for that use, 9 is guilty of an offence. 10 Tier 2 penalty. 11 (2) A holder of a water use approval who uses water from a water 12 source to which this Part applies: 13 (a) otherwise than as authorised by the approval, or 14 (b) if an access licence specifies or restricts the purposes for 15 which the water may be used, otherwise than as authorised 16 by the licence, 17 is guilty of an offence. 18 Tier 2 penalty. 19 (3) Without limiting subsection (2), a person uses water otherwise 20 than as authorised by a water use approval if the person uses 21 water while the approval is suspended. 22 (4) This section does not apply to water that is supplied by a major 23 utility, local water utility or irrigation corporation or by a private 24 irrigation board or private water trust holding a water use 25 approval for the use concerned. 26 91B Constructing or using water supply work without, or otherwise 27 than as authorised by, a water supply work approval 28 (1) A person: 29 (a) who constructs or uses a water supply work, and 30 (b) who does not hold a water supply work approval for that 31 work, 32 is guilty of an offence. 33 Tier 2 penalty. 34 Page 8

Water Management Amendment Bill 2008 Amendments relating to offences and penalties Schedule 1 (2) A holder of a water supply work approval who constructs or uses 1 a water supply work otherwise than as authorised by the approval 2 is guilty of an offence. 3 Tier 2 penalty. 4 (3) Without limiting subsection (2), a person constructs or uses a 5 water supply work otherwise than as authorised by a water supply 6 work approval if the person constructs or uses such a work while 7 the approval is suspended. 8 (4) This section does not prevent a person from constructing or using 9 a drainage work or flood work in accordance with a drainage 10 work approval or flood work approval. 11 91C Constructing or using drainage work without, or otherwise than as 12 authorised by, a drainage work approval 13 (1) A person: 14 (a) who constructs or uses a drainage work, and 15 (b) who does not hold a drainage work approval for that work, 16 is guilty of an offence. 17 Tier 2 penalty. 18 (2) The holder of a drainage work approval who constructs or uses a 19 drainage work otherwise than as authorised by the approval is 20 guilty of an offence. 21 Tier 2 penalty. 22 (3) Without limiting subsection (2), a person constructs or uses a 23 drainage work otherwise than as authorised by a drainage work 24 approval if the person constructs or uses such a work while the 25 approval is suspended. 26 (4) This section does not prevent a person from constructing or using 27 a water supply work or flood work in accordance with a water 28 supply work approval or flood work approval. 29 91D Constructing or using flood work without, or otherwise than as 30 authorised by, a flood work approval 31 (1) A person: 32 (a) who constructs or uses a flood work, and 33 (b) who does not hold a flood work approval for that work, 34 is guilty of an offence. 35 Tier 2 penalty. 36 Page 9

Water Management Amendment Bill 2008 Schedule 1 Amendments relating to offences and penalties (2) The holder of a flood work approval who constructs or uses a 1 flood work in or in the vicinity of a river or lake, or within a 2 floodplain, otherwise than as authorised by the approval is guilty 3 of an offence. 4 Tier 2 penalty. 5 (3) Without limiting subsection (2), a person constructs or uses a 6 flood work otherwise than as authorised by a flood work approval 7 if the person constructs or uses such a work while the approval is 8 suspended. 9 (4) This section does not prevent a person from constructing or using 10 a water supply work or drainage work in accordance with a water 11 supply work approval or drainage work approval. 12 91E Carrying out controlled activity without, or otherwise than as 13 authorised by, a controlled activity approval 14 (1) A person: 15 (a) who carries out a controlled activity in, on or under 16 waterfront land, and 17 (b) who does not hold a controlled activity approval for that 18 activity, 19 is guilty of an offence. 20 Tier 2 penalty. 21 (2) The holder of a controlled activity approval who carries out a 22 controlled activity in, on or under waterfront land otherwise than 23 as authorised by the approval is guilty of an offence. 24 Tier 2 penalty. 25 (3) Without limiting subsection (2), a person carries out a controlled 26 activity otherwise than as authorised by a controlled activity 27 approval if the person carries out such an activity while the 28 approval is suspended. 29 (4) This section does not prevent a person: 30 (a) from constructing and using a water management work in 31 accordance with a water management work approval, or 32 (b) from carrying out an aquifer interference activity in 33 accordance with an aquifer interference approval. 34 91F Carrying out aquifer interference activity without, or otherwise 35 than as authorised by, an aquifer interference approval 36 (1) A person: 37 (a) who carries out an aquifer interference activity, and 38 Page 10

Water Management Amendment Bill 2008 Amendments relating to offences and penalties Schedule 1 (b) who does not hold an aquifer interference approval for that 1 activity, 2 is guilty of an offence. 3 Tier 2 penalty. 4 (2) The holder of an aquifer interference approval who carries out an 5 aquifer interference activity otherwise than as authorised by the 6 approval is guilty of an offence. 7 Tier 2 penalty. 8 (3) Without limiting subsection (2), a person carries out an aquifer 9 interference activity otherwise than as authorised by an aquifer 10 interference approval if the person carries out such an activity 11 while the approval is suspended. 12 (4) This section does not prevent a person: 13 (a) from constructing and using a water management work in 14 accordance with a water management work approval, or 15 (b) from carrying out a controlled activity in accordance with 16 a controlled activity approval, or 17 (c) from using a building or work that has been erected or 18 carried out in accordance with a controlled activity 19 approval. 20 91G Contravention of terms and conditions of approval 21 A person who constructs or uses a water management work, or 22 carries out a controlled activity or aquifer interference activity, 23 pursuant to an approval is guilty of an offence if the person 24 contravenes any term or condition of the approval. 25 Tier 2 penalty. 26 91H Failure to install or maintain metering equipment 27 (1) A person is guilty of an offence if the person fails to install any 28 metering equipment that, pursuant to: 29 (a) the conditions of an access licence or approval, or 30 (b) a direction under section 326, 31 the person is required to install in connection with a water supply 32 work or drainage work. 33 Tier 2 penalty. 34 (2) A person is guilty of an offence if the person fails to ensure the 35 proper operation of any metering equipment that, pursuant to: 36 (a) the conditions of an access licence or approval, or 37 Page 11

Water Management Amendment Bill 2008 Schedule 1 Amendments relating to offences and penalties (b) a direction under section 326, 1 the person is required to install in connection with a water supply 2 work or drainage work. 3 Tier 2 penalty. 4 91I Taking water when metering equipment not working 5 (1) A person: 6 (a) who takes water from a water source to which this Part 7 applies by means of a metered work while its metering 8 equipment is not operating properly, and 9 (b) who intentionally or negligently fails to ascertain whether 10 the metering equipment is operating properly, 11 is guilty of an offence. 12 Tier 1 penalty. 13 (2) A person who takes water from a water source to which this Part 14 applies by means of a metered work while its metering equipment 15 is not operating properly is guilty of an offence. 16 Tier 2 penalty. 17 (3) In this section, metered work means a water supply work in 18 connection with which metering equipment has been installed 19 pursuant to: 20 (a) the conditions of an access licence or approval, or 21 (b) a direction under section 326. 22 91J Failure to keep metering records 23 A person is guilty of an offence if the person fails to keep 24 metering records that, pursuant to: 25 (a) the conditions of an access licence or approval, or 26 (b) a direction under section 326, 27 the person is required to keep in connection with a water supply 28 work or drainage work. 29 Tier 2 penalty. 30 91K Meter tampering 31 (1) A person is guilty of an offence if the person interferes with, 32 damages, destroys or disconnects any metering equipment that 33 has been installed in connection with a water supply work or 34 drainage work, and does so intentionally or recklessly. 35 Tier 1 penalty. 36 Page 12

Water Management Amendment Bill 2008 Amendments relating to offences and penalties Schedule 1 (2) A person is guilty of an offence if the person interferes with, 1 damages, destroys or disconnects any metering equipment that 2 has been installed in connection with a water supply work or 3 drainage work. 4 Tier 2 penalty. 5 (3) Without limiting subsections (1) and (2), a person interferes with 6 metering equipment if the person unseals any sealed component 7 of the equipment, blocks any part of the equipment, attaches to 8 the equipment any device that is likely to affect the operation of 9 the equipment or disconnects the equipment from its source of 10 power. 11 (4) This section does not apply to anything that a duly qualified 12 person does to metering equipment for the sole purpose of 13 maintaining, repairing or replacing the equipment. 14 (5) In this section, duly qualified person means a person who has 15 such qualifications as are prescribed by the regulations. 16 91L Liability of occupier of premises for certain offences 17 (1) Subject to section 91M, the occupier of premises at which: 18 (a) a water management work has been constructed or used in 19 contravention of a provision of this Division, or 20 (b) a controlled activity or aquifer interference activity has 21 been carried out in contravention of a provision of this 22 Division, 23 is taken to have contravened that provision. 24 (2) Subsection (1) does not prevent proceedings being taken under 25 this Act against the person who actually committed the offence. 26 91M General defence 27 (1) It is a defence to a prosecution under this Division in relation to 28 a Tier 1 offence if the accused person establishes: 29 (a) that the commission of the offence was due to causes over 30 which the person had no control, and 31 (b) that the person took reasonable precautions and exercised 32 due diligence to prevent the commission of the offence. 33 (2) It is a defence to a prosecution under this Division in relation to 34 the doing of anything without an approval if the accused person 35 establishes: 36 (a) that the water was taken pursuant to a basic landholder 37 right, or 38 Page 13

Water Management Amendment Bill 2008 Schedule 1 Amendments relating to offences and penalties (b) that the person was exempt, pursuant to this Act or the 1 regulations, from any requirement for an approval in 2 relation to the doing of that thing. 3 (3) This Division does not prevent a person from doing anything 4 pursuant to an entitlement in force under the Water Act 1912, 5 where entitlement has the same meaning as it has in Schedule 10. 6 [5] Section 120 Entry on to land 7 Insert after section 120 (3): 8 (4) A person must not threaten, hinder, obstruct or delay any person 9 in the exercise of an irrigation corporation's functions under this 10 section. 11 Tier 2 penalty. 12 [6] Section 256 Construction of fences, structures and flood works 13 Omit the penalty at the end of section 256 (1). Insert instead: 14 Tier 2 penalty. 15 [7] Sections 318A and 318B 16 Insert after section 318: 17 318A Exposure of underground pipes 18 A person must not, except in an emergency or with lawful excuse, 19 open any ground so as to expose a water supply authority's pipe 20 or other work unless the person has given the water supply 21 authority at least 2 days' written notice of his or her intention to 22 do so. 23 Tier 2 penalty. 24 318B Unlicensed plumbing work 25 A person must not do any kind of plumbing work unless the 26 person: 27 (a) holds an endorsed contractor licence or a supervisor 28 certificate under the Home Building Act 1989 that 29 authorises the holder to do that kind of work, or 30 (b) does the work under the immediate supervision of the 31 holder of such a licence or certificate, or 32 Page 14

Water Management Amendment Bill 2008 Amendments relating to offences and penalties Schedule 1 (c) holds a tradesperson certificate under the Home Building 1 Act 1989 that authorises the holder to do that kind of work 2 under supervision, and does the work under the general 3 supervision of the holder of a licence or certificate referred 4 to in paragraph (a). 5 Tier 3 penalty. 6 [8] Chapter 7, Part 3 7 Omit the Part. Insert instead: 8 Part 3 Offences 9 342 Destruction, damage and interference with certain works 10 (1) A person must not destroy, damage or interfere with: 11 (a) any work that is owned by, or is under the control and 12 management of, the Minister, the Ministerial Corporation, 13 a water supply authority, an irrigation corporation, a 14 private irrigation board, a private drainage board or a 15 private water trust, or 16 (b) any mark, peg, stake or level fixed for the purposes of this 17 Act. 18 Tier 2 penalty. 19 (2) A person must not deposit anything in any work that is owned by, 20 or is under the control and management of, the Minister, the 21 Ministerial Corporation, a water supply authority, an irrigation 22 corporation, a private irrigation board, a private drainage board or 23 a private water trust. 24 Tier 2 penalty. 25 (3) A person is not guilty of an offence against this section if the 26 person establishes that the act giving rise to the alleged offence 27 was done with lawful authority. 28 343 Taking water from public or private works 29 (1) A person must not take water from any water supply work that is 30 owned by, or is under the control and management of, the 31 Minister, the Ministerial Corporation, a water supply authority, 32 an irrigation corporation, a private irrigation board, a private 33 drainage board or a private water trust, except with the authority 34 of the Minister, that corporation, board, authority or trust. 35 Tier 2 penalty. 36 Page 15

Water Management Amendment Bill 2008 Schedule 1 Amendments relating to offences and penalties (2) A person is not guilty of an offence against this section if the 1 person establishes that the act giving rise to the alleged offence 2 was done with lawful authority. 3 (3) In subsection (1), a reference to a water supply work, in relation 4 to a water supply authority, is a reference to a water supply work 5 within the meaning of Part 2 of Chapter 6. 6 344 False or misleading information 7 A person must not, in or in connection with any application under 8 this Act or the regulations, make a statement that the person 9 knows to be false or misleading in a material particular. 10 Tier 2 penalty. 11 345 Harm to aquifers and waterfront land 12 (1) A person who harms an aquifer or waterfront land, and does so 13 intentionally or negligently, is guilty of an offence. 14 Tier 1 offence. 15 (2) A person who harms an aquifer or waterfront land is guilty of an 16 offence. 17 Tier 2 offence. 18 (3) It is a defence to a prosecution under this section if the accused 19 person establishes that the conduct that harmed the aquifer or 20 waterfront land: 21 (a) was essential for the carrying out of: 22 (i) development in accordance with a development 23 consent within the meaning of the Environmental 24 Planning and Assessment Act 1979, or 25 (ii) an activity by a determining authority within the 26 meaning of Part 5 of that Act if the determining 27 authority has complied with that Part, or 28 (iii) an activity in accordance with an approval of a 29 determining authority within the meaning of Part 5 30 of that Act if the determining authority has complied 31 with that Part, or 32 (iv) a project approved under Part 3A of that Act, or 33 (b) was authorised to be done by or under the State Emergency 34 and Rescue Management Act 1989 or the State Emergency 35 Service Act 1989 and was reasonably necessary in order to 36 avoid a threat to life or property, or 37 Page 16

Water Management Amendment Bill 2008 Amendments relating to offences and penalties Schedule 1 (c) was authorised to be done by or under the Rural Fires Act 1 1997 in relation to any emergency fire fighting act within 2 the meaning of that Act. 3 (4) In this section, harm, in relation to an aquifer or waterfront land, 4 means any act or omission that adversely affects, the capacity of 5 the aquifer or waterfront land to hold or carry water. 6 346 Unlicensed bore drilling 7 A person must not construct a water bore of any kind otherwise 8 than in accordance with a bore driller's licence that is held by that 9 person and that authorises the person to construct water bores of 10 that kind. 11 Tier 2 penalty. 12 347 Ancillary offences 13 A person who: 14 (a) causes or permits the commission of an offence against 15 this Act or the regulations, or 16 (b) aids, abets, counsels or procures another person to commit 17 an offence against this Act or the regulations, or 18 (c) attempts to commit an offence against this Act or the 19 regulations, or 20 (d) conspires to commit an offence against this Act or the 21 regulations, 22 is guilty of that offence and liable to the penalty prescribed by 23 this Act or the regulations in relation to that offence. 24 [9] Sections 363A and 363B 25 Insert after section 363: 26 363A Offences by joint holders of access licence or approval 27 (1) If an offence against this Act or the regulations arises in relation 28 to an access licence or approval, each co-holder of the licence or 29 approval is taken to have committed the offence. 30 (2) A co-holder of a licence or approval is not guilty of such an 31 offence if the co-holder establishes that: 32 (a) the offence was committed by some other person (whether 33 or not another co-holder of the licence or approval), and 34 (b) the other person was not associated with the co-holder at 35 the time the offence was committed, and 36 Page 17

Water Management Amendment Bill 2008 Schedule 1 Amendments relating to offences and penalties (c) the co-holder took all reasonable steps to prevent the 1 offence from being committed. 2 (3) A person is associated with a co-holder of a licence or approval 3 for the purposes of subsection (2) (b) (but without limiting any 4 other circumstances of association) if the person is an employee, 5 agent, licensee, contractor or sub-contractor of the co-holder. 6 (4) A person may, under this section, be proceeded against and 7 convicted for an offence whether or not any other person has been 8 proceeded against or convicted for the offence. 9 363B Penalties 10 For the purposes of this Act: 11 (a) a Tier 1 penalty corresponds to a maximum penalty of: 12 (i) in the case of a corporation, 20,000 penalty units 13 and, in the case of a continuing offence, a further 14 penalty of 2,400 penalty units for each day the 15 offence continues, or 16 (ii) in any other case, imprisonment for 2 years or 17 10,000 penalty units, or both, and, in the case of a 18 continuing offence, a further penalty of 1,200 19 penalty units for each day the offence continues, and 20 (b) a Tier 2 penalty corresponds to a maximum penalty of: 21 (i) in the case of a corporation, 10,000 penalty units 22 and, in the case of a continuing offence, a further 23 penalty of 1,200 penalty units for each day the 24 offence continues, or 25 (ii) in any other case, 2,250 penalty units and, in the 26 case of a continuing offence, a further penalty of 27 600 penalty units for each day the offence continues, 28 and 29 (c) a Tier 3 penalty corresponds to a maximum penalty of 100 30 penalty units. 31 [10] Sections 364 and 364A 32 Omit section 364. Insert instead: 33 364 Proceedings for offences 34 (1) Proceedings for an offence against this Act or the regulations are 35 to be disposed of summarily: 36 (a) by a Local Court, or 37 Page 18

Water Management Amendment Bill 2008 Amendments relating to offences and penalties Schedule 1 (b) by the Land and Environment Court in its summary 1 jurisdiction. 2 (2) Proceedings for an offence against this Act or the regulations 3 may be commenced at any time within, but not later than, 3 years 4 after the date on which the offence is alleged to have been 5 committed. 6 (3) Proceedings for an offence against this Act or the regulations 7 may also be commenced at any time within, but not later than, 3 8 years after the date on which evidence of the alleged offence first 9 came to the attention of any relevant authorised officer. 10 (4) If subsection (3) is relied on for the purpose of commencing 11 proceedings for an offence, the process by which the proceedings 12 are commenced must contain particulars of the date on which 13 evidence of the offence first came to the attention of any relevant 14 authorised officer and need not contain particulars of the date on 15 which the offence was committed. 16 (5) The date on which evidence first came to the attention of any 17 relevant authorised officer is the date specified in the process by 18 which the proceedings are commenced, unless the contrary is 19 established. 20 (6) The maximum monetary penalty that may be imposed by a Local 21 Court in proceedings for an offence against this Act or the 22 regulations is: 23 (a) the lesser of the following: 24 (i) 100 penalty units (for an offence committed by a 25 corporation) or 50 penalty units (in any other case), 26 (ii) the maximum monetary penalty specified in respect 27 of the offence, and 28 (b) in the case of a continuing offence, 10 per cent of the 29 further monetary penalty specified in respect of the offence 30 for each day the offence continues. 31 (7) The maximum penalty that may be imposed by the Land and 32 Environment Court in proceedings for an offence against this Act 33 or the regulations is the maximum penalty specified in respect of 34 the offence. 35 (8) In this section, evidence of an offence means evidence of any act 36 or omission constituting the offence. 37 Page 19

Water Management Amendment Bill 2008 Schedule 1 Amendments relating to offences and penalties 364A Matters to be considered in imposing penalty 1 (1) In imposing a penalty on a person for an offence against this Act 2 or the regulations, the court is to take into consideration the 3 following (so far as they are relevant): 4 (a) the impact of the offence on other persons' rights under 5 this Act, 6 (b) the market value of any water that has been lost, misused 7 or unlawfully taken as a consequence of the commission of 8 the offence, 9 (c) the extent of the harm caused or likely to be caused to the 10 environment (including, in particular, any water source or 11 waterfront land) by the commission of the offence, 12 (d) the practical measures that may be taken to prevent, 13 control, abate or mitigate that harm, 14 (e) the extent to which the person could reasonably have 15 foreseen the harm caused or likely to be caused to the 16 environment by the commission of the offence, 17 (f) the extent to which the person had control over the causes 18 that gave rise to the offence, 19 (g) whether the offence was committed during a severe water 20 shortage (that is, in contravention of an order in force 21 under section 49A or 324), 22 (h) the person's intentions in committing the offence, 23 (i) whether, in committing the offence, the person was 24 complying with orders from an employer or supervising 25 employee, 26 (j) in the case of an offence of taking water in contravention 27 of this Act, whether the water so taken had been released 28 for environmental purposes and, if so, whether the person 29 was aware of that fact, 30 (k) any civil penalty that has been imposed on the person 31 under section 60G in relation to the conduct from which 32 the offence arises. 33 (2) The court may take into consideration other matters that it 34 considers relevant. 35 Page 20

Water Management Amendment Bill 2008 Amendments relating to offences and penalties Schedule 1 [11] Section 365A 1 Insert after section 365: 2 365A Continuing offences 3 (1) A person who is guilty of an offence because the person 4 contravenes a requirement made by or under this Act or the 5 regulations (whether the requirement is imposed by a notice or 6 otherwise) to do or stop doing something (whether or not within 7 a specified period or before a particular time): 8 (a) continues, until the requirement is complied with and 9 despite the fact that any specified period has expired or 10 time has passed, to be liable to comply with the 11 requirement, and 12 (b) is guilty of a continuing offence for each day the 13 contravention continues. 14 (2) This section does not apply to the extent that a requirement of a 15 notice is revoked. 16 [12] Section 368 Appeals to Land and Environment Court 17 Omit "85B" from section 368 (1) (ma). Insert instead "60G". 18 [13] Dictionary 19 Insert in alphabetical order: 20 Tier 1, 2 or 3 offence means an offence that is punishable by a 21 Tier 1, 2 or 3 penalty, as the case may be. 22 Tier 1, 2 or 3 penalty--see section 363B. 23 Page 21

Water Management Amendment Bill 2008 Schedule 2 Amendments relating to directions and other enforcement measures Schedule 2 Amendments relating to directions and 1 other enforcement measures 2 (Section 3) 3 [1] Section 301A 4 Insert after section 301: 5 301A Power to give directions 6 (1) Without limiting Part 1 of Chapter 7, the Minister's power to give 7 directions under that Part may be exercised in relation to a water 8 supply authority's sewage work as if it were a water management 9 work within the meaning of that Part. 10 (2) An appeal lies to the Land and Environment Court against the 11 Minister's decision to give such a direction in the same way as it 12 lies against the Minister's decision to give a direction under 13 Part 1 of Chapter 7. 14 [2] Chapter 7, Parts 1 and 2 15 Omit the Parts. Insert instead: 16 Part 1 Directions to landholder and other persons 17 Division 1 Preliminary 18 323 Definitions 19 (1) In this Part: 20 landholder, in relation to land, includes any person having the 21 care, control or management of the land. 22 specified measures include measures that involve doing, or 23 refraining from doing, any act. 24 (2) In this Part: 25 (a) a power to direct a person to take specified measures 26 includes a power to direct in what circumstances, in what 27 order and in what manner those measures are to be taken, 28 and 29 (b) a reference to a water management work of any kind 30 includes a reference to a corresponding kind of work to 31 which Part 2, 5 or 8 of the Water Act 1912 extends, and 32 (c) a reference to this Act or the regulations extends to the 33 Water Act 1912 and the regulations under that Act. 34 Page 22

Water Management Amendment Bill 2008 Amendments relating to directions and other enforcement measures Schedule 2 (3) For the purpose of applying this Part to the Water Act 1912 and 1 the regulations under that Act, references to this Act in section 2 390 of this Act, and in the definition of authorised officer in the 3 Dictionary to this Act, extend to the Water Act 1912 and the 4 regulations under that Act. 5 Division 2 Conservation of water 6 324 Temporary water restrictions 7 (1) If satisfied that it is necessary to do so in the public interest (such 8 as to cope with a water shortage or threat to public health or 9 safety), the Minister may, by order in writing, direct that, for a 10 specified period, the taking of water from a specified water 11 source is prohibited, or is subject to specified restrictions, as the 12 case requires. 13 (2) If satisfied that it is necessary to do so: 14 (a) to maintain or protect water levels in an aquifer, or 15 (b) to maintain, protect or improve the quality of water in an 16 aquifer, or 17 (c) to prevent land subsidence or compaction in an aquifer, or 18 (d) to protect groundwater-dependent ecosystems, or 19 (e) to maintain pressure, or to ensure pressure recovery, in an 20 aquifer, 21 the Minister may, by order in writing, direct that, within a 22 specified area and for a specified period, the taking of water from 23 that aquifer, or from any other aquifer that is above, below or 24 adjacent to that aquifer, is prohibited, or is subject to specified 25 restrictions, as the case requires. 26 (3) The Minister must cause a copy of an order under this section to 27 be published in the Gazette and notice of the order to be published 28 in an appropriate newspaper. 29 (4) If satisfied that circumstances require publication of an order 30 under subsection (1) or (2) sooner than can be achieved under 31 subsection (3), the Minister may, prior to its publication under 32 that subsection, cause notice of the order to be broadcast by a 33 television or radio station transmitting to the part or parts of the 34 State within which the water source is situated. 35 (5) An order under this section takes effect when it is first published 36 or broadcast in accordance with subsection (3) or (4), as the case 37 may be, or at such later date or time as may be specified in the 38 order. 39 Page 23

Water Management Amendment Bill 2008 Schedule 2 Amendments relating to directions and other enforcement measures (6) Unless sooner repealed, an order under this section ceases to have 1 effect on the expiry of the period specified in the order. 2 (7) In the event of any inconsistency between an order under this 3 section and any other provision of this Act relating to the 4 distribution, sharing or taking of water (including any order 5 made, or any condition imposed on an access licence or approval, 6 under this Act), the order under this section prevails to the extent 7 of the inconsistency. 8 (8) Nothing in this section gives rise to a claim for compensation 9 under Division 9 of Part 2 of Chapter 3. 10 325 Directions concerning waste of water 11 The Minister may, by order in writing served on a landholder, 12 direct the landholder to take specified measures to ensure that: 13 (a) water taken and used under the authority of: 14 (i) a domestic and stock right, or 15 (ii) a domestic and stock access licence, 16 is taken and used in accordance with the mandatory 17 guidelines established under section 336B, and 18 (b) water taken and used under the authority of: 19 (i) a domestic and stock right, or 20 (ii) a domestic and stock access licence, 21 is beneficially used, and is not wasted or improperly used, 22 and 23 (c) water taken by means of a water supply work situated on 24 the land, or used under the authority of a water use 25 approval applying to the land, is beneficially used, and is 26 not wasted or improperly used. 27 326 Directions to install and maintain metering equipment 28 (1) The Minister may, by order in writing served on: 29 (a) a landholder on whose land is situated a water supply 30 work, or 31 (b) any person having the control and management of such a 32 work, 33 direct the landholder or person to install metering equipment for 34 use in connection with that work. 35 (2) A direction to install metering equipment is taken to include: 36 (a) a direction that the equipment be properly maintained, and 37 Page 24

Water Management Amendment Bill 2008 Amendments relating to directions and other enforcement measures Schedule 2 (b) a direction that the equipment not be used unless it is 1 properly sealed. 2 (3) Metering equipment is properly maintained and properly sealed 3 only if it is maintained and sealed by a duly qualified person. 4 (4) In this section, duly qualified person means a person who has 5 such qualifications as are prescribed by the regulations. 6 Division 3 Unlawful works and activities 7 327 Stop work order regarding unlawful construction or use of water 8 management work 9 (1) This section applies to a water management work that, in the 10 Minister's opinion, is being constructed or used, or is about to be 11 constructed or used, in contravention of this Act. 12 (2) The Minister may, by order in writing served on any person 13 having control or management of the water management work, 14 direct the person: 15 (a) to prohibit or discontinue its construction or use, or 16 (b) to construct or use the work only as specified. 17 (3) Without limiting subsection (2), the landholder on whose land the 18 water management work is situated is taken to have control and 19 management of the work. 20 328 Stop work order regarding unlawful controlled activity or aquifer 21 interference activity 22 (1) This section applies to a controlled activity or aquifer 23 interference activity that, in the Minister's opinion, is being 24 carried out, or is about to be carried out, in contravention of this 25 Act. 26 (2) The Minister may, by order in writing served on any person 27 carrying out the controlled activity or aquifer interference 28 activity, direct the person: 29 (a) to prohibit or discontinue that activity, or 30 (b) to carry out that activity only as specified. 31 (3) Without limiting subsection (2), the landholder on whose land a 32 controlled activity or aquifer interference activity is being carried 33 out is taken to be carrying out that activity. 34 Page 25

Water Management Amendment Bill 2008 Schedule 2 Amendments relating to directions and other enforcement measures 329 Removal of unlawful water management works 1 (1) This section applies to a water management work for which no 2 water management approval is in force. 3 (2) The Minister may, by order in writing served on any person 4 having control or management of the work, direct the person to 5 demolish, remove or dismantle the work or otherwise render it 6 ineffective. 7 (3) Such a direction may be given even if the work is not being used 8 or is not capable of being used. 9 (4) Such a direction may not be given in relation to a water supply 10 work that is being used solely: 11 (a) to take water from a water source to which this Part applies 12 pursuant to a landholder's domestic and stock rights, or 13 (b) to capture and store rainwater run-off pursuant to a 14 landholder's harvestable rights. 15 (5) Without limiting subsection (2), the landholder on whose land the 16 work is situated is taken to have control and management of the 17 work. 18 Division 4 Temporary stop work orders 19 330 Temporary stop work order to protect public interest 20 (1) If satisfied that the public interest so requires, the Minister may, 21 by order in writing served on: 22 (a) a landholder on whose land is situated a water 23 management work, or 24 (b) any person having the control or management of such a 25 work, or 26 (c) any person by whom a controlled activity or aquifer 27 interference activity is being carried out, 28 direct that, for a specified period, the use of that work, or the 29 carrying out of that activity, is prohibited, or is subject to 30 specified restrictions, as the case requires. 31 (2) Such a direction may be given in relation to a flood work only so 32 as to regulate the use of those parts of the work (including, 33 without limitation, sluices and flood gates) as are capable of 34 being operated to influence the flow of water. 35 Page 26

Water Management Amendment Bill 2008 Amendments relating to directions and other enforcement measures Schedule 2 Division 5 Protection of public health, public safety and 1 the environment 2 331 Directions to holders of basic landholder rights 3 The Minister may, by order in writing served on: 4 (a) a landholder on whose land is situated a water supply work 5 that is being used: 6 (i) to take water from a water source to which this Part 7 applies pursuant to the landholder's domestic and 8 stock rights, or 9 (ii) to capture and store rainwater run-off pursuant to 10 the landholder's harvestable rights, or 11 (b) any person having the control or management of such a 12 work, 13 direct the landholder or person to take specified measures to 14 protect the environment, to preserve basic landholder rights or to 15 overcome a threat to public health. 16 332 Directions concerning damage caused by straying stock 17 The Minister may, by order in writing served on any landholder, 18 direct the landholder to take specified measures: 19 (a) to prevent stock from straying from the landholder's land 20 into or onto a water management work that is owned by, or 21 is under the control or management of, the Ministerial 22 Corporation, or 23 (b) to repair any damage caused to any such water 24 management work as a consequence of stock having 25 strayed from the landholder's land. 26 333 Directions to protect water sources 27 (1) This section applies if the Minister is of the opinion that: 28 (a) the construction or use of a water management work, or 29 (b) the carrying out of a controlled activity or aquifer 30 interference activity, 31 is having, has had, or is likely to have, an adverse effect on a 32 water source or waterfront land. 33 (2) The Minister may, by order in writing served on: 34 (a) the person having control or management of the water 35 management work, or 36 Page 27

Water Management Amendment Bill 2008 Schedule 2 Amendments relating to directions and other enforcement measures (b) the person carrying out the controlled activity or aquifer 1 interference activity, 2 direct the person to take specified measures to prevent, minimise 3 or mitigate any adverse effect on the water source or waterfront 4 land as a consequence of the construction or use of the work or 5 the carrying out of the activity. 6 (3) Without limiting subsection (2), the measures that may be 7 specified in a direction under this section include: 8 (a) a direction to repair any damage caused by the 9 construction or use of the water management work or the 10 carrying out of the controlled activity or aquifer 11 interference activity, and 12 (b) a direction to rehabilitate any water source or waterfront 13 land that has been adversely affected by the construction or 14 use of the water management work or the carrying out of 15 the controlled activity or aquifer interference activity, and 16 (c) a direction to ensure that the construction or use of the 17 water management work, or the carrying out of the 18 controlled activity or aquifer interference activity, will not 19 in future adversely affect any water source or waterfront 20 land. 21 (4) Without limiting subsection (2): 22 (a) the landholder on whose land a water management work is 23 situated is taken to have control and management of the 24 work, and 25 (b) the landholder on whose land a controlled activity or 26 aquifer interference activity is carried out is taken to be 27 carrying out the activity. 28 334 Directions to prepare reports 29 (1) A direction served on a person under this Division may require 30 the person to prepare, and submit to the Minister, reports as to 31 any of the following: 32 (a) the measures the person proposes to take for the purpose of 33 complying with the direction, 34 (b) the progress made by the person in implementing any such 35 measures. 36 (2) The direction may also prohibit the person from implementing 37 any such measures until they have been approved by the Minister. 38 Page 28

Water Management Amendment Bill 2008 Amendments relating to directions and other enforcement measures Schedule 2 Division 6 Enforcement by Land and Environment Court 1 335 Land and Environment Court may grant injunctions 2 On the application of the Minister, the Land and Environment 3 Court may grant an injunction directing any person to whom a 4 direction has been given under this Part to comply with the 5 direction. 6 336 Restraint of breaches of this Act 7 (1) Any person may bring proceedings in the Land and Environment 8 Court for an order to remedy or restrain a breach of this Act or the 9 regulations. 10 (2) Any such proceedings may be brought whether or not 11 proceedings have been instituted for an offence against this Act 12 or the regulations. 13 (3) Any such proceedings may be brought whether or not any right 14 of the person has been or may be infringed by or as a consequence 15 of the breach. 16 (4) Any such proceedings may be brought by a person on the 17 person's own behalf or on behalf of another person (with their 18 consent), or of a body corporate or unincorporate (with the 19 consent of its committee or other controlling body), having like 20 or common interests in those proceedings. 21 (5) Any person on whose behalf proceedings are brought is entitled 22 to contribute to or provide for the payment of the legal costs and 23 expenses incurred by the person bringing the proceedings. 24 (6) If the Land and Environment Court is satisfied that a breach has 25 been committed or that a breach will, unless restrained by the 26 order of the Court, be committed, it may make such orders as it 27 thinks fit to remedy or restrain the breach. 28 (7) In this section, breach includes a threatened or apprehended 29 breach. 30 Division 7 General 31 336A Remedial measures may be taken by Minister 32 (1) If a person fails to take the measures specified in a direction under 33 this Part, the Minister may authorise any other person to take 34 those measures. 35 (2) The amount of any costs and expenses incurred by the authorised 36 person as a result of the taking of those measures is recoverable 37 Page 29

Water Management Amendment Bill 2008 Schedule 2 Amendments relating to directions and other enforcement measures in a court of competent jurisdiction as a debt due to the 1 Ministerial Corporation from the person on whom the direction 2 was served. 3 336B Mandatory guidelines 4 (1) The Minister may, by order published in the Gazette, establish 5 mandatory guidelines with respect to the taking and use of water 6 for domestic consumption and stock watering by landholders 7 authorised to take and use water for either or both of those 8 purposes under: 9 (a) a domestic and stock right, or 10 (b) a domestic and stock access licence. 11 (2) Before establishing any guidelines under this section, the 12 Minister must prepare draft guidelines. 13 (3) The Minister: 14 (a) must give public notice of the draft guidelines, and 15 (b) must exhibit the draft guidelines (together with such other 16 information as is appropriate or necessary to enable the 17 draft guidelines and their implications to be understood) at 18 the places, on the dates and during the times set out in the 19 notice. 20 (4) The public notice referred to in subsection (3) (a): 21 (a) must specify the places at which, the dates on which, and 22 the times during which, the draft guidelines may be 23 inspected by the public, and 24 (b) must specify a period of at least 40 days during which 25 submissions may be made to the Minister in relation to the 26 guidelines (the submission period), and 27 (c) must be published in an appropriate newspaper. 28 (5) During the submission period, any person may make written 29 submissions to the Minister on the draft guidelines. 30 (6) After complying with the requirements of this section, the 31 Minister: 32 (a) may establish guidelines under this section in accordance 33 with the draft guidelines, or 34 (b) may establish guidelines under this section in accordance 35 with the draft guidelines, but with such alterations as the 36 Minister thinks fit, or 37 (c) may decide not to proceed with the draft guidelines. 38 Page 30

Water Management Amendment Bill 2008 Amendments relating to directions and other enforcement measures Schedule 2 (7) The Minister is to cause: 1 (a) a copy of any guidelines established under this section as 2 in force from time to time to be published on the 3 Department's internet site, and 4 (b) copies of the guidelines as in force from time to time to be 5 made available for inspection by members of the public 6 during ordinary business hours at such places as the 7 Minister directs. 8 (8) A failure to comply with subsection (7) does not affect the 9 validity of any guidelines established under this section. 10 (9) In this section: 11 domestic consumption, in relation to land, includes (but is not 12 limited to) domestic consumption within the meaning of 13 section 52. 14 stock watering, in relation to land, includes (but is not limited to) 15 stock watering within the meaning of section 52. 16 336C Contravention of certain directions 17 (1) A person who fails to comply with a direction under this Part is 18 guilty of an offence. 19 Tier 2 penalty. 20 (2) For the avoidance of doubt, a person fails to comply with a 21 direction under this Part if the direction requires compliance 22 within a specified period and the direction is not fully complied 23 with within that period. 24 336D Prior notice of direction not required 25 The Minister is not required to notify any person who may be 26 affected by a direction under this Part before giving the direction. 27 Part 2 Other enforcement powers 28 Division 1 Preliminary 29 337 Purposes for which powers under Part may be exercised 30 (1) Powers may be exercised under this Part for any of the following 31 purposes: 32 (a) for determining whether there has been compliance with or 33 a contravention of this Act or the regulations or any access 34 licence, approval, notice or requirement issued or made 35 under this Act, 36 Page 31

Water Management Amendment Bill 2008 Schedule 2 Amendments relating to directions and other enforcement measures (b) for obtaining information or records for purposes 1 connected with the administration of this Act, 2 (c) generally for administering this Act and protecting the 3 environment. 4 (2) In this Part, a reference to this Act or the regulations extends to 5 the Water Act 1912 and the regulations under that Act. 6 (3) For the purpose of applying this Part to the Water Act 1912 and 7 the regulations under that Act, references to this Act in section 8 390 of this Act, and in the definition of authorised officer in the 9 Dictionary to this Act, extend to the Water Act 1912 and the 10 regulations under that Act. 11 337A Effect on other functions 12 Nothing in this Part affects any function under any other 13 provision of this Act or under any other Act. 14 337B Extended meaning of "occupier" 15 In this Part, occupier, in relation to land, includes any person 16 having the care, control or management of the land. 17 Division 2 Powers to require information or records 18 338 Application of Division 19 This Division applies whether or not a power of entry under 20 Division 3 is being or has been exercised. 21 338A Powers of authorised officers to require information and records 22 (1) The Minister may, by notice in writing given to a person, require 23 the person to furnish to the Minister such information or records 24 (or both) as he or she may require for the purposes of this Act. 25 (2) An authorised officer may, by notice in writing given to a person, 26 require the person to furnish to the officer such information or 27 records (or both) as he or she may require for the purposes of this 28 Act. 29 (3) A notice under this Division must specify the manner in which 30 information or records are required to be furnished and a 31 reasonable time by which the information or records are required 32 to be furnished. 33 (4) A notice under this Division may only require a person to furnish 34 existing records that are in the person's possession or that are 35 within the person's power to obtain lawfully. 36 Page 32

Water Management Amendment Bill 2008 Amendments relating to directions and other enforcement measures Schedule 2 (5) The person to whom any record is furnished under this Division 1 may take copies of it. 2 (6) If any record required to be furnished under this Division is in 3 electronic, mechanical or other form, the notice requires the 4 record to be furnished in written form, unless the notice otherwise 5 provides. 6 338B Power of authorised officers to require answers 7 (1) An authorised officer may require a person whom the authorised 8 officer suspects on reasonable grounds to have knowledge of 9 matters in respect of which information is reasonably required for 10 the purposes of this Act to answer questions in relation to those 11 matters. 12 (2) The Minister may, by notice in writing, require a corporation to 13 nominate, in writing within the time specified in the notice, a 14 director or officer of the corporation to be the corporation's 15 representative for the purpose of answering questions under this 16 section. 17 (3) Answers given by a person nominated under subsection (2) bind 18 the corporation. 19 (4) An authorised officer may, by notice in writing, require a person 20 to attend at a specified place and time to answer questions under 21 this section if attendance at that place is reasonably required in 22 order that the questions can be properly put and answered. 23 (5) The place and time at which a person may be required to attend 24 under subsection (4) is to be: 25 (a) a place or time nominated by the person, or 26 (b) if the place and time nominated is not reasonable in the 27 circumstances or a place and time is not nominated by the 28 person, a place and time nominated by the authorised 29 officer that is reasonable in the circumstances. 30 338C Recording of evidence 31 (1) An authorised officer may cause any questions and answers to 32 questions given under this Division to be recorded if the officer 33 has informed the person who is to be questioned that the record 34 is to be made. 35 (2) A record may be made using sound recording apparatus or audio 36 visual apparatus, or any other method determined by the 37 authorised officer. 38 Page 33

Water Management Amendment Bill 2008 Schedule 2 Amendments relating to directions and other enforcement measures (3) A copy of any such record must be provided by the authorised 1 officer to the person who is questioned as soon as practicable 2 after it is made. 3 (4) A record may be made under this section despite the provisions 4 of any other law. 5 338D Power of authorised officers to demand name and address 6 (1) An authorised officer may require a person whom the authorised 7 officer suspects on reasonable grounds to have committed, or to 8 be committing, an offence against this Act or the regulations to 9 state his or her full name and residential address. 10 (2) An authorised officer may request a person who is required under 11 this section to state his or her full name and residential address to 12 provide proof of the name and address. It is not an offence to fail 13 to comply with any such request. 14 (3) A person who, being required to do so under this section: 15 (a) refuses to state his or her name or residential address, or 16 (b) states a name or residential address that in the opinion of 17 the authorised officer is false, 18 may without any other warrant than this Act be apprehended by 19 the authorised officer and taken before a Magistrate or authorised 20 officer within the meaning of the Criminal Procedure Act 1986 21 to be dealt with according to law. 22 (4) A Magistrate or authorised officer before whom a person is taken 23 under subsection (3) may grant the person bail in accordance with 24 the Bail Act 1978 as if the person were accused of an offence. 25 Division 3 Powers of entry and search of premises 26 339 Powers of authorised officers to enter premises 27 (1) An authorised officer may enter any premises at any reasonable 28 time. 29 (2) A power to enter premises conferred by this Act authorises entry 30 by foot, by vehicle, vessel or aircraft or by any other means. 31 (3) Entry may be effected under this Act by an authorised officer 32 with the aid of such police officers as the authorised officer 33 considers necessary and with the use of reasonable force. 34 (4) Entry may be effected to any premises with the authority of a 35 search warrant under section 339C. 36 Page 34

Water Management Amendment Bill 2008 Amendments relating to directions and other enforcement measures Schedule 2 339A Entry into residential premises only with permission or warrant 1 This Division does not empower an authorised officer to enter 2 any part of premises used only for residential purposes without 3 the permission of the occupier or the authority of a search warrant 4 under section 339C. 5 339B Powers of authorised officers to do things at premises 6 (1) An authorised officer may, at any premises lawfully entered, do 7 anything that in the opinion of the authorised officer is necessary 8 to be done for the purposes of this Division, including (but not 9 limited to) the things specified in subsection (2). 10 (2) An authorised officer may do any or all of the following: 11 (a) examine and inspect any works, 12 (b) take and remove samples, 13 (c) make such examinations, inquiries and tests as the 14 authorised officer considers necessary, 15 (d) take such photographs, films, audio, video and other 16 recordings as the authorised officer considers necessary, 17 (e) require records to be produced for inspection, 18 (f) examine and inspect any records, 19 (g) copy any records, 20 (h) seize anything that the authorised officer has reasonable 21 grounds for believing is connected with an offence against 22 this Act or the regulations, 23 (i) for the purposes of paragraph (h), direct the occupier of the 24 premises where the thing is seized to retain it at those 25 premises or at another place under the control of the 26 occupier, 27 (j) do any other thing the authorised officer is empowered to 28 do under this Division. 29 (3) The power to seize anything connected with an offence includes 30 a power to seize: 31 (a) a thing with respect to which the offence has been 32 committed, and 33 (b) a thing that will afford evidence of the commission of the 34 offence, and 35 (c) a thing that was used for the purpose of committing the 36 offence. 37 Page 35

Water Management Amendment Bill 2008 Schedule 2 Amendments relating to directions and other enforcement measures (4) In this section, a reference to an offence includes a reference to 1 an offence that there are reasonable grounds for believing has 2 been committed. 3 339C Search warrants 4 (1) An authorised officer under this Act may apply to an authorised 5 officer within the meaning of the Law Enforcement (Powers and 6 Responsibilities) Act 2002 for the issue of a search warrant if the 7 authorised officer under this Act believes on reasonable grounds 8 that: 9 (a) a provision of this Act or the regulations is being or has 10 been contravened at any premises, or 11 (b) there is in or on any premises matter or a thing that is 12 connected with an offence under this Act or the 13 regulations. 14 (2) An authorised officer within the meaning of the Law 15 Enforcement (Powers and Responsibilities) Act 2002 to whom 16 such an application is made may, if satisfied that there are 17 reasonable grounds for doing so, issue a search warrant 18 authorising an authorised officer under this Act named in the 19 warrant: 20 (a) to enter the premises, and 21 (b) to exercise any function of an authorised officer under this 22 Division. 23 (3) Division 4 of Part 5 of the Law Enforcement (Powers and 24 Responsibilities) Act 2002 applies to a search warrant issued 25 under this section. 26 (4) In this section: 27 matter or a thing connected with an offence means: 28 (a) a matter or a thing with respect to which the offence has 29 been committed, or 30 (b) a matter or a thing that will afford evidence of the 31 commission of an offence, or 32 (c) a matter or a thing that was used, or is intended to be used, 33 for the purpose of committing the offence. 34 offence includes an offence that there are reasonable grounds for 35 believing has been, or is to be, committed. 36 Page 36

Water Management Amendment Bill 2008 Amendments relating to directions and other enforcement measures Schedule 2 339D Authorised officers may request assistance 1 A person may accompany an authorised officer and take all 2 reasonable steps to assist an authorised officer in the exercise of 3 the authorised officer's functions under this Division if the 4 authorised officer is of the opinion that the person is capable of 5 providing assistance to the authorised officer in the exercise of 6 those functions. 7 339E Assistance to be given to authorised officers 8 (1) This section applies for the purpose of enabling an authorised 9 officer to exercise any of the powers of an authorised officer 10 under this Division in connection with any premises. 11 (2) The Minister may, by notice in writing given to the owner or 12 occupier of the premises, require the owner or occupier to 13 provide such reasonable assistance and facilities as are specified 14 in the notice within a specified time and in a specified manner. 15 (3) Assistance and facilities can be required under this section, 16 whether they are of the same kind as, or a different kind from, any 17 prescribed by the regulations. 18 339F Care to be taken 19 In the exercise of a power of entering or searching premises under 20 this Division, the authorised officer must do as little damage as 21 possible. 22 339G Compensation 23 The Minister must compensate all interested parties for any 24 damage caused by the authorised officer in exercising a power of 25 entering premises (but not any damage caused by the exercise of 26 any other power), unless the occupier obstructed or hindered the 27 authorised officer in the exercise of the power of entry. 28 Division 4 General 29 340 Identification 30 (1) Every authorised officer is to be provided with evidence of his or 31 her authority as an authorised officer. 32 (2) In the course of exercising the functions of an authorised officer, 33 the officer must, if requested to do so by any person affected by 34 the exercise of any such function, produce to the person the 35 officer's evidence of authority. 36 Page 37

Water Management Amendment Bill 2008 Schedule 2 Amendments relating to directions and other enforcement measures 340A Offences 1 (1) A person must not, without lawful excuse, neglect or fail to 2 comply with a requirement made of the person under this Part. 3 Tier 2 penalty. 4 (2) A person must not furnish any information or do any other thing 5 in purported compliance with a requirement made under this Part, 6 knowing that it is false or misleading in a material respect. 7 Tier 2 penalty. 8 (3) A person must not threaten, hinder, obstruct or delay an 9 authorised officer in the exercise of the authorised officer's 10 powers under this Part. 11 Tier 2 penalty. 12 (4) A person must not impersonate an authorised officer. 13 Tier 2 penalty. 14 340B Provisions relating to requirements to furnish records, 15 information or answer questions 16 (1) A person is not guilty of an offence of failing to comply with a 17 requirement under this Part to furnish records or information or 18 to answer a question unless the person was warned on that 19 occasion that a failure to comply is an offence. 20 (2) A person is not excused from a requirement under this Part to 21 furnish records or information or to answer a question on the 22 ground that the record, information or answer might incriminate 23 the person or make the person liable to a penalty. 24 (3) However, any information furnished or answer given by a natural 25 person in compliance with a requirement under this Part is not 26 admissible in evidence against the person in criminal proceedings 27 (except proceedings for an offence under this Part) if: 28 (a) the person objected at the time to doing so on the ground 29 that it might incriminate the person, or 30 (b) the person was not warned on that occasion that the person 31 may object to furnishing the information or giving the 32 answer on the ground that it might incriminate the person. 33 (4) Any record furnished by a person in compliance with a 34 requirement under this Part is not inadmissible in evidence 35 against the person in criminal proceedings on the ground that the 36 record might incriminate the person. 37 Page 38

Water Management Amendment Bill 2008 Amendments relating to directions and other enforcement measures Schedule 2 (5) Further information obtained as a result of a record or 1 information furnished or of an answer given in compliance with 2 a requirement under this Part is not inadmissible on the ground: 3 (a) that the record or information had to be furnished or the 4 answer had to be given, or 5 (b) that the record or information furnished or answer given 6 might incriminate the person. 7 (6) This section extends to a requirement under this Part to state a 8 person's name and address. 9 340C Revocation or variation 10 (1) A notice given under this Part may be revoked or varied by a 11 subsequent notice or notices. 12 (2) A notice may be varied by modification of, or addition to, its 13 terms and specifications. 14 (3) Without limiting the above, a notice may be varied by extending 15 the time for complying with the notice. 16 (4) A notice may only be revoked or varied by the Minister or by the 17 person who gave it. 18 Page 39

Water Management Amendment Bill 2008 Schedule 3 Amendments relating to court orders and court proceedings Schedule 3 Amendments relating to court orders 1 and court proceedings 2 (Section 3) 3 [1] Chapter 7, Part 3A 4 Insert before Part 4 of Chapter 7: 5 Part 3A Court orders in connection with offences 6 353 Operation of Part 7 (1) This Part applies where a court finds a person guilty of an offence 8 against this Act. 9 (2) In this Part: 10 harm to the environment includes harm to any water source or to 11 any waterfront land. 12 the court means the court that finds the offence proved. 13 the offender means the person who is found to have committed 14 the offence. 15 353A Orders generally 16 (1) One or more orders may be made under this Part against the 17 offender. 18 (2) Orders may be made under this Part in addition to any penalty 19 that may be imposed or any other action that may be taken in 20 relation to the offence. 21 353B Orders for restoration and prevention 22 The court may order the offender to take such steps as are 23 specified in the order, within such time as is so specified (or such 24 further time as the court on application may allow): 25 (a) to prevent, control, abate or mitigate any harm to the 26 environment caused by the commission of the offence, or 27 (b) to make good any resulting environmental damage, or 28 (c) to prevent the continuance or recurrence of the offence. 29 353C Orders for costs, expenses and compensation at time offence 30 proved 31 (1) The court may, if it appears to the court that: 32 Page 40

Water Management Amendment Bill 2008 Amendments relating to court orders and court proceedings Schedule 3 (a) a public authority has incurred costs and expenses in 1 connection with: 2 (i) the prevention, control, abatement or mitigation of 3 any harm to the environment caused by the 4 commission of the offence, or 5 (ii) making good any resulting environmental damage, 6 or 7 (b) a person (including a public authority) has, by reason of 8 the commission of the offence, suffered loss of or damage 9 to property or has incurred costs and expenses in 10 preventing or mitigating, or in attempting to prevent or 11 mitigate, any such loss or damage, 12 order the offender to pay to the public authority or person the 13 costs and expenses so incurred, or compensation for the loss or 14 damage so suffered, as the case may be, in such amount as is 15 fixed by the order. 16 (2) A Local Court may not make an order under subsection (1) for the 17 payment of an amount that exceeds the jurisdictional limit of a 18 Local Court under the Civil Procedure Act 2005. 19 353D Recovery of costs, expenses and compensation after offence 20 proved 21 (1) If, after the court finds the offence proved: 22 (a) a public authority has incurred costs and expenses in 23 connection with: 24 (i) the prevention, control, abatement or mitigation of 25 any harm to the environment caused by the 26 commission of the offence, or 27 (ii) making good any resulting environmental damage, 28 or 29 (b) a person (including a public authority) has, by reason of 30 the commission of the offence, suffered loss of or damage 31 to property or has incurred costs and expenses in 32 preventing or mitigating, or in attempting to prevent or 33 mitigate, any such loss or damage, 34 the public authority or person may recover from the offender the 35 costs and expenses incurred or the amount of the loss or damage 36 in the Land and Environment Court. 37 (2) The amount of any such costs and expenses (but not the amount 38 of any such loss or damage) may be recovered as a debt. 39 Page 41

Water Management Amendment Bill 2008 Schedule 3 Amendments relating to court orders and court proceedings 353E Orders regarding costs and expenses of investigation 1 (1) The court may, if it appears to the court that the Minister has 2 reasonably incurred costs and expenses during the investigation 3 of the offence, order the offender to pay to the Minister the costs 4 and expenses so incurred in such amount as is fixed by the order. 5 (2) In this section: 6 costs and expenses, in relation to the investigation of an offence, 7 means the costs and expenses: 8 (a) in taking any sample or conducting any inspection, test, 9 measurement or analysis, or 10 (b) of transporting, storing or disposing of evidence, 11 during the investigation of the offence. 12 353F Orders regarding monetary benefits 13 (1) The Land and Environment Court may order the offender to pay, 14 as part of the penalty for committing the offence, an additional 15 penalty of an amount the court is satisfied, on the balance of 16 probabilities, represents the amount of any monetary benefits 17 acquired by the offender, or accrued or accruing to the offender, 18 as a result of the commission of the offence. 19 (2) The amount of an additional penalty for an offence is not subject 20 to any maximum amount of penalty provided elsewhere by or 21 under this Act. 22 (3) In this section: 23 monetary benefits means monetary, financial or economic 24 benefits. 25 the court does not include a Local Court. 26 353G Additional orders 27 (1) The court may do any one or more of the following: 28 (a) it may order the offender to take specified action to 29 publicise the offence (including the circumstances of the 30 offence) and its environmental and other consequences 31 and any other orders made against the offender, 32 (b) it may order the offender to carry out, or contribute a 33 specified amount to the cost of carrying out, a specified 34 project for the restoration or enhancement of the 35 environment in a public place or for the public benefit, 36 Page 42

Water Management Amendment Bill 2008 Amendments relating to court orders and court proceedings Schedule 3 (c) it may order the offender to attend, or cause an employee 1 or employees or a contractor or contractors of the offender 2 to attend, a training or other course specified by the court. 3 (2) A Local Court is not authorised to make an order referred to in 4 subsection (1) (b) or (c). 5 (3) The court may, in an order under this section, fix a period for 6 compliance and impose any other requirements the court 7 considers necessary or expedient for enforcement of the order. 8 (4) If the offender fails to comply with an order under subsection 9 (1) (a), the prosecutor or a person authorised by the prosecutor 10 may take action to carry out the order. 11 (5) The reasonable cost of taking action referred to in subsection (4) 12 is recoverable by the prosecutor or person taking the action, in a 13 court of competent jurisdiction, as a debt from the offender. 14 353H Offence 15 A person who fails to comply with an order under this Part 16 (except an order under section 353C, 353D or 353E) is guilty of 17 an offence. 18 Tier 2 penalty. 19 [2] Sections 367, 367A and 367B 20 Omit section 367. Insert instead: 21 367 Evidentiary certificates 22 (1) A certificate that is issued by the Minister and that states: 23 (a) that an instrument, a copy of which is set out in or annexed 24 to the certificate, being an instrument purporting: 25 (i) to be issued, made or given for the purposes of this 26 Act, and 27 (ii) to have been signed by the person authorised to 28 issue, make or give the instrument, or by another 29 person acting as delegate or on behalf of the person, 30 was issued, made or given on a specified day, or 31 (b) that a document, a copy of which is set out in or annexed 32 to the certificate, is a copy of part of, or an extract from, a 33 register or water allocation account kept under this Act, or 34 Page 43

Water Management Amendment Bill 2008 Schedule 3 Amendments relating to court orders and court proceedings (c) that an image, a copy of which is set out in or annexed to 1 the certificate: 2 (i) is a photograph or other remotely-sensed image of a 3 specified kind, and 4 (ii) portrays specified land as at a specified date, or 5 (d) that an amount payable under this Act by a specified 6 person has, or has not, been paid, 7 is admissible in any legal proceedings and is evidence of the fact 8 or facts so stated. 9 (2) A certificate that is issued by the Minister and that states that, on 10 a date or during a period specified in the certificate: 11 (a) a specified person was, or was not, the holder of a specified 12 access licence or approval, or 13 (b) a specified access licence or approval was, at a specified 14 time, revoked or suspended for a specified period or was 15 revoked or suspended subject to specified conditions, or 16 (c) a specified condition of an access licence or approval was, 17 at a specified time, imposed or revoked, or 18 (d) specified land was, or was not, the subject of a specified 19 approval, or 20 (e) specified land was, or was not, within a specified water 21 management area, or 22 (f) a specified part of a water source was, or was not, within a 23 specified water management area, or 24 (g) a specified water management work was, or was not, at a 25 specified location within a specified parcel of land, or 26 (h) a specified water management work was, or was not, the 27 subject of a specified water management work approval, or 28 (i) the conditions of a specified access licence or approval 29 were, or were not, as so specified, or 30 (j) the terms of a specified available water determination 31 were, or were not, as so specified, or 32 (k) a specified person was, or was not, an authorised officer in 33 relation to a specified provision of this Act, or 34 (l) a specified person was, or was not, an authorised analyst, 35 or 36 (m) a specified person was, or was not, a member of staff of the 37 Department, or 38 Page 44

Water Management Amendment Bill 2008 Amendments relating to court orders and court proceedings Schedule 3 (n) a specified delegation under this Act was, or was not, in 1 force, or 2 (o) a specified access licence or approval was, or was not, in 3 force, or 4 (p) specified matters were, or were not, recorded in the Access 5 Register or were, or were not, recorded in specified terms, 6 or 7 (q) the water allocations credited to a specified access licence 8 were, or were not, as so specified, or 9 (r) a specified number of water allocations were, or were not, 10 credited to, or debited or otherwise withdrawn from, a 11 specified access licence, or 12 (s) a specified quantity of water was, or was not, ordered in 13 relation to a specified access licence, or 14 (t) information required to be furnished to the Minister or an 15 authorised officer pursuant to this Act was, or was not, 16 received, or 17 (u) an approved river gauge had, or had not, been maintained 18 in accordance with the requirements (if any) prescribed by 19 the regulations, or 20 (v) the readings on an approved river gauge were, or were not, 21 as so specified, 22 is admissible in any legal proceedings and is evidence of the fact 23 or facts so stated. 24 (3) In any legal proceedings, evidence is not required: 25 (a) as to the accuracy or reliability of an approved river gauge, 26 or 27 (b) as to the manner in which an approved river gauge was 28 operated, 29 unless evidence is adduced that the gauge was not accurate, was 30 not reliable or was not properly operated. 31 (4) For the purposes of this section, a document purporting to be a 32 certificate under this section is, unless the contrary is proved, to 33 be taken to be such a certificate. 34 (5) In this section, approved river gauge means a gauge of a type or 35 design approved by the Minister, by order published in the 36 Gazette, for the purpose of measuring the level or flow of water 37 in a river or lake. 38 Page 45

Water Management Amendment Bill 2008 Schedule 3 Amendments relating to court orders and court proceedings 367A Evidence of analysts 1 (1) A certificate of an authorised analyst stating the result of an 2 analysis or examination is admissible in evidence in any legal 3 proceedings as evidence of the facts stated in the certificate and 4 the correctness of the result of the analysis or examination. 5 (2) A certificate of an authorised analyst that, on receipt of a 6 container containing a sample submitted to the analyst by an 7 authorised officer or any other person, the container was sealed 8 and the seal securing the container was unbroken is admissible in 9 evidence in any legal proceedings as evidence: 10 (a) of the facts stated in the certificate, and 11 (b) that the sample was the same sample as the one obtained 12 by the authorised officer or other person, and 13 (c) that the sample had not been tampered with before it was 14 received by the analyst. 15 (3) For the purposes of this section, a document purporting to be a 16 certificate under this section is, unless the contrary is proved, to 17 be taken to be such a certificate. 18 367B Rebuttable presumptions 19 (1) In any proceedings for an offence against this Act or the 20 regulations being taken against a landholder: 21 (a) the fact that a water management work is or has been 22 located: 23 (i) on the landholder's land, or 24 (ii) in a river or lake within the landholder's land, 25 gives rise to a rebuttable presumption that the work was 26 constructed by the landholder, and 27 (b) the fact that a water management work is being or has been 28 used: 29 (i) on the landholder's land, or 30 (ii) in a river or lake within the landholder's land, 31 gives rise to a rebuttable presumption that the work is 32 being or has been used by the landholder, and 33 (c) the fact that water is being or has been taken from a water 34 source by means of a water supply work situated: 35 (i) on the landholder's land, or 36 Page 46

Water Management Amendment Bill 2008 Amendments relating to court orders and court proceedings Schedule 3 (ii) in a river or lake within the landholder's land, 1 gives rise to a rebuttable presumption that the water is 2 being or has been taken by the landholder, and 3 (d) the fact that water is being or has been discharged into a 4 water source by means of a drainage work situated on the 5 landholder's land gives rise to a rebuttable presumption 6 that the water is being or has been discharged by the 7 landholder, and 8 (e) the fact that water is being or has been used on the 9 landholder's land gives rise to a rebuttable presumption 10 that the water is being or has been used by the landholder, 11 and 12 (f) the fact that a controlled activity is being or has been 13 carried out on waterfront land within the landholder's land 14 gives rise to a rebuttable presumption that the activity is 15 being or has been carried out by the landholder, and 16 (g) the fact that an aquifer interference activity is being or has 17 been carried out on the landholder's land gives rise to a 18 rebuttable presumption that the activity is being or has 19 been carried out by the landholder. 20 (2) In any proceedings for an offence against this Act or the 21 regulations being taken against the holder of an approval for a 22 water supply work, the fact that water is being or has been taken 23 from a water source: 24 (a) by means of the work, or 25 (b) through metering equipment installed in connection with 26 the work, 27 gives rise to a rebuttable presumption that the holder of the 28 approval is or has been using the work to take water from that 29 water source. 30 (3) In any proceedings for an offence against this Act or the 31 regulations, the fact that a work of the kind referred to in: 32 (a) the definition of drainage work in the Dictionary, or 33 (b) paragraph (a), (b) or (c) of the definition of water supply 34 work in the Dictionary, 35 is capable of being used for the purpose referred to in that 36 provision gives rise to a rebuttable presumption that the work has 37 been constructed or used for that purpose. 38 (4) This section does not limit the operation of section 60E or 91L. 39 Page 47

Water Management Amendment Bill 2008 Schedule 3 Amendments relating to court orders and court proceedings [3] Section 390 Authorised officers and analysts 1 Insert at the end of the section: 2 (2) The Minister may appoint authorised analysts for the purposes of 3 this Act. 4 [4] Dictionary 5 Insert in alphabetical order: 6 authorised analyst means a person appointed by the Minister 7 under section 390 to exercise the functions conferred on an 8 authorised analyst by this Act. 9 Page 48

Water Management Amendment Bill 2008 Amendments relating to access licences Schedule 4 Schedule 4 Amendments relating to access licences 1 (Section 3) 2 [1] Section 52 Domestic and stock rights 3 Omit section 52 (2). Insert instead: 4 (2) Subsection (1) does not allow a landholder: 5 (a) to take or use water in contravention of any mandatory 6 guidelines established under section 336B, or 7 (b) to construct a dam or water bore without a water supply 8 work approval, or 9 (c) in the case of the owner or occupier of a landholding 10 arising from a subdivision effected on or after 1 July 2004, 11 to take or use water in contravention of any prohibition or 12 restriction imposed by or under the regulations (including 13 any prohibition or restriction that the Minister is authorised 14 by the regulations to impose). 15 [2] Section 59 Available water determinations 16 Omit section 59 (4). Insert instead: 17 (4) If the Minister consents to the amendment of an access licence to 18 enable water to be taken by a nominated water supply work 19 located in some other water management area or water source 20 than that to which the licence relates, the available water 21 determinations applicable to water taken by means of the work 22 are those made in relation to the relevant category or subcategory 23 of access licence in relation to that other water management area 24 or water source. 25 [3] Section 66 Conditions of access licence generally 26 Omit section 66 (1). Insert instead: 27 (1) An access licence is subject to such conditions as the Minister 28 may from time to time impose: 29 (a) which must include such conditions as are required to be 30 imposed on the licence by this Act or by any relevant 31 management plan (mandatory conditions), and 32 (b) which may include such other conditions, such as: 33 (i) conditions to give effect to any agreement between 34 an applicant and objector under section 62 (5), and 35 Page 49

Water Management Amendment Bill 2008 Schedule 4 Amendments relating to access licences (ii) conditions relating to the protection of the 1 environment, 2 as the Minister thinks fit (discretionary conditions). 3 (1A) Mandatory conditions do not have effect in relation to an access 4 licence unless they are included in the terms of the licence. 5 [4] Section 70 6 Insert after section 69: 7 70 Special provisions with respect to supplementary water 8 (1) The Minister may, by order published in accordance with the 9 regulations, authorise the taking of water pursuant to 10 supplementary water access licences within the whole or any part 11 of a specified water management area or specified water source. 12 (2) Such an order: 13 (a) must specify the period for which the order authorises 14 water to be taken, and 15 (b) may impose such restrictions as the Minister considers 16 appropriate on the taking of water. 17 (3) Such an order must be consistent with the provisions of any 18 management plan in force in relation to the water management 19 area or water source concerned. 20 [5] Section 71W 21 Omit the section. Insert instead: 22 71W Access licence may nominate water supply works 23 (1) On the application of the holder of an access licence for a water 24 management area or water source, the Minister may consent to 25 the amendment of the licence so as: 26 (a) to nominate a specified water supply work in that water 27 management area or water source as a work by means of 28 which water credited to the licence may be taken, or 29 (b) to nominate a specified water supply work in a NSW water 30 tagging zone as a work by means of which water credited 31 to the licence may be taken, or 32 (c) to nominate a specified extraction point in an interstate 33 water tagging zone as an extraction point from which 34 water credited to the licence may be taken, 35 or so as to withdraw such a nomination. 36 Page 50

Water Management Amendment Bill 2008 Amendments relating to access licences Schedule 4 (2) For the avoidance of doubt, a water supply work may be 1 nominated under subsection (1) even though no approval is 2 required to be held in relation to the work. 3 (3) The holder of an approval for a water supply work may notify the 4 Minister, in accordance with the regulations: 5 (a) that the work has been nominated (whether by reference to 6 the work itself or by reference to an extraction point at 7 which it is located) as a work from which water credited to 8 the interstate equivalent of an access licence may be taken, 9 or 10 (b) that such a nomination has been withdrawn. 11 (4) For the purposes of this section, an extraction point in an 12 interstate water tagging zone is to be specified in accordance with 13 the regulations. 14 (5) In this section, a reference to a water supply work includes a 15 reference to a group of such works. 16 [6] Section 71Z Access licence dealing principles 17 Omit section 71Z (2). Insert instead: 18 (2) The access licence dealing principles may include provisions 19 relating to any or all of the following: 20 (a) the establishment of interstate water tagging zones, 21 (b) the establishment of NSW water tagging zones, 22 (c) the criteria to be considered for the granting of an 23 application with respect to a nomination referred to in 24 section 71W (1) (b) or (c). 25 [7] Section 72A 26 Omit the section. Insert instead: 27 72A Special provisions relating to co-holdings in access licences 28 (1) Subject to sections 71M, 71N and 74, any dealing in relation to 29 an access licence held by co-holders, and any application for the 30 Minister's consent to such a dealing, requires the consent of all of 31 the co-holders (a co-holder's consent). 32 (2) A co-holder of an access licence may, in accordance with the 33 regulations: 34 (a) appoint another co-holder (the first co-holder's nominee), 35 to give, on his or her behalf, any co-holder's consent 36 Page 51

Water Management Amendment Bill 2008 Schedule 4 Amendments relating to access licences required by subsection (1) in relation to an application for 1 the Minister's consent to a dealing, and 2 (b) revoke any appointment that the co-holder has made under 3 paragraph (a). 4 (3) The same person may be nominee for more than one co-holder. 5 (4) Any co-holder's consent given by the co-holder's nominee in 6 relation to an application for the Minister's consent to a dealing 7 in an access licence is taken to have been given by the co-holder. 8 (5) The revocation of a nominee's appointment under subsection 9 (2) (b) does not affect any co-holder's consent given by the 10 nominee before the revocation took effect. 11 [8] Section 100 Conditions of approval generally 12 Omit section 100 (1). Insert instead: 13 (1) An approval is subject to such conditions as the Minister may 14 from time to time impose: 15 (a) which must include such conditions as are required to be 16 imposed on the approval by this Act or by any relevant 17 management plan (mandatory conditions), and 18 (b) which may include such other conditions, such as: 19 (i) conditions to give effect to any agreement between 20 an applicant and objector under section 93 (5), and 21 (ii) conditions relating to the protection of the 22 environment, 23 as the Minister thinks fit (discretionary conditions). 24 (1A) Mandatory conditions do not have effect in relation to an 25 approval unless they are included in the terms of the approval. 26 [9] Section 123 Terms and conditions of operating licence 27 Insert after section 123 (3): 28 (4) Despite subsection (3), the Minister may amend an irrigation 29 corporation's operating licence so as to give effect to matters 30 agreed to by or on behalf of the State pursuant to, or in connection 31 with, the National Water Initiative. 32 (5) In determining the terms of the amendment, the Minister must 33 have regard to any submissions made by the irrigation 34 corporation. 35 Page 52

Water Management Amendment Bill 2008 Amendments relating to access licences Schedule 4 (6) In this section, National Water Initiative means the 1 Intergovernmental Agreement on a National Water Initiative 2 between the Commonwealth of Australia and the Governments 3 of New South Wales, Victoria, Queensland, South Australia, 4 Western Australia, Tasmania, the Australian Capital Territory 5 and the Northern Territory (as amended from time to time). 6 [10] Section 391A Interstate arrangements in relation to access licences and 7 approvals 8 Omit "in cases referred to in section 71W (2) or 89 (2)" from section 391A (1). 9 Insert instead "pursuant to section 71W or 89". 10 [11] Dictionary 11 Insert in alphabetical order: 12 interstate water tagging zone means an interstate water tagging 13 zone established by the access licence dealing principles. 14 NSW water tagging zone means a NSW water tagging zone 15 established by the access licence dealing principles. 16 Page 53

Water Management Amendment Bill 2008 Schedule 5 Amendments relating to publication of proclamations, orders and notices Schedule 5 Amendments relating to publication of 1 proclamations, orders and notices 2 (Section 3) 3 [1] Section 38 Public exhibition of draft management plan 4 Omit section 38 (2) (c). Insert instead: 5 (c) must be published in an appropriate newspaper. 6 [2] Section 51 Implementation programs 7 Omit "a local" from section 51 (4) (a). Insert instead "an appropriate". 8 [3] Section 85A Authorisation to take water from uncontrolled flows 9 Omit section 85A (4). Insert instead: 10 (4) As soon as practicable after making such an order in respect of a 11 water source, the Minister must cause notice of the order to be 12 published in the Gazette and in an appropriate newspaper. 13 [4] Section 85A (5) 14 Omit "or a newspaper in accordance with subsection (4)". 15 [5] Section 110 Temporary embargo 16 Omit section 110 (3). Insert instead: 17 (3) As soon as practicable after an order under this section is 18 published in the Gazette, notice of the order must be published in 19 an appropriate newspaper. 20 [6] Section 110 (4) 21 Omit "on the date". Insert instead "at the beginning of the date". 22 [7] Section 111 Permanent embargo 23 Omit section 111 (3). Insert instead: 24 (3) As soon as practicable after a proclamation under this section is 25 published in the Gazette, notice of the proclamation must be 26 published in an appropriate newspaper. 27 [8] Section 111 (4) 28 Omit "on the date". Insert instead "at the beginning of the date". 29 Page 54

Water Management Amendment Bill 2008 Amendments relating to publication of proclamations, orders and notices Schedule 5 [9] Section 142 Petition 1 Omit "a local" from section 142 (3). Insert instead "an appropriate". 2 [10] Section 144 Addition of lands to private irrigation districts 3 Omit "a local" from section 144 (3). Insert instead "an appropriate". 4 [11] Section 156 Private irrigation board may apply to take over water supply 5 works 6 Omit "a local" from section 156 (3). Insert instead "an appropriate". 7 [12] Section 205 Amendment of boundaries 8 Omit "a local" from section 205 (3). Insert instead "an appropriate". 9 [13] Section 216 Dissolution 10 Omit "a local" from section 216 (2). Insert instead "an appropriate". 11 [14] Section 218 Accounts 12 Omit "a local" from section 218 (2). Insert instead "an appropriate". 13 [15] Section 282 Review of activities of major utilities 14 Omit section 282 (2) (b). Insert instead: 15 (b) in an appropriate newspaper, 16 [16] Sections 395 and 395A 17 Insert after section 394: 18 395 Newspaper publication of orders and notices etc 19 A requirement of this Act that a proclamation, order or notice be 20 published in an appropriate newspaper is taken to be a 21 requirement that it be published: 22 (a) in a newspaper circulating throughout the area it affects, or 23 (b) in as many newspapers circulating within the various parts 24 of that area as are necessary to ensure that it reaches all 25 parts of the area. 26 395A Continuing effect of directions and conditions 27 (1) A direction given, or a condition of a licence or approval 28 imposed, under this Act or the regulations that specifies a time by 29 which, or period within which, the direction or condition must be 30 Page 55

Water Management Amendment Bill 2008 Schedule 5 Amendments relating to publication of proclamations, orders and notices complied with continues to have effect until the direction or 1 condition is complied with even though the time has passed or the 2 period has expired. 3 (2) A direction that does not specify a time by which, or period 4 within which, the direction must be complied with continues to 5 have effect until the direction is complied with. 6 (3) This section does not apply to the extent that any requirement 7 under a direction or a condition of a licence or approval is 8 revoked. 9 (4) Nothing in this section affects the powers of the Minister with 10 respect to the enforcement of a direction or a condition of a 11 licence or approval. 12 [17] Schedule 10 Conversion of former entitlements to access licences and 13 approvals 14 Omit "a newspaper circulating generally in New South Wales" from clause 15 19 (5). 16 Insert instead "an appropriate newspaper". 17 [18] Dictionary 18 Insert in alphabetical order: 19 appropriate newspaper--see section 395. 20 [19] Dictionary, definition of "local newspaper" 21 Omit the definition. 22 Page 56

Water Management Amendment Bill 2008 Amendments relating to other matters Schedule 6 Schedule 6 Amendments relating to other matters 1 (Section 3) 2 [1] Sections 7 (2), 13 (1) (g), 41 (2), 43 (3), 45 (3), 50 (3) and 75 (2) 3 Insert "Climate Change and" before "the Environment" wherever occurring. 4 [2] Sections 8A (1), 77A (1) and 87AA (1) (g) 5 Insert "water" after "supplementary" wherever occurring. 6 [3] Section 49A 7 Insert after section 49: 8 49A Suspension of management plans during severe water shortages 9 (1) If satisfied that there is a severe water shortage in relation to a 10 particular water management area or water source, the Minister 11 may, by order published in the Gazette, suspend the operation of 12 any management plan, either in whole or in part, in relation to 13 that or any other water management area or water source. 14 (2) Before suspending the operation of a management plan in 15 relation to a water management area or water source, the Minister 16 must consult with the Minister for Climate Change and the 17 Environment. 18 (3) As soon as practicable after an order under this section is 19 published in the Gazette, a copy of the order must be published in 20 an appropriate newspaper. 21 (4) An order under this section expires at the end of 30 June 22 following the date on which it is made or, if made on or after 1 23 April in any year, at the end of 30 June of the following year. 24 (5) An order may not be made under this section in relation to a 25 management plan that has, at any time during the previous 12 26 months, been subject to a prior order under this section unless the 27 Minister is satisfied, for reasons specified in the order, that there 28 is no need for the plan to be amended under Division 9. 29 [4] Section 59 Available water determinations 30 Omit "the various" from section 59 (1) (a). Insert instead "one or more". 31 Page 57

Water Management Amendment Bill 2008 Schedule 6 Amendments relating to other matters [5] Section 59 (1A) 1 Insert after section 59 (1): 2 (1A) An available water determination that is made in relation to a 3 particular category of access licence applies to all subcategories 4 of that category except to the extent to which it otherwise 5 provides. 6 [6] Section 60 Rules of distribution applicable to making of available water 7 determinations 8 Omit "subsection (2)" from section 60 (1). Insert instead "section 49A". 9 [7] Section 60 (2) 10 Omit the subsection. 11 [8] Section 60 (3) 12 Omit "subsection (2)". Insert instead "section 49A". 13 [9] Section 60 (4) 14 Omit "section 87". Insert instead "Division 9". 15 [10] Section 63 Determination of applications 16 Insert "no more than" before "minimal harm" in section 63 (2) (b). 17 [11] Section 68A (1B), the heading to Subdivision 1 of Division 3A of Part 2 of 18 Chapter 3, sections 71B (3) and 77 (2) and clause 7 (1) of Schedule 1B 19 Omit "the register" and "the Register" wherever occurring. 20 Insert instead "the Access Register". 21 [12] Section 71Y General 22 Insert after section 71Y (1): 23 (2) Subsection (1) does not require a dealing to be dealt with in 24 accordance with the access licence dealing rules established by a 25 relevant management plan to the extent to which the rules are 26 suspended by an order in force under section 49A. 27 [13] Section 78 Suspension and cancellation of access licences 28 Omit "the conditions" from section 78 (1) (a). 29 Insert instead "any term or condition". 30 Page 58

Water Management Amendment Bill 2008 Amendments relating to other matters Schedule 6 [14] Section 78 (1) (d) and (e) 1 Insert after section 78 (1) (c): 2 (d) that the holder of the licence has failed to comply with any 3 direction given to the holder under this Act in connection 4 with the licence, 5 (e) that the licence was granted as a result of false, misleading 6 or materially inaccurate information supplied by or on 7 behalf of the applicant. 8 [15] Section 97 Grounds of refusal of certain applications 9 Insert "no more than" before "minimal harm" wherever occurring. 10 [16] Section 109 Suspension and cancellation of approvals 11 Omit "the conditions" from section 109 (1) (a). 12 Insert instead "any term or condition". 13 [17] Section 109 (1) (c1) (ii) 14 Insert "of the access licence" after "the holder". 15 [18] Section 112 16 Omit the section. Insert instead: 17 112 Operation of embargo 18 (1) An embargo applies to any application for an approval made on 19 or after the date on which the embargo took effect, other than: 20 (a) an application to amend an application made before that 21 date, or 22 (b) an application for the extension of the period for which an 23 approval has effect, or 24 (c) any other application of a kind prescribed by the 25 regulations. 26 (2) An application to which an embargo applies is a nullity and is not 27 revived merely because the embargo is subsequently revoked. 28 [19] Section 118 29 Omit the section. Insert instead: 30 118 Requirements for access licences and approvals 31 Nothing in this Part authorises an irrigation corporation or 32 landholder to do anything for which this Act requires an access 33 Page 59

Water Management Amendment Bill 2008 Schedule 6 Amendments relating to other matters licence or approval unless the irrigation corporation or 1 landholder holds an appropriate access licence or approval. 2 [20] Section 120 Entry on to land 3 Omit "by authorised persons" from section 120 (1). 4 Insert instead "by its employees and agents". 5 [21] Section 141 6 Omit the section. Insert instead: 7 141 Requirements for access licences and approvals 8 Nothing in this Part authorises a private irrigation board or 9 landholder to do anything for which this Act requires an access 10 licence or approval unless the private irrigation board or 11 landholder holds an appropriate access licence or approval. 12 [22] Section 199 13 Omit the section. Insert instead: 14 199 Requirements for access licences and approvals 15 Nothing in this Part authorises a private drainage board or 16 landholder to do anything for which this Act requires an access 17 licence or approval unless the private drainage board or 18 landholder holds an appropriate access licence or approval. 19 [23] Section 216 Dissolution 20 Omit section 216 (3). Insert after section 216 (4): 21 (5) If the Governor is satisfied that the winding up of a private 22 drainage board has been completed under this section, the 23 Governor may, by proclamation published in the Gazette, abolish 24 the board. 25 [24] Section 222 26 Omit the section. Insert instead: 27 222 Requirements for access licences and approvals 28 Nothing in this Part authorises a private water trust or landholder 29 to do anything for which this Act requires an access licence or 30 approval unless the private water trust or landholder holds an 31 appropriate access licence or approval. 32 Page 60

Water Management Amendment Bill 2008 Amendments relating to other matters Schedule 6 [25] Section 238 Minister may remove members and Governor may abolish 1 trust 2 Omit section 238 (3). Insert after section 238 (4): 3 (5) If the Governor is satisfied that the winding up of a private water 4 trust has been completed under this section, the Governor may, 5 by proclamation published in the Gazette, abolish the trust. 6 [26] Section 283 Definitions 7 Omit the definition of authorised person. 8 [27] Section 284 9 Omit the section. Insert instead: 10 284 Requirements for access licences and approvals 11 Nothing in this Part authorises a water supply authority to do 12 anything for which this Act requires an access licence or approval 13 unless the water supply authority holds an appropriate access 14 licence or approval. 15 [28] Section 297 Entry on land for inspections 16 Omit "or authorised persons" from section 297 (6). 17 Insert instead "and agents". 18 [29] Section 389 Delegation 19 Omit section 389 (1). Insert instead: 20 (1) The Minister may delegate to any person any functions conferred 21 or imposed on the Minister by or under this Act, other than this 22 power of delegation. 23 [30] Schedule 9 Savings, transitional and other provisions 24 Insert at the end of clause 1 (1): 25 Water Management Amendment Act 2008 26 [31] Schedule 9, clause 66 (b) 27 Insert "water" after "supplementary". 28 Page 61

Water Management Amendment Bill 2008 Schedule 6 Amendments relating to other matters [32] Schedule 9, Part 6 1 Insert after Part 5: 2 Part 6 Provisions consequent on enactment of 3 Water Management Amendment Act 2008 4 72 Definition 5 In this Part, the 2008 amending Act means the Water 6 Management Amendment Act 2008. 7 73 Orders under section 60 (2) of the unamended Act 8 (1) Any order that, immediately before the commencement of this 9 clause, was in force under section 60 (2) is taken to have been 10 made under section 49A, as inserted by the 2008 amending Act. 11 (2) Section 49A (4), as inserted by the 2008 amending Act, does not 12 apply to an order referred to in subclause (1). 13 74 Bore drillers' licences under the 1912 Act 14 (1) A bore driller's licence under the Water Act 1912 is taken to be a 15 bore driller's licence under this Act, and may be varied or 16 revoked accordingly. 17 (2) Unless sooner revoked, a bore driller's licence referred to in 18 subclause (1) expires at the end of 3 years from the date on which 19 it was issued under the Water Act 1912. 20 (3) Until they are repealed, the Water Act 1912 and the Water (Part 21 5--Drillers' Licences) Regulation 1995 continue to apply to a 22 bore driller's licence referred to in subclause (1). 23 [33] Dictionary, definition of "authorised officer" 24 Insert "under section 390" after "by the Minister". 25 [34] Dictionary, definition of "Department" 26 Omit the definition. Insert instead: 27 Department means the Department of Water and Energy. 28 Page 62

Water Management Amendment Bill 2008 Amendments relating to other matters Schedule 6 [35] Dictionary, definitions of "metering equipment" and "nominated water 1 supply work" 2 Insert in alphabetical order: 3 metering equipment includes any water or other meter and any 4 ancillary wiring, pipework, or apparatus and any supporting 5 structure. 6 nominated water supply work, in relation to a water source, 7 means a water supply work, or group of water supply works, that 8 is for the time being nominated under section 71W as a work, or 9 group of works, by means of which water credited to an access 10 licence may be taken from that water source. 11 [36] Dictionary, definition of "water management work" 12 Insert ", and includes any part of such a work" after "flood work". 13 [37] Dictionary, definition of "water supply work" 14 Omit paragraph (d) of the definition. Insert instead: 15 (d) any work (such as a bank or levee) that has, or could have, 16 the effect of diverting water flowing to or from a water 17 source, or 18 [38] Dictionary, definition of "water supply work" 19 Insert ", or could have," after "that has" in paragraph (e) of the definition. 20 Page 63

Water Management Amendment Bill 2008 Schedule 7 Amendment of other Acts Schedule 7 Amendment of other Acts 1 (Section 4) 2 7.1 Dividing Fences Act 1991 No 72 3 Section 25 Application of Act to Crown and local authorities etc 4 Omit "under the Irrigation Corporations Act 1994" from section 25 (1) (d). 5 Insert instead "within the meaning of the Water Management Act 2000". 6 7.2 Law Enforcement (Powers and Responsibilities) Act 2002 7 No 103 8 Schedule 2 Search warrants under other Acts 9 Omit "Water Management Act 2000, section 338". 10 Insert instead "Water Management Act 2000, section 339C". 11 7.3 Water Act 1912 No 44 12 [1] Section 4G Proceedings for offences 13 Omit section 4G (5). 14 [2] Section 4G (7)(11) 15 Insert after section 4G (6): 16 (7) Proceedings for an offence against this Act, or the regulations 17 under this Act, may be commenced at any time within, but not 18 later than, 3 years after the date on which the offence is alleged 19 to have been committed. 20 (8) Proceedings for an offence against this Act, or the regulations 21 under this Act, may also be commenced at any time within, but 22 not later than, 3 years after the date on which evidence of the 23 alleged offence first came to the attention of any relevant 24 authorised officer. 25 (9) If subsection (8) is relied on for the purpose of commencing 26 proceedings for an offence, the process by which the proceedings 27 are commenced must contain particulars of the date on which 28 evidence of the offence first came to the attention of any relevant 29 authorised officer and need not contain particulars of the date on 30 which the offence was committed. 31 Page 64

Water Management Amendment Bill 2008 Amendment of other Acts Schedule 7 (10) The date on which evidence first came to the attention of any 1 relevant authorised officer is the date specified in the process by 2 which the proceedings are commenced, unless the contrary is 3 established. 4 (11) In this section: 5 authorised officer has the same meaning as it has in the Water 6 Management Act 2000. 7 evidence of an offence means evidence of any act or omission 8 constituting the offence. 9 [3] Section 180I 10 Omit the section. 11 [4] Section 184A 12 Omit the section. 13 Page 65

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