WATER LEGISLATION AMENDMENT (INSPECTOR-GENERAL OF WATER COMPLIANCE AND OTHER MEASURES) BILL 2021

2019-2020-2021

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Water Legislation Amendment

(Inspector-General of Water Compliance

and Other Measures) Bill 2021

No. , 2021

(Resources, Water and Northern Australia)

A Bill for an Act to amend the

Water Act 2007

and

the

Basin Plan 2012

, and for related purposes

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 2

Schedule 1--Amendment of the Water Act 2007

Part 1--Management of Basin water resources

Water Act 2007

Part 2--Compliance and enforcement

Water Act 2007

Part 3--Transitional provisions

Water Act 2007

Schedule 2--Amendment of the Basin Plan 2012

105

Basin Plan 2012

105

Schedule 3--Other amendments of the Water Act 2007

108

Water Act 2007

108

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

A Bill for an Act to amend the

Water Act 2007

and

the

Basin Plan 2012

, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

Water Legislation Amendment (Inspector-General

of Water Compliance and Other Measures) Act 2021

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of

this Act

A single day to be fixed by Proclamation.

A Proclamation must not specify a day

earlier than the day after the day the Minister

is satisfied that the amendments of the

referred provisions to be made by this Act

have been approved by all referring States.

The Minister must announce by notifiable

instrument the day the Minister is so

satisfied.

However, if the provisions do not commence

within the period of 6 months beginning on

the day after the day the Minister is satisfied

that the amendments of the referred

provisions to be made by this Act have been

approved by all referring States, they

commence on the day after the end of that

period. If the provisions commence in this

way, the Minister must announce by

notifiable instrument the day the provisions

commenced.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

(3) In this section,

referred provisions

and

referring State

have the

meanings given by section 18B of the

Water Act 2007

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

Note:

The provisions of the

Basin Plan 2012

amended or inserted by this

Act, and any other provisions of that instrument, may be amended or

repealed by a legislative instrument prepared and adopted under

Division 1 of Part 2 of the

Water Act 2007

(see subsection 13(5) of the

Legislation Act 2003

Schedule 1

Amendment of the Water Act 2007

Part 1

Management of Basin water resources

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

Schedule 1--Amendment of the Water Act

2007

Part 1--Management of Basin water resources

Water Act 2007

1 Section 9 (after note 2)

Insert:

Note 3:

See also sections 73C and 73D, which clarify the constitutional basis

for sections 73A and 73B, and sections 73J and 73K, which clarify the

constitutional basis for sections 73F to 73H.

2 After Division 3 of Part 2

Insert:

Division 3A--Offences and civil penalty provisions

Subdivision A--Contraventions of laws relating to taking water

from a water resource

73A Taking water when not permitted under State law--basic

contravention

(1) A person contravenes this subsection if:

(a) the person engages in conduct; and

(b) the conduct results in water being taken from a water

resource; and

the water resource; and

(d) the taking of the water would constitute a contravention of

the law of a State if any fault element or state of mind

requirement were to be satisfied in relation to the taking of

the water (the

potential

State contravention

Amendment of the Water Act 2007

Schedule 1

Management of Basin water resources

Part 1

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

Fault-based offence

(2) A person commits an offence if the person contravenes

subsection (1).

Note:

See section 170A in relation to the physical elements of the offence.

Penalty: Imprisonment for 3 years or 180 penalty units, or both.

(3) For the purposes of subsection (2):

(a) recklessness applies to paragraph (1)(b); and

(b) strict liability applies to paragraphs (1)(c) and (d).

(4) In a prosecution for an offence against subsection (2), it is not

necessary to prove the existence of any fault element or state of

mind requirement in relation to the potential State contravention.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes

subsection (1).

Note:

In proceedings against a person for a contravention of a civil penalty

provision, it is generally not necessary to prove the person's state of

mind (see section 154C).

Civil penalty:

(a) for an individual--1,000 penalty units; or

(b) for a body corporate--10,000 penalty units.

Presumption about taking water by means of works

(6) For the purposes of subsection (5), if water was taken from a water

resource by means of works that were on or beneath land (whether

or not the works were attached to the land) at any time when the

water was taken, then it must be presumed (in the absence of

evidence to the contrary) that the water was taken by:

(a) unless paragraph (b) applies, the person (the

owner

) who

owned the land at any time when the water was taken; or

(b) if a person other than the owner occupied the land at all times

when the water was taken--that person.

Schedule 1

Amendment of the Water Act 2007

Part 1

Management of Basin water resources

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

Defences

(7) In a proceeding against a person (the

first person

) for an alleged

contravention of subsection (1), it is not necessary for the person

who instituted the proceeding to prove that no exception,

exemption, excuse, qualification or justification provided by the

law of the State applies in relation to the potential State

contravention.

(8) However:

(a) the first person may rely on an exception, exemption, excuse,

qualification or justification referred to in subsection (7) if

the exception, exemption, excuse, qualification or

justification does not involve determining the first person's

state of mind; and

(b) if the first person wishes to rely on such an exception,

exemption, excuse, qualification or justification, the first

person bears an evidential burden in relation to that matter.

Note:

For

evidential burden

, see subsection 4(1) of this Act.

(9) To avoid doubt, nothing in subsection (7) or (8) is intended to

exclude the operation of Part 2.3 of the

Criminal Code

section 154D of this Act (mistake of fact in relation to

contraventions of civil penalty provisions) in relation to an alleged

contravention of subsection (1).

73B Taking water when not permitted under State law--aggravated

contravention

(1) A person contravenes this subsection if:

(a) the person engages in conduct; and

(b) the conduct results in water being taken from a water

resource; and

the water resource; and

(d) the taking of the water would constitute a contravention of

the law of a State if any fault element or state of mind

requirement were to be satisfied in relation to the taking of

the water (the

potential

State contravention

); and

(e) any of the following circumstances exists:

Amendment of the Water Act 2007

Schedule 1

Management of Basin water resources

Part 1

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(i) tier 3 water sharing arrangements are in place when the

water is taken;

(ii) the water is taken from a place that is downstream from

where held environmental water is, or was, being

delivered during a period of environmental watering,

and the taking of some or all of the water occurred

within the period of 60 days starting on the first day the

held environmental water started to be delivered;

(iii) the circumstance in paragraph 6.12(1)(a) of the Basin

Plan exists in relation to the surface water SDL resource

unit from which the water is taken, and at the time the

water is taken the State is taking, or is proposing to take,

steps of the kind referred to in subsection 6.12(5) of the

Basin Plan in relation to that circumstance;

(iv) the circumstance in paragraph 6.12C(1)(a) of the Basin

Plan exists in relation to the groundwater SDL resource

unit from which the water is taken, and at the time the

water is taken the State is taking, or is proposing to take,

steps of the kind referred to in subsection 6.12C(5) of

the Basin Plan in relation to that circumstance;

(v) the taking of the water significantly contributes to, or is

likely to significantly contribute to, harm to the

environment in a State other than the State where the

water was taken;

(vi) the taking of the water significantly contributes to, or is

likely to significantly contribute to, serious harm to the

environment;

(vii) the water is taken from a wetland (including declared

Ramsar wetlands) that is protected under a law of the

Commonwealth or a law of a State.

Fault-based offence

(2) A person commits an offence if the person contravenes

subsection (1).

Note:

See section 170A in relation to the physical elements of the offence.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

(3) For the purposes of subsection (2):

Schedule 1

Amendment of the Water Act 2007

Part 1

Management of Basin water resources

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(a) recklessness applies to paragraphs (1)(b) and (e); and

(b) strict liability applies to paragraphs (1)(c) and (d).

(4) In a prosecution for an offence against subsection (2), it is not

necessary to prove the existence of any fault element or state of

mind requirement in relation to the potential State contravention.

Alternative verdict

(5) In a trial for an offence against subsection (2), the trier of fact may

find the defendant not guilty of that offence, but guilty of an

offence against subsection 73A(2), if:

(a) the trier of fact is not satisfied that the defendant is guilty of

the offence against subsection (2) of this section; and

(b) the trier of fact is satisfied that the defendant is guilty of the

offence against subsection 73A(2); and

relation to that finding of guilt.

Civil penalty provision

(6) A person is liable to a civil penalty if the person contravenes

subsection (1).

Note:

In proceedings against a person for a contravention of a civil penalty

provision, it is generally not necessary to prove the person's state of

mind (see section 154C).

Civil penalty:

(a) for an individual--5,000 penalty units; or

(b) for a body corporate--50,000 penalty units.

Presumption about taking water by means of works

(7) For the purposes of subsection (6), if water was taken from a water

resource by means of works that were on or beneath land (whether

or not the works were attached to the land) at any time when the

water was taken, then it must be presumed (in the absence of

evidence to the contrary) that the water was taken by:

(a) unless paragraph (b) applies, the person (the

owner

) who

owned the land at any time when the water was taken; or

Amendment of the Water Act 2007

Schedule 1

Management of Basin water resources

Part 1

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(b) if a person other than the owner occupied the land at all times

when the water was taken--that person.

Defences

(8) In a proceeding against a person (the

first person

) for an alleged

contravention of subsection (1), it is not necessary for the person

who instituted the proceeding to prove that no exception,

exemption, excuse, qualification or justification provided by the

law of the State applies in relation to the potential State

contravention.

(9) However:

(a) the first person may rely on an exception, exemption, excuse,

qualification or justification referred to in subsection (8) if

the exception, exemption, excuse, qualification or

justification does not involve determining the first person's

state of mind; and

(b) if the first person wishes to rely on such an exception,

exemption, excuse, qualification or justification, the first

person bears an evidential burden in relation to that matter.

Note:

For

evidential burden

, see subsection 4(1) of this Act.

(10) To avoid doubt, nothing in subsection (8) or (9) is intended to

exclude the operation of Part 2.3 of the

Criminal Code

section 154D of this Act (mistake of fact in relation to

contraventions of civil penalty provisions) in relation to an alleged

contravention of subsection (1).

Definitions

(11) In this section:

environment

includes environmental assets and environmental

outcomes.

groundwater SDL resource unit

has the same meaning as in the

Basin Plan.

harm

includes direct harm, indirect harm, and the cumulative

effect of any harm.

Schedule 1

Amendment of the Water Act 2007

Part 1

Management of Basin water resources

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

surface water SDL resource unit

has the same meaning as in the

Basin Plan.

tier 3 water sharing arrangements

means the tier 3 water sharing

arrangements provided for in the Agreement.

73C Constitutional basis of sections 73A and 73B

Sections 73A and 73B rely on the Commonwealth's legislative

powers under paragraph 51(xxix) (external affairs) of the

Constitution as it relates to giving effect to Australia's obligations

under relevant international agreements, in particular:

(a) paragraph 1 of Article 3 and paragraph 1 of Article 4 of the

Ramsar Convention; and

(b) subparagraphs (a), (c) to (e) and (k) of Article 8 and

subparagraph (a) of Article 10 of the Biodiversity

Convention.

73D Additional operation of sections 73A and 73B

(1) In addition to section 73C, sections 73A and 73B have effect as

provided by this section.

Corporations

(2) Each of sections 73A and 73B also has the effect it would have if

the relevant contravening conduct were expressly confined to:

(a) conduct by a constitutional corporation; or

(b) conduct by another person that affects the activities of a

constitutional corporation.

Trade and commerce

(3) Each of sections 73A and 73B also has the effect it would have if

the relevant contravening conduct were expressly confined to

conduct that takes place in the course of trade and commerce:

(a) with other countries; or

(b) among the States; or

Amendment of the Water Act 2007

Schedule 1

Management of Basin water resources

Part 1

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

Territories

(4) Each of sections 73A and 73B also has the effect it would have if

the relevant contravening conduct were expressly confined to

conduct that takes place in a Territory.

Agencies of the Commonwealth

(5) Each of sections 73A and 73B also has the effect it would have if

the relevant contravening conduct were expressly confined to

conduct by an agency of the Commonwealth.

Definitions

(6) In this section:

conduct

includes an act or omission.

relevant contravening conduct

, in relation to section 73A or 73B,

means conduct that constitutes, or would constitute, a

contravention of a provision of that section.

73E Restrictions on taking action under Part 8 or 10AA in relation

to alleged contravention of section 73A or 73B

(1) The Inspector-General or an authorised compliance officer must

not take action under Part 8 or 10AA in relation to an alleged

contravention of section 73A or 73B unless the Inspector-General

has given the appropriate agency of the State where the

contravention is alleged to have occurred a written notice stating

that:

(a) the Inspector-General intends to take action under Part 8 or

10AA in relation to the alleged contravention; and

(b) the appropriate agency of the State may, within 28 days after

receiving the notice, notify the Inspector-General, in writing,

that the appropriate agency of the State is investigating or

taking other enforcement action in relation to the conduct

constituting the alleged contravention.

(2) If:

Schedule 1

Amendment of the Water Act 2007

Part 1

Management of Basin water resources

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(a) under subsection (1), the Inspector-General gives the

appropriate agency of a State a written notice in relation to an

alleged contravention; and

(b) within 28 days after receiving the notice, the appropriate

agency of the State notifies the Inspector-General, in writing,

under paragraph (1)(b);

the Inspector-General or an authorised compliance officer must

not, within 3 months after the Inspector-General receives the

notification, take action under Part 8 or 10AA in relation to the

alleged contravention.

(3) Despite subsection (2), if, within 3 months after the

Inspector-General receives a notification from the appropriate

agency of a State under paragraph (1)(b), the appropriate agency of

the State:

(a) withdraws the notification by written notice to the

Inspector-General; or

(b) requests the Inspector-General, in writing, to take action

under Part 8 or 10AA in relation to the relevant alleged

contravention;

the Inspector-General or an authorised compliance officer may, at

any time after receiving the withdrawal notice or request, take

action under Part 8 or 10AA in relation to the relevant alleged

contravention.

(4) A failure to comply with subsection (1) or (2) in relation to an

alleged contravention does not affect the validity of any action

taken by the Inspector-General or an authorised compliance officer

under this Act in relation to the alleged contravention.

(5) A notice or notification under this section is not a legislative

instrument.

(6) To avoid doubt, subsection (2) does not prevent the

Inspector-General from exercising powers under this Act, other

than under Part 8 or 10AA, during the 3 month period to which that

subsection applies in relation to conduct constituting an alleged

contravention of section 73A or 73B.

Note:

For example, the Inspector-General may disclose information to a

State or other body under Division 5 of Part 9A.

Amendment of the Water Act 2007

Schedule 1

Management of Basin water resources

Part 1

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

Subdivision B--Contraventions of the Basin Plan

73F Failing to give reasons for restricting trade of water delivery

right as required by the Basin Plan

(1) A person contravenes this subsection if:

(a) the person is required to give a notification under

subsection 12.30(1) of the Basin Plan; and

(b) the person fails to give the notification in accordance with

subsection 12.30(2) of the Basin Plan.

(2) Subsection (1) does not apply if the person has a reasonable

excuse.

Note:

The person bears an evidential burden in relation to the matter in this

subsection (see section 154E).

Civil penalty provision

(3) A person is liable to a civil penalty if the person contravenes

subsection (1).

Note 1:

In proceedings against a person for a contravention of a civil penalty

provision, it is generally not necessary to prove the person's state of

mind (see section 154C).

Note 2:

This section applies in relation to conduct described in section 73J.

Civil penalty:

60 penalty units.

73G Failing to report price for trade of water access right as

required by the Basin Plan

(1) A person contravenes this subsection if:

(a) the person is required to give a notification under

subsection 12.48(1) or (2) of the Basin Plan; and

(b) the person fails to give the notification in accordance with

subsection 12.48(3) of the Basin Plan.

(2) Subsection (1) does not apply if the person has a reasonable

excuse.

Note:

The person bears an evidential burden in relation to the matter in this

subsection (see section 154E).

Schedule 1

Amendment of the Water Act 2007

Part 1

Management of Basin water resources

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

Civil penalty provision

(3) A person is liable to a civil penalty if the person contravenes

subsection (1).

Note 1:

In proceedings against a person for a contravention of a civil penalty

provision, it is generally not necessary to prove the person's state of

mind (see section 154C).

Note 2:

This section applies in relation to conduct described in section 73J.

Civil penalty:

60 penalty units.

73H Trading water access right before water announcement made

or generally available in contravention of the Basin Plan

(1) A person contravenes this subsection if the person contravenes

subsection 12.51(2) of the Basin Plan.

Civil penalty provision

(2) A person is liable to a civil penalty if the person contravenes

subsection (1).

Note 1:

In proceedings against a person for a contravention of a civil penalty

provision, it is generally not necessary to prove the person's state of

mind (see section 154C).

Note 2:

A person who wishes to rely on the exception in section 12.52 of the

Basin Plan bears an evidential burden in relation to the matter in that

section (see section 154E of this Act).

Note 3:

This section applies in relation to conduct described in section 73J or

73K.

Civil penalty:

(a) for an individual--1,000 penalty units; or

(b) for a body corporate--10,000 penalty units.

73J Application of sections 73F to 73H

(1) Sections 73F to 73H apply in relation to relevant contravening

conduct of any of the following kinds:

(a) relevant contravening conduct by a constitutional

corporation;

Amendment of the Water Act 2007

Schedule 1

Management of Basin water resources

Part 1

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(b) relevant contravening conduct by another person that affects

the activities of a constitutional corporation;

of trade and commerce:

(i) among the States; or

(ii) between a State and a Territory;

(d) relevant contravening conduct that:

(i) takes place in a Territory; or

(ii) relates to tradeable water rights in relation to a water

resource in a Territory;

(e) relevant contravening conduct by an agency of the

Commonwealth.

Definitions

(2) In this section:

conduct

includes an act or omission.

relevant contravening conduct

, in relation to section 73F, 73G or

73H, means conduct that constitutes, or would constitute, a

contravention of a provision of that section.

73K Additional application of section 73H

Postal, telegraphic, telephonic or other like services

(1) In addition to section 73J, section 73H also applies in relation to

relevant contravening conduct that takes place using postal,

telegraphic, telephonic or other like services (within the meaning

of paragraph 51(v) of the Constitution).

Definitions

(2) In this section:

conduct

includes an act or omission.

relevant contravening conduct

means conduct that constitutes, or

would constitute, a contravention of section 73H.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

Part 2--Compliance and enforcement

Water Act 2007

3 Subsection 4(1)

Insert:

authorised compliance officer

means an individual whose

appointment by the Inspector-General under section 222G is in

force.

designated compliance provision

means any of the following

provisions:

(a) a provision of Part 2 or regulations made for the purposes of

that Part;

(b) section 166;

(d) section 222D;

(e) section 237A;

(f) section 238.

enforcement body

has the meaning given by the

Privacy Act 1988

enforcement related activity

has the meaning given by the

Privacy

Act 1988

evidential burden

, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

4 Subsection 4(1) (definition of

evidential material

)

Repeal the definition, substitute:

evidential material

means any of the following:

(a) a thing with respect to which a designated compliance

provision has been contravened or is suspected, on

reasonable grounds, to have been contravened;

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(b) a thing that there are reasonable grounds for suspecting will

afford evidence as to the contravention of a designated

compliance provision;

intended to be used for the purpose of contravening a

designated compliance provision.

5 Subsection 4(1)

Insert:

Inspector-General

means the Inspector-General of Water

Compliance referred to in section 215B.

investigation warrant

means:

(a) a warrant issued by a magistrate under section 226; or

(b) a warrant signed by a magistrate under section 227.

monitoring warrant

means a warrant issued by a magistrate under

section 225.

paid work

means work for financial gain or reward (whether as an

employee, a self-employed person or otherwise).

relevant chief executive

, in Division 5 of Part 8, has the meaning

given by section 155A.

6 Section 9 (note 5)

Omit "Note 5", substitute "Note 4".

7 Section 9 (note 6)

Repeal the note, substitute:

Note 5:

See also subsection 165(6), which clarifies the constitutional basis for

giving a direction under subsection 165(2) in certain circumstances.

8 Paragraph 18E(5)(a)

Omit "section 216 or 219 or by subsection 238(1)", substitute

"section 219 or by subsection 222D(1)".

9 After subsection 22(8)

Insert:

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

Basin Plan may confer functions or powers on Inspector-General

(8A) A provision of the Basin Plan that relates to a matter set out in the

table in subsection (1), or a matter prescribed by the regulations for

the purposes of subsection (8), may confer functions or powers on

the Inspector-General:

(a) for the purpose of ensuring compliance with provisions of the

Basin Plan that relate to that matter; or

(b) otherwise relating to that matter.

10 After subsection 46(2)

Insert:

(2A) In preparing an amendment of a provision of the Basin Plan that

confers functions or powers on the Inspector-General or otherwise

relates to the Inspector-General, the Authority must obtain, and

have regard to, the advice of the Inspector-General.

11 Subsection 71(1) (note)

Omit "Note", substitute "Note 1".

12 At the end of subsection 71(1)

Add:

Note 2:

A Basin State must also provide information, in writing, to the

Inspector-General about some of the matters referred to in this

subsection (see the Basin Plan).

13 At the end of section 71

Add:

(3) The Authority must give a copy of each report received under

subsection (1) to the Inspector-General as soon as practicable after

the Authority receives it.

14 Before Division 4 of Part 2

Insert:

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

Division 3B--Audits

73L Audits

(1) The Inspector-General may conduct, or appoint or establish a

person or body (an

auditor

) to conduct, periodic audits to assess

the extent of compliance with either or both of the following:

(a) the Basin Plan;

(b) water resource plans.

(2) In conducting an audit, the auditor must have regard to the

following:

(a) guidelines (if any) issued by the Inspector-General relating to

the conduct of an audit;

(b) any applicable guidelines issued by the Inspector-General

under section 215V;

under section 215VA.

(3) The auditor must:

(a) prepare a report setting out the findings of the audit and any

recommendations arising from the audit; and

(b) before the report is finalised, provide any person or body to

which the audit relates with an opportunity to comment on

the proposed findings and recommendations.

(4) After a report prepared under subsection (3) is finalised, the

Inspector-General must publish a copy of the report on the

Inspector-General's website or the Department's website.

73M Responses to audit reports including recommendations that an

agency take certain action

(1) This section applies if:

(a) the Inspector-General publishes a report under

subsection 73L(4); and

(b) the report includes a recommendation that an agency of the

Commonwealth, or an agency of a State or Territory, take

certain action.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(2) The agency to which the recommendation is made must give a

written response to the Inspector-General, within 90 days after the

report was published or within any longer period agreed to by the

Inspector-General, that sets out:

(a) whether the agency accepts the recommendation (in whole or

in part); and

(b) if the agency accepts the recommendation (in whole or in

part)--details of any action that the agency proposes to take

to give effect to the recommendation (in whole or in part);

and

or in part)--the reasons for not accepting the

recommendation (in whole or in part).

(3) The Inspector-General may publish a copy of a response received

under subsection (2) on the Inspector-General's website or the

Department's website.

15 Subsection 86J(2)

Omit "section 216 or 219 or by subsection 223(1) or 238(1)", substitute

"section 219 or by subsection 222D(1)".

16 Subsection 86J(3)

Repeal the subsection, substitute:

(3) Part 10 so applies as if references in section 221 to the Authority's

functions under section 219 included references to the Authority's

functions under this Part.

17 Paragraphs 86J(4)(b) and (c)

Repeal the paragraphs.

18 At the end of Part 2A

Add:

86K Additional functions of the Inspector-General

(1) The Inspector-General has, in connection with:

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(a) the performance of the Inspector-General's functions and

duties under this Part; and

(b) the exercise of the Inspector-General's powers under this

Part;

such powers in a Basin State that is a referring State, or in the

Australian Capital Territory, as the Inspector-General has in

connection with the performance of the Inspector-General's other

functions under this Act.

(2) The application of subsection (1) to the Inspector-General's powers

under Part 10AA in relation to premises in, or information held in,

a referring State or the Australian Capital Territory is not limited

by subsection 223(1) or 238(1).

(3) Part 10AA applies as if:

(a) for the purposes of Subdivision B of Division 1 of that Part, a

reference in the definition of

evidential material

subsection 4(1) to a designated compliance provision

included a reference to a provision of this Part or regulations

made for the purposes of this Part; and

(b) a reference in Subdivision B of Division 1 and Division 3 of

that Part to a designated compliance provision included a

reference to a provision of this Part or regulations made for

the purposes of this Part.

(4) However, an authorised compliance officer must not:

(a) enter premises under Subdivision B of Division 1 of

Part 10AA as applied by this section; or

(b) exercise any of the powers under that Subdivision;

except:

following purposes:

(i) determining whether a provision of this Part or

regulations made for the purposes of this Part has been,

or is being, complied with;

(ii) determining whether information given in compliance,

or purported compliance, with section 222D, in its

application under section 86J, is correct;

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(iii) determining whether information given in compliance,

or purported compliance, with section 238, as applied

by this section, is correct; or

(d) if the authorised compliance officer has reasonable grounds

for suspecting that there may be evidential material on the

premises relating to a possible contravention of a provision of

this Part or regulations made for the purposes of this Part.

(5) Also, the Inspector-General must not require a person to give

information under Division 3 of Part 10AA as applied by this

section unless the Inspector-General has reason to believe that

information relating to a matter that is relevant to the performance

of the Inspector-General's functions or duties, or the exercise of

the Inspector-General's powers, under this Part is in the person's

possession, custody or control (whether held electronically or in

any other form).

86L Functions and powers of the Inspector-General

The Inspector-General has, for the purposes of this Part, the

functions and powers conferred on it under Part 8 as an appropriate

enforcement agency.

19 Paragraph 137(a)

Repeal the paragraph, substitute:

(a) the Inspector-General if the contravention is a contravention

of:

(i) a designated compliance provision; or

(ii) a provision of Part 2A or regulations made for the

purposes of that Part; or

(iii) a provision of Part 10AB; or

20 At the end of section 137

Add:

; or (d) if the contravention is of subsection 168(1) (the

executive

officer contravention

)--the person or body that is the

appropriate enforcement agency under paragraph (a), (b) or

of the civil penalty provision referred to in

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

paragraph 168(1)(a) that relates to the executive officer

contravention.

21 Section 140 (heading)

Repeal the heading, substitute:

140 Grant of injunctions

22 Paragraph 140(5)(a)

After "this Act,", insert "the Basin Plan,".

23 Paragraphs 147(3)(a) and (b)

Repeal the paragraphs, substitute:

(a) if the wrongdoer is an individual and a single amount is

specified for the civil penalty provision--the specified

amount; or

(b) if the wrongdoer is an individual and separate amounts for

individuals and bodies corporate are specified for the civil

penalty provision--the amount specified for an individual; or

specified for the civil penalty provision--an amount equal to

5 times the specified amount; or

(d) if the wrongdoer is a body corporate and separate amounts

for individuals and bodies corporate are specified for the civil

penalty provision--the amount specified for a body

corporate.

24 At the end of section 147

Add:

Civil double jeopardy

(6) A Court must not make a pecuniary penalty order against a person

for a contravention of a civil penalty provision if a pecuniary

penalty order has been made against the person under a civil

penalty provision of a law of the Commonwealth or a law of a

State in relation to conduct that is substantially the same as the

conduct constituting the contravention.

Note:

See also Subdivision B of this Division and section 250B.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

25 Sections 148 and 149

Repeal the sections, substitute:

148 Multiple contraventions

(1) A Court may make a single pecuniary penalty order against a

person for multiple contraventions of a civil penalty provision if

proceedings for the contraventions are founded on the same facts,

or if the contraventions form, or are part of, a series of

contraventions of the same or a similar character.

Note:

For continuing contraventions of civil penalty provisions, see

section 154B.

(2) However, the penalty must not exceed the sum of the maximum

penalties that could be ordered if a separate penalty were ordered

for each of the contraventions.

148A Proceedings may be heard together

A Court may direct that 2 or more proceedings for pecuniary

penalty orders are to be heard together.

149 Civil evidence and procedure rules for pecuniary penalty orders

A Court must apply the rules of evidence and procedure for civil

matters when hearing proceedings for a pecuniary penalty order.

26 Section 151

After "offence", insert "against a law of the Commonwealth or a law of

a State".

27 Paragraph 152(1)(a)

Repeal the paragraph, substitute:

(a) criminal proceedings for an offence against a law of the

Commonwealth or a law of a State are started, or have

already been started, against the person; and

28 Subsection 152(2)

Repeal the subsection, substitute:

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(2) The proceedings for the order (the

civil proceedings

) may be

resumed if the person is not convicted of the offence. Otherwise:

(a) the civil proceedings are dismissed; and

(b) costs must not be awarded in relation to the civil proceedings.

29 Section 153

After "proceedings", insert "for an offence against a law of the

Commonwealth or a law of a State".

30 Section 154

After "in criminal proceedings", insert "for an offence against a law of

the Commonwealth or a law of a State".

31 At the end of Division 4 of Part 8

Add:

Subdivision C--Miscellaneous

154A Ancillary contravention of civil penalty provisions

(1) A person must not:

(a) attempt to contravene a civil penalty provision; or

(b) aid, abet, counsel or procure a contravention of a civil

penalty provision; or

a civil penalty provision; or

(d) be in any way, directly or indirectly, knowingly concerned in,

or party to, a contravention of a civil penalty provision; or

(e) conspire with others to effect a contravention of a civil

penalty provision.

Civil penalty provision

(2) A person who contravenes subsection (1) in relation to a civil

penalty provision is taken to have contravened the provision.

Note:

Section 154C (which provides that a person's state of mind does not

need to be proven in relation to a civil penalty provision) does not

apply to the extent that proceedings relate to a contravention of

subsection (1) of this section (see subsection 154C(2)).

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

154B Continuing contraventions of civil penalty provisions

(1) If an act or thing is required under a civil penalty provision to be

done:

(a) within a particular period; or

(b) before a particular time;

then the obligation to do that act or thing continues until the act or

thing is done (even if the period has expired or the time has

passed).

(2) A person who contravenes a civil penalty provision that requires an

act or thing to be done:

(a) within a particular period; or

(b) before a particular time;

commits a separate contravention of that provision in respect of

each day during which the contravention occurs (including the day

the relevant pecuniary penalty order is made or any later day).

154C State of mind

(1) In proceedings for a pecuniary penalty order against a person for a

contravention of a civil penalty provision, it is not necessary to

prove:

(a) the person's intention; or

(b) the person's knowledge; or

(d) the person's negligence; or

(e) any other state of mind of the person.

(2) Subsection (1) does not apply to the extent that the proceedings

relate to a contravention of subsection 154A(1) (ancillary

contravention of civil penalty provisions).

(3) Subsection (1) does not affect the operation of section 154D

(mistake of fact).

(4) Subsection (1) does not apply to the extent that the civil penalty

provision, or a provision that relates to the civil penalty provision,

expressly provides otherwise.

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

154D Mistake of fact

(1) A person is not liable to have a pecuniary penalty order made

against the person for a contravention of a civil penalty provision

if:

(a) at or before the time of the conduct constituting the

contravention, the person:

(i) considered whether or not facts existed; and

(ii) was under a mistaken but reasonable belief about those

facts; and

(b) had those facts existed, the conduct would not have

constituted a contravention of the civil penalty provision.

(2) For the purposes of subsection (1), a person may be regarded as

having considered whether or not facts existed if:

(a) the person had considered, on a previous occasion, whether

those facts existed in the circumstances surrounding that

occasion; and

(b) the person honestly and reasonably believed that the

circumstances surrounding the present occasion were the

same, or substantially the same, as those surrounding the

previous occasion.

(3) A person who wishes to rely on subsection (1) or (2) in

proceedings for a pecuniary penalty order bears an evidential

burden in relation to that matter.

154E Exceptions etc. to civil penalty provisions--burden of proof

If, in proceedings for a pecuniary penalty order against a person for

a contravention of a civil penalty provision, the person wishes to

rely on any exception, exemption, excuse, qualification or

justification that applies in relation to the civil penalty provision,

then the person bears an evidential burden in relation to that matter.

32 After section 155

Insert:

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

155A Relevant chief executive

The

relevant chief executive

for the purpose of exercising powers

under this Division in relation to an infringement notice that has

been given to a person by an appropriate enforcement agency is:

(a) if the infringement notice was given by the

Inspector-General--the Inspector-General; or

(b) if the infringement notice was given by the ACCC--the

ACCC; or

Secretary of the Department.

33 Subsection 156(3)

Repeal the subsection, substitute:

(3) A single infringement notice must relate only to a single

contravention of a single designated civil penalty provision unless

subsection (4) applies.

(4) The appropriate enforcement agency may give a person a single

infringement notice relating to multiple contraventions of a single

designated civil penalty provision if:

(a) the provision requires the person to do a thing within a

particular period or before a particular time; and

(b) the person fails or refuses to do that thing within that period

or before that time; and

(d) each contravention is constituted by the failure or refusal on

one of those days.

However, the infringement notice must not require the person to

pay more than one penalty in respect of the same conduct.

Note:

For continuing contraventions of civil penalty provisions, see

section 154B.

34 Sections 157 to 159

Repeal the sections substitute:

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

157 Matters to be included in an infringement notice

(1) An infringement notice must:

(a) be identified by a unique number; and

(b) state the day on which it is given; and

(d) state the name and contact details of the appropriate

enforcement agency that gave the notice; and

(e) give brief details of the alleged contravention, or each alleged

contravention, to which the notice relates, including:

(i) the civil penalty provision that was allegedly

contravened; and

(ii) the maximum penalty that a court could impose for each

contravention, if the provision were contravened; and

(iii) the time (if known) and day of, and the place of, each

alleged contravention; and

(f) state the amount that is payable under the notice; and

(g) give an explanation of how payment of the amount is to be

made; and

(h) state that, if the person to whom the notice is given

pays the

amount to the appropriate enforcement agency, on behalf of

the Commonwealth, within 28 days after the day the notice is

given, then (unless the notice is withdrawn), proceedings

seeking a pecuniary penalty order will not be brought in

relation to the alleged contravention; and

(i) state that payment of the amount is not an admission of

liability; and

(j) state that the person may apply to the relevant chief executive

to have the period in which to pay the amount extended; and

(k) state that the person may choose not to pay the amount and, if

the person does so, proceedings seeking a pecuniary penalty

order may be brought in relation to the alleged contravention;

and

(l) set out how the notice can be withdrawn; and

(m) state that, if the notice is withdrawn, proceedings seeking a

pecuniary penalty order may be brought in relation to the

alleged contravention; and

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(n) state that the person may make written representations to the

relevant chief executive seeking the withdrawal of the notice;

and

(o) set out such other matters (if any) as are prescribed by the

regulations.

Amount of penalty

(2) If the infringement notice relates to only one alleged contravention

of the provision by the person, the amount to be stated in the notice

for the purposes of paragraph (1)(f) is the lesser of the following:

(a) one-fifth of the maximum penalty that a court could impose

on the person for that contravention;

(b) 12 penalty units where the person is an individual, or 60

penalty units where the person is a body corporate.

Note:

To work out the maximum penalty for the purposes of paragraph (a)

of this subsection, see subsection 147(3).

(3) If the infringement notice relates to more than one alleged

contravention of the provision by the person, the amount to be

stated in the notice for the purposes of paragraph (1)(f) is the lesser

of the following:

(a) one-fifth of the amount worked out by adding together the

maximum penalty that a court could impose on the person for

each alleged contravention;

(b) either:

(i) if the person is an individual--the number of penalty

units worked out by multiplying the number of alleged

contraventions by 12; or

(ii) if the person is a body corporate--the number of

penalty units worked out by multiplying the number of

alleged contraventions by 60.

Note 1:

Under subsection 156(4), a single infringement notice may only deal

with multiple contraventions if they are contraventions of a single

provision continuing over a period.

Note 2:

To work out the maximum penalty for the purposes of paragraph (a)

of this subsection, see subsection 147(3).

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

158 Extension of time to pay amount

(1) A person to whom an infringement notice has been given may

apply to the relevant chief executive for an extension of the period

referred to in paragraph 157(1)(h).

(2) If the application is made before the end of that period, the relevant

chief executive may, in writing, extend that period. The relevant

chief executive may do so before or after the end of that period.

(3) If the relevant chief executive extends that period, a reference in

this Division, or in a notice or other instrument under this Division,

to the period referred to in paragraph 157(1)(h) is taken to be a

reference to that period so extended.

(4) If the relevant chief executive does not extend that period, a

reference in this Division, or in a notice or other instrument under

this Division, to the period referred to in paragraph 157(1)(h) is

taken to be a reference to the period that ends on the later of the

following days:

(a) the day that is the last day of the period referred to in

paragraph 157(1)(h);

(b) the day that is 7 days after the day the person was given

notice of the relevant chief executive's decision not to extend

the period.

(5) The relevant chief executive may extend the period more than once

under subsection (2).

159 Withdrawal of an infringement notice

Representations seeking withdrawal of infringement notice

(1) A person to whom an infringement notice has been given may

make written representations to the relevant chief executive

seeking the withdrawal of the notice.

Withdrawal of infringement notice

(2) The relevant chief executive may withdraw an infringement notice

given to a person (whether or not the person has made written

representations seeking the withdrawal).

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(3) When deciding whether or not to withdraw an infringement notice

(the

relevant infringement notice

), the relevant chief executive:

(a) must take into account any written representations seeking

the withdrawal that were given by the person to the relevant

chief executive; and

(b) may take into account the following:

(i) whether a court has previously imposed a penalty on the

person for a contravention of a provision subject to an

infringement notice under this Division;

(ii) the circumstances of the alleged contravention;

(iii) whether the person has paid an amount, stated in an

earlier infringement notice, for a contravention of a

provision subject to an infringement notice under this

Division if the contravention is constituted by conduct

that is the same, or substantially the same, as the

conduct alleged to constitute the contravention in the

relevant infringement notice;

(iv) any other matter the relevant chief executive considers

relevant.

Notice of withdrawal of infringement notice

(4) Notice of the withdrawal of the infringement notice must be given

to the person. The withdrawal notice must state:

(a) the person's name and address; and

(b) the day the infringement notice was given; and

(d) that the infringement notice is withdrawn; and

(e) that proceedings seeking a pecuniary penalty order may be

brought in relation to the alleged contravention.

Refund of amount if infringement notice withdrawn

(5) If:

(a) the relevant chief executive withdraws the infringement

notice; and

(b) the person has already paid the amount stated in the notice;

the Commonwealth must refund to the person an amount equal to

the amount paid.

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

35 Paragraphs 163(2)(a) and (b)

After "this Act,", insert "the Basin Plan,".

36 Section 165 (heading)

Omit "

Authority

", substitute "

Inspector-General

37 Subsection 165(1)

Omit "the Authority", substitute "the Inspector-General".

38 Subsection 165(2)

Omit "The Authority", substitute "The Inspector-General".

39 At the end of subsection 165(2)

Add:

Note:

The Inspector-General's power to direct a person under this subsection

is limited as provided by subsection (6).

40 Subsection 165(3)

Omit "the Authority", substitute "the Inspector-General".

41 Subsection 165(5)

Omit "The Authority", substitute "The Inspector-General".

42 At the end of section 165

Add:

Application of this section

(6) If the Inspector-General is satisfied that a person:

(a) has engaged in, is engaging in or is likely to engage in

conduct referred to in paragraph (1)(b); or

(b) has omitted, is omitting or is likely to omit to perform an act

and the omission is covered by paragraph (1)(c);

the Inspector-General may direct the person under subsection (2)

only if:

agreement; or

(d) the person is a constitutional corporation; or

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(e) the direction relates to conduct or an omission that has

affected, is affecting or is likely to affect the activities of a

constitutional corporation; or

(f) the direction relates to conduct or an omission that took

place, is taking place or is likely to take place in the course of

trade or commerce:

(i) with other countries; or

(ii) among the States; or

(iii) between a State and a Territory; or

(g) the direction relates to conduct or an omission that took

place, is taking place or is likely to take place in a Territory;

(h) the direction relates to conduct that took place, is taking place

or is likely to take place using a postal, telegraphic,

telephonic or other like service (within the meaning of

paragraph 51(v) of the Constitution); or

(i) the person is an agency of the Commonwealth.

43 Section 166

Repeal the section, substitute:

166 Failing to comply with enforcement notice

(1) A person contravenes this subsection if:

(a) the person has been given a notice under subsection 165(2);

and

(b) the person fails to comply with the direction in the notice.

Strict liability offence

(2) A person commits an offence of strict liability if the person

contravenes subsection (1).

Note:

See section 170A in relation to the physical elements of the offence.

Penalty: 30 penalty units.

(3) A person who contravenes subsection (1) commits a separate

offence in respect of each day (including a day the person is

convicted of the offence or any later day) during which the

contravention continues.

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes

subsection (1).

Note:

In proceedings against a person for a contravention of a civil penalty

provision, it is generally not necessary to prove the person's state of

mind (see section 154C).

Civil penalty:

600 penalty units.

(5) A person who contravenes subsection (1) commits a separate

contravention of that subsection in respect of each day (including a

day a relevant pecuniary penalty order is made against the person

or any subsequent day) during which the contravention continues.

44 Section 167

Omit "The Authority", substitute "The Inspector-General".

45 After Division 7 of Part 8

Insert:

Division 7A--Public warning notices

167A Inspector-General may issue public warning notice

(1) The Inspector-General may issue to the public a written notice

containing a warning about the conduct of a person if:

(a) the Inspector-General reasonably suspects that the conduct

may constitute a contravention of:

(i) section 34, 35, 58 or 59; or

(ii) a provision of Division 3A of Part 2; and

(b) the Inspector-General is satisfied that one or more of the

following has occurred, is occurring or is likely to occur, as a

result of the conduct:

(i) injury or damage to human beings;

(ii) damage to property;

(iii) harm to, or loss of, Basin water resources; and

interest to issue the notice.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

Note 1:

The power conferred by this subsection may be delegated only to an

SES employee or an acting SES employee (see subsection 215W(3)).

Note 2:

No civil proceeding lies against the Inspector-General for loss,

damage or injury of any kind suffered by another person as a result of

the issue, in good faith, of a notice under this subsection (see

section 215X).

(2) A notice issued under subsection (1) is not a legislative instrument.

(3) In this section:

conduct

includes an act or omission.

46 Paragraph 168(1)(d)

Omit "all".

47 Subsection 168(3)

Omit "contravened by the body corporate", substitute "referred to in

paragraph (1)(a)".

48 Subsection 169(1)

Omit "all reasonable", substitute "reasonable".

49 Subparagraphs 169(1)(a)(i) and (iii)

After "this Act,", insert "the Basin Plan,".

50 After subparagraph 169(1)(b)(i)

Insert:

(ia) the Basin Plan; or

51 Subsection 170(1)

After "for the purposes of this Act", insert "and each legislative

instrument made under this Act".

52 Subsection 170(2)

After "for the purposes of this Act", insert "or any legislative instrument

made under this Act".

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

53 Subsection 170(3)

After "for the purposes of this Act", insert "and each legislative

instrument made under this Act".

54 Subsection 170(4)

After "for the purposes of this Act", insert "or any legislative instrument

made under this Act".

55 Paragraphs 170(5)(a) and (c)

Omit "this Act, the regulations, the water charge rules and the water

market rules", substitute "this Act and each legislative instrument made

under this Act".

56 At the end of Part 8

Add:

Division 10--General rules about offences and civil penalty

provisions

170A Physical elements of offences

(1) This section applies if a provision of this Act provides that a person

contravening another provision of this Act (the

conduct provision

)

commits an offence.

(2) For the purposes of applying Chapter 2 of the

Criminal Code

to the

offence, the physical elements of the offence are set out in the

conduct provision.

Note:

Chapter 2 of the

Criminal Code

sets out general principles of criminal

responsibility.

170B Contravening an offence provision or a civil penalty provision

(1) This section applies if a provision of this Act provides that a person

contravening another provision of this Act (the

conduct provision

)

commits an offence or is liable to a civil penalty.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(2) For the purposes of this Act, a reference to a contravention of an

offence provision or a civil penalty provision includes a reference

to a contravention of the conduct provision.

57 Paragraphs 175(2)(c) and (d)

Repeal the paragraphs.

58 Subsection 200(3)

Omit "section 238 or Part 8", substitute "section 222D".

59 Paragraph 210(1)(i)

Omit "(otherwise than under Part 8)".

60 Section 215 (heading)

Repeal the heading, substitute:

215 Protection of confidential information

61 Subsection 215(1)

Omit "all".

62 Subsection 215(2)

Omit "Disclosing", substitute "For the purposes of subsection (1), the

disclosure of".

63 Subsection 215(4)

Omit "Disclosing", substitute "For the purposes of subsection (1), the

disclosure of".

64 Paragraph 215(4)(b)

Repeal the paragraph, substitute:

(b) the Secretary of the Department, or an officer or employee in

the Department, for the purpose of advising the Minister.

65 Subsection 215(6)

Omit "this section", substitute "subsection (1)".

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

66 At the end of Division 6 of Part 9

Add:

215A Disclosure of information to the Minister or the Secretary of

the Department

(1) This section applies to information obtained in, or in connection

with, the performance of the Authority's functions or the exercise

of the Authority's powers.

Authorisation to disclose information to Minister or the Secretary

of Department

(2) The Authority may disclose the information to:

(a) the Minister; or

(b) the Secretary of the Department, or an officer or employee in

the Department, for the purpose of advising the Minister.

Note 1:

This subsection constitutes an authorisation for the purposes of the

Privacy Act 1988

and other laws (including the common law).

Note 2:

The Authority may also disclose information to the Inspector-General

for the purposes of facilitating the performance of the

Inspector-General's functions or the exercise of the

Inspector-General's powers (see section 215UC).

67 After Part 9

Insert:

Part 9A--Inspector-General of Water Compliance

(administrative provisions)

Division 1--Inspector-General of Water Compliance:

establishment and functions

215B Inspector-General of Water Compliance

There is to be an Inspector-General of Water Compliance.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

215C Functions of the Inspector-General

(1) The Inspector-General has the following functions:

(a) to monitor and provide independent oversight of the

performance of functions and exercise of powers by agencies

of the Commonwealth under the following:

(i) this Act (other than Parts 1A, 2A, 4, 4A, 10A and 11A);

(ii) regulations and other legislative instruments made under

this Act (other than regulations or other legislative

instruments made for the purposes of Part 1A, 2A, 4,

4A, 10A or 11A);

(iii) the Basin Plan;

(iv) water resource plans;

(b) to monitor and provide independent oversight of the

performance by agencies of the Basin States of their

obligations in relation to the management of Basin water

resources under the following:

(i) this Act (other than Parts 1A, 2A, 4, 4A, 10A and 11A);

(ii) regulations and other legislative instruments made under

this Act (other than regulations or other legislative

instruments made for the purposes of Part 1A, 2A, 4,

4A, 10A or 11A);

(iii) the Basin Plan;

(iv) water resource plans;

implementation by agencies of the Commonwealth and

agencies of the Basin States of the commitments in the

agreements referred to in subsection (3);

(d) to engage with the Australian community in relation to the

management of Basin water resources;

(e) functions conferred on the Inspector-General by:

(i) Part 8 (enforcement); and

(ii) Part 10AA (special powers); and

(iii) Part 10AB (inquiry powers);

(f) any other functions conferred on the Inspector-General by

this Act, the Basin Plan or any other legislative instrument

made under this Act;

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(g) to do anything incidental to, or conducive to, the performance

of the above functions.

(2) The Inspector-General's functions under subsection (1) do not

include monitoring and providing independent oversight of the

performance of functions or exercise of powers:

(a) by the ACCC in giving advice:

(i) for the purposes of subsection 42(2) or 46(2) (relating to

the water trading rules); or

(ii) under subsection 212(2) (relating to fees the Authority

may charge for its services); or

(b) by the Productivity Commission in conducting an inquiry

into a matter referred to the Productivity Commission under

section 87 or 88.

Basin agreements

(3) For the purposes of paragraph (1)(c), the agreements are the

following agreements (including any amendments of those

agreements):

(a) the Murray-Darling Basin Compliance Compact entered into

in June 2018;

(b) the Intergovernmental Agreement on Implementing Water

Reform in the Murray-Darling Basin entered into in June

2013;

Reform in the Murray-Darling Basin entered into in February

2014;

(d) the Project Agreement for Murray-Darling Basin Water

Infrastructure, New South Wales-Led Efficiency Projects

entered into in August 2019;

(e) the Project Agreement for Murray-Darling Basin Water

Infrastructure, South Australia-Led Efficiency Projects

entered into in March 2019;

(f) the Project Agreement for Murray-Darling Basin Water

Infrastructure, Australian Capital Territory-Led Efficiency

Projects entered into in May 2019;

(g) the Murray-Darling Basin Plan 2012 Implementation

Agreement entered into in August 2013;

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(h) the Intergovernmental Agreement on Federal Financial

Relations entered into in July 2011, to the extent that it

relates to:

(i) the National Partnership Agreement on Implementing

Water Reform in the Murray-Darling Basin entered into

in February 2014; and

(ii) project agreements relating to Basin water resources;

(i) the Intergovernmental Agreement on a National Water

Initiative entered into in June 2004, to the extent that it

relates to Basin water resources;

(j) any other agreement that:

(i) is entered into by the Authority, or the Commonwealth

Environmental Water Holder, and one or more Basin

States; and

(ii) is prescribed by the regulations for the purposes of this

paragraph;

(k) any other agreement that:

(i) is entered into by the Commonwealth and one or more

Basin States; and

(ii) is prescribed by the regulations for the purposes of this

paragraph.

Note 1:

The Compact referred to in paragraph (3)(a) and the Agreement

referred to in paragraph (3)(g) could in 2021 be viewed on the

Authority's website (http://www.mdba.gov.au).

Note 2:

The Agreements referred to in paragraphs (3)(b) to (f) and (i) could in

2021 be viewed on the Productivity Commission's website

(http://www.pc.gov.au).

Note 3:

The Agreement referred to in paragraph (3)(h) could in 2021 be

viewed on the Federal Financial Relations website

(http://www.federalfinancialrelations.gov.au).

215D Minister may give directions to Inspector-General

(1) The Minister may give directions, which must be consistent with

the objects of this Act, to the Inspector-General about the

performance of the Inspector-General's functions.

Note:

See also subsection 239AA(2) which provides for the Minister to

direct the Inspector-General to conduct an inquiry into a particular

matter.

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(2) However, the Inspector-General is not subject to direction under

subsection (1) in relation to any of the following:

(a) the exercise of a power under Division 3B of Part 2 (audits);

(b) the performance of a function that is conferred by

section 86K (enforcement of Part 2A);

(d) the monitoring of compliance with, or the investigation of

possible contraventions of, a designated compliance

provision;

(e) the exercise of a power under Division 3 of Part 10AA

(information gathering).

(3) The Inspector-General must comply with a direction under

subsection (1).

(4) A direction given under subsection (1) is not a legislative

instrument.

Division 2--Annual work plans

215E Inspector-General must prepare annual work plan

(1) The Inspector-General must prepare a work plan, in writing, for

each financial year.

(2) The work plan for a financial year must set out the key outcomes

and priorities for the Inspector-General for the financial year.

(3) A work plan for a financial year is not a legislative instrument.

(4) The Inspector-General must publish the work plan for a financial

year on the Inspector-General's website or the Department's

website as soon as practicable after it has been finalised.

215F Review of annual work plan

(1) The Inspector-General must review the work plan for the

Inspector-General for a financial year at least once during the

financial year.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(2) The review must consider whether the work plan continues to be

appropriate having regard to:

(a) the nature of the functions to be performed by the

Inspector-General during the financial year; and

(b) the resources available to perform those functions.

215G Variation of annual work plan

(1) The Inspector-General may vary the work plan for the

Inspector-General for a financial year:

(a) to take account of the findings of a review of the work plan

conducted under section 215F; or

(b) if the Inspector-General considers the variation is necessary

for any other reason.

(2) The Inspector-General must publish the work plan, as varied, on

the Inspector-General's website or the Department's website as

soon as practicable after the work plan has been varied.

(3) A varied work plan is not a legislative instrument.

Division 3--Administrative provisions

215J Appointment

(1) The Inspector-General is to be appointed by the Governor-General

by written instrument.

Note:

The Inspector-General may be reappointed, subject to

subsection 215K(2) (see section 33AA of the

Acts Interpretation Act

1901

(2) The Inspector-General is to be appointed on a full-time basis.

(3) To be eligible for appointment as the Inspector-General, an

individual must, at the time of appointment:

(a) have a high level of expertise in one or more fields relevant

to the Inspector-General's functions; and

(b) not be a member of the governing body of a relevant interest

group.

Note:

For

member of the governing body of a relevant interest group

, see

subsection 178(4).

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

215JA Acting appointments

The Minister may, by written instrument, appoint a person to act as

the Inspector-General:

(a) during a vacancy in the office of Inspector-General (whether

or not an appointment has previously been made to the

office); or

(b) during any period, or during all periods, when the

Inspector-General:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

Note:

For rules that apply to acting appointments, see sections 33AB and

33A of the

Acts Interpretation Act 1901

215K Term of office

(1) The Inspector-General holds office for the period specified in the

instrument of appointment. The period must not exceed 4 years.

(2) The Inspector-General must not hold office for a total of more than

8 years.

215KA Application of finance law

For the purposes of the finance law (within the meaning of the

Public Governance, Performance and Accountability Act 2013

the Inspector-General is an official of the Department.

215L Remuneration

(1) The Inspector-General is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Tribunal is in operation, the

Inspector-General is to be paid the remuneration that is determined

under subsection (5).

(2) The Inspector-General is to be paid the allowances that are

determined under subsection (5).

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(3) Subsections 7(9) and (13) of the

Remuneration Tribunal Act 1973

do not apply in relation to the office of the Inspector-General of

Water Compliance.

Note:

The effect of this subsection is that remuneration or allowances of the

Inspector-General will be paid out of money appropriated by an Act

other than the

Remuneration Tribunal Act 1973

(4) This section has effect subject to the

Remuneration Tribunal Act

1973

(except as provided by subsection (3)).

(5) The Minister may, by legislative instrument, determine:

(a) remuneration for the purposes of subsection (1); and

(b) allowances for the purposes of subsection (2).

215LA Leave of absence for Inspector-General

(1) The Inspector-General has the recreation leave entitlements that are

determined by the Remuneration Tribunal.

(2) The Minister may grant the Inspector-General leave of absence,

other than recreation leave, on the terms and conditions as to

remuneration or otherwise that the Minister determines.

215M Engaging in other paid work

The Inspector-General must not engage in paid work outside the

duties of the Inspector-General's office without the Minister's

approval.

215N Disclosure of interests

(1) The Inspector-General must give written notice to the Minister of

all interests, pecuniary or otherwise, that the Inspector-General has

or acquires and that could conflict with the proper performance of

the Inspector-General's functions.

(2) Subsection (1) applies in addition to any rules made for the

purposes of section 29 of the

Public Governance, Performance and

Accountability Act 2013

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

215P Other terms and conditions

The Inspector-General holds office on the terms and conditions (if

any) in relation to matters not covered by this Act that are

determined by the Minister.

215Q Resignation

(1) The Inspector-General may resign the Inspector-General's

appointment by giving the Governor-General a written resignation.

(2) The resignation takes effect on the day it is received by the

Governor-General or, if a later day is specified in the resignation,

on that later day.

215R Termination of appointment

(1) The Governor-General may terminate the appointment of the

Inspector-General:

(a) for misbehaviour; or

(b) if the Inspector-General is unable to perform the duties of the

Inspector-General's office because of physical or mental

incapacity.

(2) The Governor-General may terminate the appointment of the

Inspector-General if:

(a) the Inspector-General:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with the Inspector-General's creditors; or

(iv) makes an assignment of the Inspector-General's

remuneration for the benefit of the Inspector-General's

creditors; or

(b) the Inspector-General is absent, except on leave of absence,

for 14 consecutive days or for 28 days in any 12 months; or

approval, in paid work outside the duties of the

Inspector-General's office (see section 215M); or

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(d) the Inspector-General fails, without reasonable excuse, to

comply with subsection 215N(1) (which deals with the duty

to disclose interests, pecuniary or otherwise, that the

Inspector-General has or acquires and that could conflict with

the proper performance of the Inspector-General's functions);

(e) the Inspector-General fails, without reasonable excuse, to

comply with section 29 of the

Public Governance,

Performance and Accountability Act 2013

(which deals with

the duty to disclose interests) or rules made for the purposes

of that section.

215S Staff and persons assisting the Inspector-General

(1) The staff assisting the Inspector-General are to be persons engaged

under the

Public Service Act 1999

who are made available by the

Secretary.

(2) The Inspector-General may also be assisted:

(a) by employees of Agencies (within the meaning of the

Public

Service Act 1999

); or

(b) by officers and employees of a State; or

Commonwealth or a State;

whose services are made available to the Inspector-General in

connection with the performance of any of the Inspector-General's

functions.

Division 4--Advisory panels

215T Advisory panels

(1) The Inspector-General may, by writing, establish advisory panels

to assist the Inspector-General in performing any of the

Inspector-General's functions.

Note:

For variation and revocation, see subsection 33(3) of the

Acts

Interpretation Act 1901

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(2) An advisory panel established under subsection (1) consists of such

individuals who are appointed by the Inspector-General under

subsection 215TA(1).

(3) An instrument made under subsection (1) is not a legislative

instrument.

215TA Appointment of advisory panels

Appointment of members

(1) Each member of an advisory panel established under

subsection 215T(1) is to be appointed by the Inspector-General by

written instrument.

Note:

An appointee may be reappointed: see section 33AA of the

Acts

Interpretation Act 1901

Terms and conditions of appointment

(2) An instrument of appointment may determine the terms and

conditions of the appointment, including remuneration and

allowances.

Termination of appointment

(3) The Inspector-General may, in writing, terminate the appointment

of a member of an advisory panel at any time.

Resignation by member

(4) A member of an advisory panel may resign the member's

appointment by giving the Inspector-General a written resignation.

The resignation takes effect on the day it is received by the

Inspector-General or, if a later day is specified in the resignation,

on that later day.

215TB Procedural matters

(1) The Inspector-General may give an advisory panel established

under subsection 215T(1) written directions (procedural directions)

as to:

(a) the way in which the panel is to carry out its functions; and

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(b) procedures to be followed in relation to meetings.

Note:

For variation and revocation, see subsection 33(3) of the

Acts

Interpretation Act 1901

(2) Before giving a procedural direction about a matter to an advisory

panel, the Inspector-General must have regard to any

recommendations of that panel about the matter.

(3) A procedural direction given under subsection (1) is not a

legislative instrument.

Division 5--Confidentiality

215U Protection of confidential information

Inspector-General must protect confidential information

(1) The Inspector-General must take reasonable measures to protect

from unauthorised use or disclosure information:

(a) that is confidential information; and

(b) that is given to the Inspector-General in, or in connection

with, the performance of the Inspector-General's functions or

the exercise of the Inspector-General's powers.

Authorised uses and disclosures

(2) For the purposes of subsection (1), the disclosure of summaries of

information or statistics derived from information is authorised use

and disclosure of the information, provided that information

relating to any particular person cannot be found out from those

summaries or statistics.

(3) For the purposes of subsection (1), the disclosure of information as

required or permitted by a law of the Commonwealth or a

prescribed law of a State is taken to be authorised use and

disclosure of the information.

(4) For the purposes of subsection (1), the disclosure of information to

either of the following is authorised use and disclosure of the

information:

(a) the Minister;

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(b) the Secretary of the Department, or an officer or employee in

the Department, for the purpose of advising the Minister.

(5) For the purposes of subsection (1), the disclosure of information by

a person for the purpose of:

(a) performing functions or exercising powers as:

(i) the Inspector-General; or

(ii) a member of the Inspector-General's staff; or

(iii) a delegate of the Inspector-General; or

(iv) an authorised compliance officer; or

(v) a person who is authorised to perform a function or

exercise a power of, or on behalf of, the

Inspector-General; or

(b) the performance of functions or exercise of powers by the

person by way of assisting the Inspector-General or a

delegate of the Inspector-General;

is taken to be authorised use and disclosure of the information.

(6) Regulations made for the purposes of this subsection may specify

uses of information and disclosures of information that are

authorised uses and authorised disclosures for the purposes of

subsection (1).

(7) Nothing in subsection (2), (3), (4) or (5), or in regulations made for

the purposes of subsection (6), limits:

(a) anything else in any of those subsections or those regulations;

(b) what may otherwise constitute, for the purposes of

subsection (1), authorised use or disclosure of information.

215UA Disclosure of information to the Authority, the Minister or

the Secretary of the Department

(1) This section applies to information obtained in, or in connection

with, the performance of the Inspector-General's functions or the

exercise of the Inspector-General's powers.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

Authorisation to disclose information to the Authority

(2) The Inspector-General may disclose the information to the

Authority for the purposes of, or in connection with, the

performance of the functions or the exercise of the powers of the

Authority.

Note:

This subsection constitutes an authorisation for the purposes of the

Privacy Act 1988

and other laws (including the common law).

Authorisation to disclose information to the Minister or the

Secretary of the Department

(3) The Inspector-General may disclose the information to:

(a) the Minister; or

(b) the Secretary of the Department, or an officer or employee in

the Department, for the purpose of advising the Minister.

Note:

This subsection constitutes an authorisation for the purposes of the

Privacy Act 1988

and other laws (including the common law).

Disclosure of confidential information

(4) Disclosure of confidential information that is permitted under

subsection (2) is authorised use and disclosure of the information

for the purposes of subsection 215U(1).

215UB Disclosure for purposes of enforcement or administration of

Commonwealth or State laws

(1) This section applies to information obtained in, or in connection

with, the performance of the Inspector-General's functions or the

exercise of the Inspector-General's powers.

Disclosure to enforcement bodies

(2) The Inspector-General may disclose the information to an

enforcement body if the Inspector-General reasonably believes that

the disclosure is reasonably necessary for, or directly related to,

one or more enforcement related activities of the enforcement

body.

Note:

This subsection constitutes an authorisation for the purposes of the

Privacy Act 1988

and other laws (including the common law).

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

Disclosure to Commonwealth or State agencies

(3) The Inspector-General may disclose the information to an agency

of the Commonwealth or an agency of a State for the purpose of

the administration of a law of the Commonwealth or a State that

applies to the management of Basin water resources.

Note:

This subsection constitutes an authorisation for the purposes of the

Privacy Act 1988

and other laws (including the common law).

Disclosure of confidential information

(4) Disclosure of confidential information that is permitted under

subsection (2) or (3) is authorised use and disclosure of the

information for the purposes of subsection 215U(1).

215UC Commonwealth agency may disclose information to the

Inspector-General

An agency of the Commonwealth, or a member of the staff of an

agency of the Commonwealth, may disclose information to the

Inspector-General for the purposes of facilitating the performance

of the Inspector-General's functions or the exercise of the

Inspector-General's powers.

Note:

This section constitutes an authorisation for the purposes of the

Privacy Act 1988

and other laws (including the common law).

215UD Information disclosed must not identify individual who

wishes to remain anonymous

If:

(a) an individual voluntarily gives information to the

Inspector-General; and

(b) the individual requests that the individual remain anonymous;

then information disclosed under this Division must not include

material identifying the individual or material that could be used to

identify the individual.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

Division 6--Guidelines and standards

215V Inspector-General may issue guidelines

(1) The Inspector-General may, in writing, issue guidelines relating to

the performance by agencies of the Commonwealth and agencies

of the Basin States of their obligations (

water management

obligations

) in relation to the management of Basin water

resources under the following:

(a) this Act (other than Parts 1A, 2A, 4, 4A, 10A and 11A);

(b) regulations and other legislative instruments made under this

Act (other than regulations or other legislative instruments

made for the purposes of Part 1A, 2A, 4, 4A, 10A or 11A);

(d) water resource plans.

(2) Without limiting subsection (1), guidelines issued under that

subsection may relate to any of the following:

(a) reporting compliance activities carried out by agencies of the

Basin States relating to their water management obligations;

(b) assessing the effectiveness of the regulatory frameworks in

the Basin States for managing their water management

obligations;

(3) Guidelines issued under subsection (1) are not a legislative

instrument.

(4) The Inspector-General must publish guidelines issued under

subsection (1) on the Inspector-General's website or the

Department's website.

(5) In performing its water management obligations, an agency of the

Commonwealth or an agency of a Basin State must have regard to

guidelines (if any) issued under subsection (1).

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

215VA Inspector-General may issue standards relating to

measuring water taken from Basin water resources and

data related to water trading

(1) The Inspector-General may, by legislative instrument, issue

standards relating to:

(a) measuring water taken from Basin water resources in water

resource plan areas; and

(b) the collection, storage, transmission and online publication of

Basin water market data and related information by providers

of water trade services.

Note:

Examples of water trade services are advisory services, information

services, matching services, clearing services, settlement services and

registration services.

(2) In performing its obligations in relation to the management of

Basin water resources, an agency of the Commonwealth or an

agency of a Basin State must have regard to the standards (if any)

issued under subsection (1).

215VB Consultation in preparing guidelines or standards

(1) The Inspector-General must consult the Basin States, and have

regard to any submissions made by the Basin States in connection

with the consultation, in preparing guidelines under section 215V

or standards under section 215VA.

(2) In preparing guidelines under section 215V or standards under

section 215VA, the Inspector-General may undertake such other

consultation as the Inspector-General considers appropriate.

Division 7--Miscellaneous

215W Delegation

(1) The Inspector-General may, in writing and subject to

subsections (2), (3) and (4), delegate all or any of the

Inspector-General's functions and powers under this Act to an APS

employee in the Department.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(2) The Inspector-General must not delegate the Inspector-General's

functions and powers under the following provisions:

(a) Division 3B of Part 2 (audits);

(b) Division 2 of Part 9A (other than subsections 215E(4) and

215G(2)) (annual work plans);

(d) Division 6 of Part 9A (other than subsection 215V(4))

(guidelines);

(e) section 215Y (annual report);

(f) section 239AA (conducting an inquiry);

(g) subsection 239AB(1) (determining terms of reference for an

inquiry);

(h) subsection 239AC(2) (requiring a person to give

information);

(i) subsection 239AD(2) (requiring a person to appear to answer

questions);

(j) section 239AE (reporting on an inquiry).

(3) The Inspector-General may delegate the Inspector-General's

functions or powers under the following provisions only to an SES

employee or an acting SES employee:

(a) a provision in Part 8 (enforcement);

(b) section 215UA (disclosing information to the Authority,

Minister or Secretary);

(d) section 233G (applying to retain seized thing);

(e) section 233H (disposing of seized thing);

(f) section 238 (requiring information to be produced);

(g) subsection 239AD(8) (giving a written record of answers).

(4) The Inspector-General may delegate the Inspector-General's

functions or powers under the following provisions only to an SES

employee or an acting SES employee, or an APS employee who

holds, or performs the duties of, an Executive Level 2, or

equivalent, position in the Department:

(a) subsection 73E(1) (giving notice to the appropriate agency of

a State of the intention to take action in relation to an alleged

contravention of section 73A or 73B);

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(b) subsection 215UB(2) (disclosing information to an

enforcement body);

the Commonwealth or an agency of a State).

Note:

The expressions

APS employee

SES employee

and

acting SES

employee

are defined in section 2B of the

Acts Interpretation Act

1901

(5) In performing any functions or exercising any powers under a

delegation under subsection (1), the delegate must comply with any

written directions of the Inspector-General.

215X Protection from liability

(1) This section applies to the following persons (

protected persons

(a) the Inspector-General;

(b) an authorised compliance officer;

(d) a person who is authorised to perform a function or exercise a

power of, or on behalf of, the Inspector-General;

(e) a person assisting the Inspector-General or a person referred

to in paragraph (c) or (d) in performing the

Inspector-General's functions or exercising the

Inspector-General's powers.

(2) A protected person is not liable to civil proceedings for loss,

damage or injury of any kind suffered by another person as a result

of anything done by the protected person in good faith in the

performance or purported performance of a function or duty

conferred by this Act, or the exercise or purported exercise of a

power conferred by this Act.

215Y Annual report

(1) The Inspector-General must, as soon as practicable after the end of

each financial year, prepare a report (an

annual report

) on the

activities of the Inspector-General during the financial year.

Note:

Certain material must not be included in an annual report (see

section 239AG).

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(2) As soon as practicable after preparing an annual report, the

Inspector-General must:

(a) give the report to the Minister; and

(b) publish the report on the Inspector-General's website or the

Department's website.

Note:

Section 34C of the

Acts Interpretation Act 1901

applies to a report

given to the Minister under this subsection.

215Z Review of the role of the Inspector-General

(1) The Minister must cause a review of the role of the

Inspector-General to be conducted during the financial year

beginning on 1 July 2025.

(2) The terms of reference for the review are to be determined by the

Minister in consultation with the Basin States.

(3) The review must be undertaken in consultation with the Basin

States.

(4) The Minister must cause to be prepared a written report of the

review.

(5) The Minister must cause a copy of the report of the review to be

tabled in each House of the Parliament within 15 sitting days of

that House after its receipt by the Minister.

68 Part 10 (after the heading)

Insert:

Note:

Section 9 clarifies the constitutional basis for this Part.

69 Division 1 of Part 10

Repeal the Division.

70 Subsection 218(1)

Omit "recent photograph", insert "photograph that is no more than 5

years old".

71 Subsection 218(2)

After "offence", insert "of strict liability".

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

72 Paragraph 218(2)(c)

Repeal the paragraph, substitute:

within 14 days after ceasing to be an authorised officer.

73 After subsection 218(2)

Insert:

(2A) Subsection (2) does not apply if the identity card was lost or

destroyed.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection: see subsection 13.3(3) of the

Criminal Code

74 Subdivision B of Division 2 of Part 10 (heading)

Omit "

other than for compliance purposes

75 Subsection 219(1)

Omit "(1)".

76 Subsection 219(2)

Repeal the subsection (including the note).

77 Section 222 (note)

Repeal the note, substitute:

Note:

A person who obstructs, hinders, intimidates or resists an authorised

officer in the performance of the authorised officer's functions or

duties, or the exercise of the officer's powers, under this Act may

commit an offence (see section 149.1 of the

Criminal Code

) and may

be liable to a civil penalty (see section 222C of this Act).

78 After Subdivision B of Division 2 of Part 10

Insert:

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

Subdivision C--Other matters

222A Privilege against self-incrimination and legal professional

privilege not abrogated

Self-incrimination

(1) Nothing in this Division affects the right of a person to refuse to

answer a question, give information, or produce a document, on the

ground that the answer to the question, the information or the

production of the document might tend to incriminate the person or

make the person liable to a penalty.

Legal professional privilege

(2) Nothing in this Division affects the right of a person to refuse to

answer a question, give information, or produce a document, on the

ground that:

(a) the answer to the question or the information would be

privileged from being given on the ground of legal

professional privilege; or

(b) the document would be privileged from being produced on

the ground of legal professional privilege.

222B Occupier entitled to be present during entry

(1) If:

(a) an authorised officer is entering premises under Subdivision

B; and

(b) an occupier of the premises, or another person who

apparently represents the occupier, is present at the premises;

the occupier or other person is entitled to observe the activities of

the authorised officer on the premises.

(2) The right to observe the authorised officer's activities ceases if the

occupier or other person impedes those activities.

(3) This section does not prevent the authorised officer, or the

authorised officers, from carrying out activities at 2 or more areas

of the premises at the same time.

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

222C Obstructing authorised officers

Civil penalty provision

A person is liable to a civil penalty if the person obstructs, hinders,

intimidates or resists an authorised officer in the performance of

the officer's functions or duties, or the exercise of the officer's

powers, under this Act.

Note 1:

In proceedings against a person for a contravention of a civil penalty

provision, it is generally not necessary to prove the person's state of

mind (see section 154C).

Note 2:

A person who is liable to a civil penalty under this section may also

commit an offence against section 149.1 of the

Criminal Code

Civil penalty:

100 penalty units.

Division 3--Information gathering

222D Power to require information

(1) This section applies to a person if the Authority has reason to

believe that information (the

compellable information

) relating to

any of the following matters:

(a) the preparation and implementation of the Basin Plan;

(b) a matter:

(i) relevant to the performance of the Authority's

functions; and

(ii) specified in regulations made for the purposes of this

paragraph;

is in the person's possession, custody or control (whether held

electronically or in any other form).

(2) The Authority may, in writing, require the person to give specified

compellable information to the Authority:

(a) within a specified period of time (which must not be less than

14 days after the requirement is made); and

(b) in a specified form or manner.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

Fault-based offence

(3) A person commits an offence if:

(a) the person is subject to a requirement under subsection (2);

and

(b) the person fails to comply with the requirement.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

Civil penalty provisions

(4) A person is liable to a civil penalty if:

(a) the person is subject to a requirement under subsection (2);

and

(b) the person fails to comply with the requirement.

Note:

In proceedings against a person for a contravention of a civil penalty

provision, it is generally not necessary to prove the person's state of

mind (see section 154C).

Civil penalty:

100 penalty units.

(5) A person is liable to a civil penalty if:

(a) the person is subject to a requirement under subsection (2);

and

(b) the person gives information to the Authority in compliance

or purported compliance with that requirement; and

(i) is false or misleading in a material particular; or

(ii) omits any matter or thing without which the information

is misleading in a material particular.

Note:

A person may commit an offence if the person provides false or

misleading information or documents (see sections 137.1 and 137.2 of

the

Criminal Code

Civil penalty:

100 penalty units.

Exception

(6) Subsection (4) does not apply to the extent that the person has a

reasonable excuse. However, a person does not have a reasonable

excuse merely because the information in question is:

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(a) of a commercial nature; or

(b) subject to an obligation of confidentiality arising from a

commercial relationship; or

Note:

The person bears an evidential burden in relation to the matter in this

subsection (see section 154E of this Act).

222E Prohibitions on disclosure of information do not apply

This Division has effect despite any law of the Commonwealth, a

State or a Territory prohibiting disclosure of the information.

79 Subdivision C of Division 2 of Part 10 (heading)

Repeal the heading.

80 Before section 223

Insert:

Part 10AA--Inspector-General of Water

Compliance (special powers)

Note:

Section 9 clarifies the constitutional basis for this Part.

Division 1--Entry onto land etc.

Subdivision A--Authorised compliance officers

222G Appointment of authorised compliance officers

(1) The Inspector-General may, by writing, appoint one or more

individuals to be authorised compliance officers for the purposes of

exercising the powers of an authorised compliance officer under

this Division.

(2) To be eligible for appointment as an authorised compliance officer,

an individual must:

(a) be any of the following:

(i) an APS employee;

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(ii) an individual whose services are made available to the

Inspector-General under subsection 215S(2);

(iii) an individual who holds an office or position with a

State or an authority of a State;

(iv) an individual whose services have been acquired by the

Inspector-General under a contract; and

(b) have a high level of expertise in one or more fields relevant

to the performance of the duties of an authorised compliance

officer under this Division.

(3) The Inspector-General may appoint an individual mentioned in

subparagraph (2)(a)(iii) to be an authorised compliance officer only

if the relevant State or authority agrees to the appointment.

(4) The Inspector-General must not appoint an individual mentioned in

subparagraph (2)(a)(iv) to be an authorised compliance officer

unless the Inspector-General is satisfied that the individual is fit

and proper to be an authorised compliance officer.

(5) In deciding, for the purposes of subsection (4), whether a person is

fit and proper to be an authorised compliance officer, the

Inspector-General:

(a) must have regard to the matters prescribed by the regulations;

and

(b) may also have regard to any other matter the

Inspector-General considers appropriate.

(6) Applications may be made to the Administrative Appeals Tribunal

for review of a decision of the Inspector-General, for the purposes

of subsection (4), that an individual mentioned in

subparagraph (2)(a)(iv) is not fit and proper to be an authorised

compliance officer.

(7) In exercising powers or performing functions as an authorised

compliance officer, an authorised compliance officer must comply

with any written directions of the Inspector-General.

222H Identity cards

(1) The Inspector-General must issue an identity card to an authorised

compliance officer.

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(2) The identity card must:

(a) be in the form approved by the Inspector-General; and

(b) contain a photograph that is no more than 5 years old of the

authorised compliance officer.

(3) A person commits an offence of strict liability if:

(a) the person has been issued with an identity card under

subsection (1); and

(b) the person ceases to be an authorised compliance officer; and

Inspector-General within 14 days after ceasing to be an

authorised compliance officer.

Penalty: 1 penalty unit.

(4) Subsection (3) does not apply if the identity card was lost or

destroyed.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection: see subsection 13.3(3) of the

Criminal Code

(5) An authorised compliance officer must carry the identity card at all

times when exercising powers or performing functions as an

authorised compliance officer.

Subdivision B--Powers to enter land etc. for compliance

purposes

81 Subsection 223(1)

Repeal the subsection, substitute:

(1) An authorised compliance officer may enter any premises and

exercise any or all of the powers described in subsection (2) for

either or both of the following purposes:

(a) determining whether a designated compliance provision has

been, or is being, complied with;

(b) determining whether information given in compliance, or

purported compliance, with a designated compliance

provision is correct.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

82 Subsection 223(2)

Omit "authorised officer's", substitute "authorised compliance

officer's".

83 Paragraph 223(2)(c)

Repeal the paragraph, substitute:

the premises;

84 Subsection 223(3)

Omit "authorised officer", substitute "authorised compliance officer".

85 Paragraph 223(3)(b)

Omit "a warrant under section 225", substitute "a monitoring warrant".

86 After section 223

Insert:

223A Securing evidence of a contravention

(1) An authorised compliance officer who has entered premises under

subsection 223(1) may secure a thing for a period not exceeding 24

hours if:

(a) the thing is found during the exercise of powers on the

premises under subsection 223(2); and

(b) an authorised compliance officer believes on reasonable

grounds that:

(i) a designated compliance provision has been

contravened with respect to the thing; or

(ii) the thing affords evidence of the contravention of a

designated compliance provision; or

(iii) the thing is intended to be used for the purpose of

contravening a designated compliance provision; or

(iv) the thing affords evidence that information given in

compliance, or purported compliance, with a designated

compliance provision is not correct; and

grounds that:

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(i) it is necessary to secure the thing in order to prevent it

from being concealed, lost or destroyed before a warrant

to seize the thing is obtained; and

(ii) it is necessary to secure the thing without a warrant

because the circumstances are serious and urgent.

The thing may be secured by locking it up, placing a guard or any

other means.

Extensions

(2) The authorised compliance officer may apply to a magistrate for an

extension of the 24-hour period if the authorised compliance

officer believes on reasonable grounds that the thing needs to be

secured for more than that period.

(3) Before making the application, the authorised compliance officer

must give notice to the occupier of the premises, or another person

who apparently represents the occupier, of the authorised

compliance officer's intention to apply for an extension. The

occupier or other person is entitled to be heard in relation to that

application.

(4) The 24-hour period may be extended more than once.

Note:

For the process by which a magistrate may extend the period, see

section 232A.

223B Asking questions and seeking production of documents

Application

(1) This section applies if an authorised compliance officer enters

premises for the purposes of determining whether:

(a) a designated compliance provision has been, or is being,

complied with; or

(b) information given in compliance, or purported compliance,

with a designated compliance provision is correct.

Entry with consent

(2) If the entry is authorised because the occupier of the premises

consented to the entry, the authorised compliance officer may ask

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

the occupier to answer any questions, and produce any document,

relating to:

(a) the operation of the designated compliance provision; or

(b) the information.

Entry under a monitoring warrant

(3) If the entry is authorised by a monitoring warrant, the authorised

compliance officer may require any person on the premises to

answer any questions, and produce any document, relating to:

(a) the operation of the designated compliance provision; or

(b) the information.

(4) A person is not subject to a requirement under subsection (3) if:

(a) the person does not possess the information or document

required; and

(b) the person has taken all reasonable steps available to the

person to obtain the information or document required and

has been unable to obtain it.

Fault-based offence

(5) A person commits an offence if:

(a) the person is subject to a requirement under subsection (3);

and

(b) the person fails to comply with the requirement.

Penalty for contravention of this subsection: 30 penalty units.

87 Subsection 224(1)

Omit "authorised officer" (wherever occurring), substitute "authorised

compliance officer".

88 Subsection 224(1) (note)

Repeal the note, substitute:

Note:

For

evidential material

, see subsection 4(1).

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

89 Subsection 224(2)

Omit "authorised officer's", substitute "authorised compliance

officer's".

90 At the end of subsection 224(2)

Add:

; (d) to seize evidential material of that kind if the authorised

compliance officer finds it on the premises.

91 Paragraph 224(3)(a)

Omit "a warrant under section 226", substitute "an investigation

warrant".

92 Paragraph 224(3)(a)

Omit "authorised officer" (wherever occurring), substitute "authorised

compliance officer".

93 Paragraph 224(3)(b)

Omit "authorised officer believes", substitute "authorised compliance

officer believes".

94 After subparagraph 224(3)(b)(iv)

Insert:

(v) seize the other thing;

95 Paragraph 224(3)(b)

Omit "a provision of Part 2 or regulations made for the purposes of

Part 2", substitute "a designated compliance provision".

96 Subsection 224(3)

Omit "authorise the authorised officer", substitute "authorise the

authorised compliance officer".

97 Subsection 224(4)

Omit "authorised officer", substitute "authorised compliance officer".

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

98 Paragraph 224(4)(b)

Omit "a warrant under section 226", substitute "an investigation

warrant".

99 After section 224

Insert:

224A Asking questions and seeking production of documents

Application

(1) This section applies if an authorised compliance officer enters

premises to search for evidential material.

Entry with consent

(2) If the entry is authorised because the occupier of the premises

consented to the entry, the authorised compliance officer may ask

the occupier to answer any questions, and produce any document,

relating to evidential material.

Entry under an investigation warrant

(3) If the entry is authorised by an investigation warrant, the

authorised compliance officer may require any person on the

premises to answer any questions, and produce any document,

relating to evidential material of the kind specified in the warrant.

(4) A person is not subject to a requirement under subsection (3) if:

(a) the person does not possess the information or document

required; and

(b) the person has taken all reasonable steps available to the

person to obtain the information or document required and

has been unable to obtain it.

Fault-based offence

(5) A person commits an offence if:

(a) the person is subject to a requirement under subsection (3);

and

(b) the person fails to comply with the requirement.

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

Penalty for contravention of this subsection: 30 penalty units.

100 Subsection 225(1)

Omit "authorised officer", substitute "authorised compliance officer".

101 Subsection 225(2)

Repeal the subsection, substitute:

(2) Subject to subsection (3), the magistrate may issue the warrant if

the magistrate is satisfied, by information on oath or affirmation,

that it is reasonably necessary that one or more authorised

compliance officers should have access to the premises for the

purposes of determining whether:

(a) a designated compliance provision has been, or is being,

complied with; or

(b) information given in compliance, or purported compliance,

with a designated compliance provision is correct.

102 Subsection 225(3)

Omit "authorised officer", substitute "authorised compliance officer".

103 Subsection 225(4)

Repeal the subsection, substitute:

Content of warrant

(4) The warrant must:

(a) describe the premises to which the warrant relates; and

(b) state that the warrant is issued under this section; and

(d) authorise one or more authorised compliance officers

(whether or not named in the warrant) from time to time

while the warrant remains in force:

(i) to enter the premises; and

(ii) to exercise the powers set out in subsection 223(2) and

sections 223A, 223B, 231 and 232 in relation to the

premises; and

(e) state whether entry is authorised to be made at any time of

the day or during specified hours of the day; and

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(f) specify the day (not more than 3 months after the issue of the

warrant) on which the warrant ceases to be in force.

104 Section 226 (heading)

Omit "

Contravention-related

", substitute "

Investigation

105 Subsections 226(1) and (3)

Omit "authorised officer", substitute "authorised compliance officer".

106 Subsection 226(4)

Repeal the subsection, substitute:

Content of warrant

(4) The warrant must:

(a) state the offence provision or offence provisions, or civil

penalty provision or civil penalty provisions, to which the

warrant relates; and

(b) describe the premises to which the warrant relates; and

(d) specify the kinds of evidential material to be searched for

under the warrant; and

(e) state that evidential material of the kind specified may be

seized under the warrant; and

(f) state that the person executing the warrant may seize any

other thing found in the course of executing the warrant if the

person believes on reasonable grounds that the thing is

evidential material of a kind not specified in the warrant; and

(g) name one or more authorised compliance officers; and

(h) authorise the authorised compliance officers named in the

warrant:

(i) to enter the premises; and

(ii) to exercise the powers referred to in subsections 224(2)

and (3) and sections 224A, 231 and 232 in relation to

the premises; and

(i) state whether entry is authorised to be made at any time of

the day or during specified hours of the day; and

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(j) specify the day (not more than 1 week after the issue of the

warrant) on which the warrant ceases to be in force.

107 Section 227 (heading)

Omit "

Contravention-related

", substitute "

Investigation

108 Subsections 227(1), (3), (4), (6) and (7)

Omit "authorised officer" (wherever occurring), substitute "authorised

compliance officer".

109 Subsection 227(11)

Repeal the subsection.

110 After section 227

Insert:

227A Persons assisting authorised compliance officers

Authorised compliance officers may be assisted by other persons

(1) An authorised compliance officer may be assisted by other persons

in exercising powers or performing functions or duties under this

Subdivision at premises, if that assistance is necessary and

reasonable. A person giving such assistance is a

person assisting

the authorised compliance officer.

Powers, functions and duties of a person assisting

(2) A person assisting the authorised compliance officer:

(a) may enter the premises; and

(b) may exercise powers under this Subdivision:

(i) if the premises were entered under subsection 223(1)--

for the purposes of assisting the authorised compliance

officer to determine whether a designated compliance

provision has been, or is being, complied with or

information given in compliance, or purported

compliance, with a designated compliance provision is

correct; or

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(ii) if the premises were entered under subsection 224(1)--

in relation to evidential material; and

this Subdivision that are incidental to the powers mentioned

in subparagraph (b)(i) or (ii); and

(d) must do so in accordance with any direction given by the

authorised compliance officer to the person assisting.

(3) A power exercised by a person assisting the authorised compliance

officer as mentioned in subsection (2) is taken for all purposes to

have been exercised by the authorised compliance officer.

(4) A function or duty performed by a person assisting the authorised

compliance officer as mentioned in subsection (2) is taken for all

purposes to have been performed by the authorised compliance

officer.

(5) If a direction is given under paragraph (2)(d) in writing, the

direction is not a legislative instrument.

111 Section 228

Repeal the section.

112 Section 229 (heading)

Omit "

authorised officers

", substitute "

authorised compliance

officers

113 Subsections 229(1) and (2)

Omit "authorised officer", substitute "authorised compliance officer".

114 After subsection 229(2)

Insert:

(2A) A consent may be expressed to be limited to entry during a

particular period. If so, the consent has effect for that period unless

the consent is withdrawn before the end of that period.

115 Subsection 229(3)

Omit "authorised officer" (wherever occurring), substitute "authorised

compliance officer".

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

116 At the end of section 229

Add:

(4) If:

(a) an authorised compliance officer is on premises by consent in

accordance with subsection (1); and

(b) the authorised compliance officer has not shown the occupier

of the premises the officer's identity card before entering the

premises;

the authorised compliance officer must do so on, or as soon as is

reasonably practicable after, entering the premises.

117 Section 230 (heading)

Omit "

authorised officers

", substitute "

authorised compliance

officers

118 Subsection 230(1)

Omit "authorised officer", substitute "authorised compliance officer".

119 Subsection 230(1)

Omit "a warrant issued under section 225 or 226", substitute "a

monitoring warrant or an investigation warrant".

120 Paragraph 230(1)(a)

Repeal the paragraph, substitute:

(a) announce that the authorised compliance officer is authorised

to enter the premises; and

(ab) show the authorised compliance officer's identity card to the

occupier of the premises, or to another person who

apparently represents the occupier, if the occupier or other

person is present at the premises; and

121 Subsection 230(2)

Omit "An authorised officer", substitute "An authorised compliance

officer who is executing an investigation warrant".

122 After subsection 230(2)

Insert:

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(2A) If:

(a) an authorised compliance officer does not comply with

subsection (1) because of subsection (2); and

(b) the occupier of the premises, or another person who

apparently represents the occupier, is present at the premises;

the authorised compliance officer must, as soon as practicable after

entering the premises, show his or her identity card to the occupier

or other person.

123 Subsection 230(3)

Repeal the subsection, substitute:

(3) If, when an authorised compliance officer is executing the warrant,

an occupier of the premises, or another person who apparently

represents the occupier, is present at the premises, the authorised

compliance officer must, as soon as practicable:

(a) make a copy of the warrant available to the occupier or other

person; and

(b) inform the occupier or other person, in writing, of the

responsibilities and rights of the occupier or other person

under sections 233C and 237.

124 Subsection 230(4)

Omit "authorised officer", substitute "authorised compliance officer".

125 Sections 231 and 232

Repeal the sections, substitute:

231 Use of equipment at premises

(1) This section applies if:

(a) an authorised compliance officer enters premises under

subsection 223(1) or 224(1); and

(b) the authorised compliance officer believes on reasonable

grounds that the authorised compliance officer can operate

equipment at the premises without damaging the equipment.

(2) The authorised compliance officer may operate the equipment to:

(a) see whether the following may be accessible by doing so:

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(i) if the premises were entered under subsection 223(1)--

relevant information;

(ii) if the premises were entered under subsection 224(1)--

evidential material; and

(b) put the relevant information or evidential material in

documentary form; and

storage device that:

(i) is brought to the premises for the exercise of the power;

(ii) is on the premises and the use of which for that purpose

has been agreed in writing by the occupier of the

premises.

The authorised compliance officer may then take the storage

device from the premises.

(3) In subsection (2),

relevant information

means information relevant

to determining whether:

(a) a designated compliance provision has been, or is being,

complied with; or

(b) information given in compliance, or purported compliance,

with a designated compliance provision is correct.

(4) If:

(a) the premises were entered under an investigation warrant;

and

(b) the authorised compliance officer suspects on reasonable

grounds that the equipment or a storage device on the

premises is or contains evidential material;

the authorised compliance officer may seize the equipment or the

storage device.

(5) An authorised compliance officer may seize equipment or a storage

device under subsection (4) only if:

(a) it is not practicable to put the evidential material in

documentary form as mentioned in paragraph (2)(b) or copy

the evidential material as mentioned in paragraph (2)(c); or

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(b) possession of the equipment or the storage device by the

occupier could constitute an offence against a law of the

Commonwealth.

232 Expert assistance to operate equipment at premises

(1) If an authorised compliance officer enters premises under a warrant

issued under this Subdivision and the officer believes on

reasonable grounds that:

(a) the following may be accessible by operating equipment at

the premises:

(i) in the case of a monitoring warrant--relevant

information (within the meaning of subsection 231(3));

(ii) in the case of an investigation warrant--evidential

material; and

(b) expert assistance is required to operate the equipment; and

under this subsection, the relevant information or evidential

material may be destroyed, altered or otherwise interfered

with;

the authorised compliance officer may do whatever is necessary to

secure the equipment, whether by locking it up, placing a guard or

otherwise.

(2) The authorised compliance officer must give notice to the occupier

of the premises of the officer's intention to secure the equipment

and of the fact that the equipment may be secured for up to 24

hours.

(3) The equipment may be secured:

(a) for a period not exceeding 24 hours; or

(b) until the equipment has been operated by the expert;

whichever happens first.

(4) If the authorised compliance officer believes on reasonable

grounds that the expert assistance will not be available within 24

hours, the officer may apply to the magistrate for an extension of

that period.

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(5) The authorised compliance officer must give notice to the occupier

of the premises of the officer's intention to apply for an extension,

and the occupier is entitled to be heard in relation to the

application.

(6) The 24-hour period may be extended more than once.

Note:

For the process by which a magistrate may extend the period, see

section 232A.

232A Extension of periods in which things secured

Application

(1) This section applies where an authorised compliance officer

applies to a magistrate under subsection 223A(2) or 232(4) for an

extension of the period during which a thing may be secured.

Granting extension

(2) The magistrate may, by order, grant an extension of the period if

the magistrate is satisfied, by information on oath or affirmation,

that:

(a) if the thing is secured under section 223A--it is necessary to

secure the thing in order to prevent it from being concealed,

lost or destroyed before a warrant to seize the thing is

obtained; or

(b) if the thing is equipment that is secured under section 232--it

is necessary to secure the thing:

(i) to ensure that relevant information is not destroyed,

altered or otherwise interfered with; or

(ii) to prevent evidential material from being destroyed,

altered or otherwise interfered with.

(3) However, the magistrate must not grant the extension unless the

authorised compliance officer or some other person has given to

the magistrate, either orally or by affidavit, such further

information (if any) as the magistrate requires concerning the

grounds on which the extension is being sought.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

Content of order

(4) The order extending the period must:

(a) describe the thing to which the order relates; and

(b) state the period for which the extension is granted; and

(d) state that the authorised compliance officer is authorised to

secure the thing for that period.

126 Subsection 233(1)

Repeal the subsection, substitute:

(1) This section applies if:

(a) as a result of equipment being operated as mentioned in this

Subdivision:

(i) damage is caused to the equipment; or

(ii) data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or

with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating

the equipment.

127 Subsection 233(2)

After "payable", insert "to the owner of the equipment, or the user of

the data or programs, for the damage or corruption".

128 After subsection 233(2)

Insert:

(2A) However, if the owner or user and the Commonwealth fail to

agree, the owner or user may institute proceedings in a court

referred to in section 138 for such reasonable amount of

compensation as the court determines.

129 Subsection 233(3)

Omit "thing", substitute "equipment".

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

130 After section 233

Insert:

233A Completing execution of warrant after temporary cessation

(1) This section applies if an authorised compliance officer, and all

persons assisting, who are executing an investigation warrant in

relation to premises temporarily cease its execution and leave the

premises.

(2) The authorised compliance officer, and persons assisting, may

complete the execution of the warrant if:

(a) the warrant is still in force; and

(b) the authorised compliance officer and persons assisting are

absent from the premises:

(i) for not more than 1 hour; or

(ii) if there is an emergency situation, for not more than 12

hours or such longer period as allowed by a magistrate

under subsection (5); or

(iii) for a longer period if the occupier of the premises

consents in writing.

Application for extension in emergency situation

(3) An authorised compliance officer may apply to a magistrate for an

extension of the 12-hour period mentioned in

subparagraph (2)(b)(ii) if:

(a) there is an emergency situation; and

(b) the authorised compliance officer believes on reasonable

grounds that the authorised compliance officer and the

persons assisting will not be able to return to the premises

within that period.

(4) If it is practicable to do so, before making the application, the

authorised compliance officer or person assisting must give notice

to the occupier of the premises of the intention to apply for an

extension.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

Extension in emergency situation

(5) A magistrate may extend the period during which the authorised

compliance officer and persons assisting may be away from the

premises if:

(a) an application is made under subsection (3); and

(b) the magistrate is satisfied, by information on oath or

affirmation, that there are exceptional circumstances that

justify the extension; and

warrant ceases to be in force.

233B Completing execution of warrant stopped by court order

An authorised compliance officer, and any persons assisting, may

complete the execution of an investigation warrant that has been

stopped by an order of a Court if:

(a) the order is later revoked or reversed on appeal; and

(b) the warrant is still in force when the order is revoked or

reversed.

233C Responsibility to provide facilities and assistance

(1) The occupier of premises to which a monitoring warrant or an

investigation warrant relates, or another person who apparently

represents the occupier, must provide:

(a) an authorised compliance officer executing the warrant; and

(b) any person assisting the authorised compliance officer;

with all reasonable facilities and assistance for the effective

exercise of their powers.

Fault-based offence

(2) A person commits an offence if:

(a) the person is subject to subsection (1); and

(b) the person fails to comply with that subsection.

Penalty for contravention of this subsection: 30 penalty units.

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

233D Copies of seized things to be provided

(1) This section applies if:

(a) an investigation warrant is being executed in relation to

premises; and

(b) an authorised compliance officer seizes one or more of the

following from the premises under this Subdivision:

(i) a document, film, computer file or other thing that can

be readily copied;

(ii) a storage device, the information in which can be

readily copied.

(2) The occupier of the premises, or another person who apparently

represents the occupier and who is present when the warrant is

executed, may request the authorised compliance officer to give a

copy of the thing or the information to the occupier or other

person.

(3) The authorised compliance officer must comply with the request as

soon as practicable after the seizure.

(4) However, the authorised compliance officer is not required to

comply with the request if possession of the document, film,

computer file, thing or information by the occupier or other person

could constitute an offence against a law of the Commonwealth.

233E Receipts for seized things

(1) An authorised compliance officer must provide a receipt for a thing

that is seized under this Subdivision.

(2) One receipt may cover 2 or more things seized.

233F Return of seized things

(1) The Inspector-General must take reasonable steps to return a thing

seized under this Subdivision when the earliest of the following

happens:

(a) the reason for the thing's seizure no longer exists;

(b) it is decided that the thing is not to be used in evidence;

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

Note:

For exceptions to this rule, see subsections (2) and (3).

Exceptions

(2) Subsection (1):

(a) is subject to any contrary order of a Court; and

(b) does not apply if the thing:

(i) is forfeited or forfeitable to the Commonwealth; or

(ii) is the subject of a dispute as to ownership.

(3) The Inspector-General is not required to take reasonable steps to

return a thing because of paragraph (1)(c) if:

(a) proceedings in respect of which the thing may afford

evidence were instituted before the end of the 60 days and

those proceedings (and any appeal from those proceedings)

have not been completed; or

(b) the thing may continue to be retained because of an order

under section 233G; or

authorised (by a law, or an order of a Court, of the

Commonwealth or of a State or Territory) to retain, destroy,

dispose of or otherwise deal with the thing.

Return of thing

(4) A thing that is required to be returned under this section must be

returned to the person from whom it was seized (or to the owner if

that person is not entitled to possess it).

233G Magistrate may permit a thing to be retained

(1) The Inspector-General may apply to a magistrate for an order

permitting the retention of a thing seized under this Subdivision for

a further period if proceedings in respect of which the thing may

afford evidence have not commenced before the end of:

(a) 60 days after the seizure; or

(b) a period previously specified in an order of a magistrate

under this section.

(2) Before making the application, the Inspector-General must:

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(a) take reasonable steps to discover who has an interest in the

retention of the thing; and

(b) if it is practicable to do so, notify each person who the

Inspector-General believes to have such an interest of the

proposed application.

(3) Any person notified under paragraph (2)(b) is entitled to be heard

in relation to the application.

Order to retain thing

(4) The magistrate may order that the thing may continue to be

retained for a period specified in the order if the magistrate is

satisfied that it is necessary for the thing to continue to be retained:

(a) for the purposes of an investigation as to whether a

designated compliance provision has been contravened; or

(b) to enable evidence of a contravention mentioned in

paragraph (a) to be secured for the purposes of a prosecution

or an action to obtain a pecuniary penalty order.

(5) The period specified must not exceed 3 years.

233H Disposal of things

(1) The Inspector-General may dispose of a thing seized under this

Subdivision if:

(a) the Inspector-General has taken reasonable steps to return the

thing to a person; and

(b) either:

(i) the Inspector-General has been unable to locate the

person; or

(ii) the person has refused to take possession of the thing.

(2) The Inspector-General may dispose of the thing in such manner as

the Inspector-General thinks appropriate.

131 Paragraph 234(1)(a)

Omit "authorised officer", substitute "authorised compliance officer".

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

132 Paragraph 234(1)(b)

Omit "a warrant under section 225 or 226", substitute "a monitoring

warrant or an investigation warrant".

133 Subsection 234(2)

Omit "an authorised officer", substitute "an authorised compliance

officer".

134 Paragraph 234(2)(b)

Omit "authorised officer's", substitute "authorised compliance

officer's".

135 Paragraphs 234(2)(c) and (d)

Omit "authorised officer", substitute "authorised compliance officer".

136 Section 235

Repeal the section, substitute:

Subdivision C--Powers of magistrates

235 Powers of magistrates

Powers conferred personally

(1) A power conferred on a magistrate by Subdivision B is conferred

on the magistrate:

(a) in a personal capacity; and

(b) not as a court or a member of a court.

Powers need not be accepted

(2) The magistrate need not accept the power conferred.

Protection and immunity

(3) A magistrate exercising a power conferred by Subdivision B has

the same protection and immunity as if the magistrate were

exercising the power:

(a) as the court of which the magistrate is a member; or

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(b) as a member of the court of which the magistrate is a

member.

137 Section 236 (at the end of the heading)

Add "

or legal professional privilege

138 Section 236 (after the heading)

Insert:

Self-incrimination

139 Section 236

Before "Nothing", insert "(1)".

140 At the end of section 236

Add:

Legal professional privilege

(2) Nothing in this Division affects the right of a person to refuse to

answer a question, give information, or produce a document, on the

ground that:

(a) the answer to the question or the information would be

privileged from being given on the ground of legal

professional privilege; or

(b) the document would be privileged from being produced on

the ground of legal professional privilege.

141 Paragraph 237(1)(a)

Repeal the paragraph, substitute:

(a) an authorised compliance officer is entering premises under

Subdivision B; and

142 Subsection 237(1)

Omit "the authorised officer", substitute "the authorised compliance

officer".

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

143 Subsection 237(2)

Omit "authorised officer's", substitute "authorised compliance

officer's".

144 Subsection 237(3)

Omit "the authorised officer", substitute "the authorised compliance

officer".

145 Subsection 237(3)

Omit "the authorised officers", substitute "the authorised compliance

officers".

146 At the end of Subdivision D of Division 2 of Part 10

Add:

237A Obstructing authorised compliance officers

Civil penalty provision

A person is liable to a civil penalty if the person obstructs, hinders,

intimidates or resists an authorised compliance officer in the

performance of the officer's functions or duties, or the exercise of

the officer's powers, under this Act.

Note 1:

In proceedings against a person for a contravention of a civil penalty

provision, it is generally not necessary to prove the person's state of

mind (see section 154C).

Note 2:

A person who is liable to a civil penalty under this section may also

commit an offence against section 149.1 of the

Criminal Code

Civil penalty:

100 penalty units.

147 Section 238

Repeal the section, substitute:

238 Power to require information

(1) This section applies to a person if the Inspector-General has reason

to believe that information (the

compellable information

) relating

to any of the following matters:

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(a) the investigation of a designated compliance provision;

(b) an audit being conducted under section 73L;

(i) relevant to the performance of the Inspector-General's

functions (other than the functions referred to in any of

paragraphs 215C(1)(a) to (c)); and

(ii) specified in regulations made for the purposes of this

paragraph;

is in the person's possession, custody or control (whether held

electronically or in any other form).

(2) The Inspector-General may, in writing, require the person to give

specified compellable information to the Inspector-General:

(a) within a specified period of time (which must not be less than

14 days after the requirement is made); and

(b) in a specified form or manner.

Fault-based offence

(3) A person commits an offence if:

(a) the person is subject to a requirement under subsection (2);

and

(b) the person fails to comply with the requirement.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

Civil penalty provisions

(4) A person is liable to a civil penalty if:

(a) the person is subject to a requirement under subsection (2);

and

(b) the person fails to comply with the requirement.

Note:

In proceedings against a person for a contravention of a civil penalty

provision, it is generally not necessary to prove the person's state of

mind (see section 154C).

Civil penalty:

100 penalty units.

(5) A person is liable to a civil penalty if:

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(a) the person is subject to a requirement under subsection (2);

and

(b) the person gives information to the Inspector-General in

compliance or purported compliance with that requirement;

and

(i) is false or misleading in a material particular; or

(ii) omits any matter or thing without which the information

is misleading in a material particular.

Note:

A person may commit an offence if the person provides false or

misleading information or documents (see sections 137.1 and 137.2 of

the

Criminal Code

Civil penalty:

100 penalty units.

Exceptions

(6) Subsection (4) does not apply to the extent that the person has a

reasonable excuse. However, a person does not have a reasonable

excuse merely because the information in question is:

(a) of a commercial nature; or

(b) subject to an obligation of confidentiality arising from a

commercial relationship; or

Note:

The person bears an evidential burden in relation to the matter in this

subsection (see section 154E).

(7) Subsection (4) does not apply in relation to compellable

information relating to a matter referred to in paragraph (1)(a) or

(b) if giving the information might tend to incriminate the person

or expose the person to a penalty.

Note:

The person bears an evidential burden in relation to the matter in this

subsection (see section 154E).

148 Before Part 10A

Insert:

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

Part 10AB--Inspector-General of Water

Compliance (inquiry powers)

239AA Inspector-General may conduct inquiry

Inspector-General may conduct inquiry on own initiative

(1) The Inspector-General may, on the Inspector-General's own

initiative, conduct an inquiry for the purpose of performing the

function referred to in paragraph 215C(1)(a), (b) or (c).

Minister may direct Inspector-General to conduct inquiry

(2) The Minister may direct the Inspector-General, in writing, to

conduct an inquiry into a particular matter related to the function

referred to in paragraph 215C(1)(a), (b) or (c).

(3) A direction under subsection (2) to conduct an inquiry may specify

either or both of the following:

(a) the date by which the inquiry is to be completed;

(b) that the Inspector-General must prepare a written report on

the inquiry and give it to the Minister.

(4) A direction under subsection (2) must not specify the way in which

an inquiry is to be conducted.

(5) The Inspector-General must comply with a direction given under

subsection (2).

(6) A direction given under subsection (2) is not a legislative

instrument.

Conduct of inquiry

(7) In conducting an inquiry, the Inspector-General must have regard

to any applicable guidelines issued under section 215V and

standards issued under section 215VA.

(8) The regulations may make other provision for and in relation to the

process to be followed in conducting an inquiry.

Note:

Section 239AE makes provision in relation to reports of an inquiry.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

239AB Terms of reference for inquiry

(1) The Inspector-General may, in writing, determine the terms of

reference for an inquiry under section 239AA.

(2) A determination under subsection (1) of the terms of reference for

an inquiry under section 239AA must specify the legislative

powers of the Commonwealth that support the exercise by the

Inspector-General of the powers in subsections 239AC(2) and

239AD(2) in relation to the inquiry.

(3) A determination under subsection (1) is not a legislative

instrument.

(4) The Inspector-General must publish the determination of the terms

of reference for an inquiry under section 239AA on the

Inspector-General's website or the Department's website.

239AC Inspector-General may require person to give information

for the purpose of certain inquiries

(1) This section applies in relation to an inquiry under section 239AA

if the Inspector-General determined the terms of reference for the

inquiry under section 239AB.

Note:

A determination under subsection 239AB(1) of the terms of reference

for an inquiry under section 239AA must specify the legislative

powers of the Commonwealth that support the exercise of the power

in subsection (2) of this section (see subsection 239AB(2)).

(2) If the Inspector-General reasonably believes that information (the

compellable information

) that may assist the Inspector-General in

conducting the inquiry is in a person's possession, custody or

control (whether held electronically or in any other form), the

Inspector-General may, by written notice, require the person to

give specified compellable information to the Inspector-General:

(a) within the period of time specified in the notice (which must

be at least 14 days after the notice is given); and

(b) in the form or manner specified in the notice.

(3) A notice given under subsection (2) must also set out the effect of:

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(a) subsections (4) to (6) of this section and section 239AH

(which deals with the privilege against self-incrimination and

legal professional privilege); and

(b) section 137.1 of the

Criminal Code

(which deals with false or

misleading information).

Fault-based offence

(4) A person commits an offence if:

(a) the person is subject to a requirement under subsection (2);

and

(b) the person fails to comply with the requirement.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

Civil penalty provisions

(5) A person is liable to a civil penalty if:

(a) the person is subject to a requirement under subsection (2);

and

(b) the person fails to comply with the requirement.

Note:

In proceedings against a person for a contravention of a civil penalty

provision, it is generally not necessary to prove the person's state of

mind (see section 154C).

Civil penalty:

100 penalty units.

(6) Subsection (5) does not apply if the person has a reasonable

excuse.

Note:

The person bears an evidential burden in relation to the matter in this

subsection (see section 154E).

(7) A person is liable to a civil penalty if:

(a) the person is subject to a requirement under subsection (2);

and

(b) the person gives information to the Inspector-General in

compliance or purported compliance with that requirement;

and

(i) is false or misleading in a material particular; or

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(ii) omits any matter or thing without which the information

is misleading in a material particular.

Note:

A person may commit an offence if the person provides false or

misleading information or documents (see sections 137.1 and 137.2 of

the

Criminal Code

Civil penalty:

100 penalty units.

239AD Inspector-General may require person to appear to answer

questions for the purpose of certain inquiries

(1) This section applies in relation to an inquiry under section 239AA

if the Inspector-General determined the terms of reference for the

inquiry under section 239AB.

Note:

A determination under subsection 239AB(1) of the terms of reference

for an inquiry under section 239AA must specify the legislative

powers of the Commonwealth that support the exercise of the power

in subsection (2) of this section (see subsection 239AB(2)).

(2) If the Inspector-General reasonably believes that a person has

information or knowledge (the

compellable information

) that may

assist the Inspector-General in conducting the inquiry, the

Inspector-General may, by written notice, require the person to

appear before the Inspector-General to answer questions in relation

to the compellable information.

(3) A notice given under subsection (2) must:

(a) specify the time and place the person must appear to answer

questions; and

(b) specify the nature of the compellable information to which

the questions will relate; and

(d) state whether any other persons may accompany the person;

and

(e) set out the effect of:

(i) subsections (5) and (6) of this section and

section 239AH (which deals with the privilege against

self-incrimination and legal professional privilege); and

(ii) section 137.1 of the

Criminal Code

(which deals with

false or misleading information).

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

(4) The time specified under paragraph (3)(a) must be at least 14 days

after the notice is given.

Fault-based offence

(5) A person commits an offence if:

(a) the person is subject to a requirement under subsection (2);

and

(b) the person fails to comply with the requirement.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

Civil penalty provision

(6) A person is liable to a civil penalty if:

(a) the person is subject to a requirement under subsection (2);

and

(b) the person fails to comply with the requirement.

Note:

In proceedings against a person for a contravention of a civil penalty

provision, it is generally not necessary to prove the person's state of

mind (see section 154C).

Civil penalty:

100 penalty units.

(7) Subsection (6) does not apply if the person has a reasonable

excuse.

Note:

The person bears an evidential burden in relation to the matter in this

subsection (see section 154E).

Record of interview

(8) If a person gives answers to questions in compliance with a notice

given to the person under subsection (2), the Inspector-General

must give a written record of the answers to the person.

239AE Reports by Inspector-General

(1) The Inspector-General must report to the Minister on each inquiry

conducted under section 239AA.

(2) If:

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(a) the Inspector-General conducted an inquiry under

section 239AA at the request of the Minister; and

(b) the Minister requested the Inspector-General to prepare a

written report on the inquiry;

the Inspector-General must give the Minister a written report on

the inquiry.

Note:

Certain material must not be included in a report of an inquiry (see

section 239AG).

(3) The Inspector-General may prepare a single report covering more

than one inquiry conducted under section 239AA.

(4) A report of an inquiry may include findings and recommendations

in relation to any matter included in the report.

(5) The Inspector-General may publish a report of an inquiry on the

Inspector-General's website or the Department's website.

239AF Responses to inquiry reports including recommendations

that an agency take certain action

(1) This section applies if:

(a) the Inspector-General publishes a report of an inquiry under

subsection 239AE(5); and

(b) the report includes a recommendation that an agency of the

Commonwealth, or an agency of a State or Territory, take

certain action.

(2) The agency to which the recommendation is made must give a

written response to the Inspector-General, within 90 days after the

report was published or within any longer period agreed to by the

Inspector-General, that sets out:

(a) whether the agency accepts the recommendation (in whole or

in part); and

(b) if the agency accepts the recommendation (in whole or in

part)--details of any action that the agency proposes to take

to give effect to the recommendation (in whole or in part);

and

Amendment of the Water Act 2007

Schedule 1

Compliance and enforcement

Part 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

or in part)--the reasons for not accepting the

recommendation (in whole or in part).

(3) However, the agency to which the recommendation is made is not

required to comply with subsection (2) if the recommendation

relates to the Inspector-General's function referred to in

paragraph 215C(1)(c).

(4) The Inspector-General may publish a copy of each response

received under subsection (2) on the Inspector-General's website

or the Department's website.

239AG Including criticism in reports

Opportunity to comment on critical material in report

(1) If the Inspector-General proposes to include in a report prepared

under section 239AE, or an annual report prepared under

section 215Y, material that is expressly or impliedly critical of a

person or body, the Inspector-General must, before the report is

finalised, give the person or body an opportunity to comment on

the material.

(2) The person or body may give comments orally or in writing.

Protection from liability for persons who give comments

(3) If a person or body gives comments, in good faith, under this

section, the person or body is not liable:

(a) to any proceedings for contravening a law of the

Commonwealth because of giving the comments; or

(b) to civil proceedings for loss, damage or injury of any kind

suffered by another person because of giving the comments.

No loss of legal professional privilege

(4) Information or a document does not cease to be the subject of legal

professional privilege merely because it is included or referred to

in comments given under this section.

Schedule 1

Amendment of the Water Act 2007

Part 2

Compliance and enforcement

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

239AH Privilege against self-incrimination and legal professional

privilege not abrogated

Self-incrimination

(1) Nothing in this Part affects the right of a person to refuse to answer

a question, give information, or produce a document, on the ground

that the answer to the question, the information or the production

of the document might tend to incriminate the person or make the

person liable to a penalty.

Legal professional privilege

(2) Nothing in this Part affects the right of a person to refuse to answer

a question, give information, or produce a document, on the ground

that:

(a) the answer to the question or the information would be

privileged from being given on the ground of legal

professional privilege; or

(b) the document would be privileged from being produced on

the ground of legal professional privilege.

149 At the end of subsection 251(2)

Add:

; (k) the power to give directions to the Inspector-General under

section 215D.

Amendment of the Water Act 2007

Schedule 1

Transitional provisions

Part 3

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

Part 3--Transitional provisions

Water Act 2007

150 At the end of Part 2 of Schedule 10

Add:

Division 2--Other amendments

2 Definitions

In this Division:

commencement day

means the day Schedule 1 to the

Water

Legislation Amendment (Inspector-General of Water

Compliance

and Other Measures) Act 2021

commences.

3 Appropriate enforcement agency

The amendment of paragraph 137(a) of this Act made by item 19

of Schedule 1 to the

Water Legislation Amendment

(Inspector-General of Water

Compliance and Other Measures) Act

2021

applies in relation to contraventions occurring before, on or

after the commencement day.

4 Legal proceedings involving the Murray-Darling Basin Authority

(1) If, immediately before the commencement day:

(a) the Murray-Darling Basin Authority was a party to

proceedings pending in any court or tribunal; and

(b) the proceedings:

(ii) were brought as permitted by Part 8 of the Act, as in

force before the commencement day; or

(ii) related to the exercise of powers under Part 10 of the

Act, as in force before the commencement day;

the Inspector-General of Water Compliance is substituted for the

Murray-Darling Basin Authority as a party to the proceedings on

and after that day.

Schedule 1

Amendment of the Water Act 2007

Part 3

Transitional provisions

100

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

(2) Subclause (1) does not apply in relation to pending proceedings

relating to the payment of compensation to a person under

section 233 or 254 of this Act arising from the exercise of powers

under Part 10 of this Act, as in force before the commencement

day.

5 Enforceable undertakings

If:

(a) before the commencement day, the Authority had accepted

an undertaking given by a person under section 163 of this

Act; and

(b) the undertaking had not been withdrawn or cancelled before

that day;

then the undertaking continues to have effect on and after the

commencement day as if it were an undertaking accepted by the

Inspector-General under that section.

6 Enforcement notices

(1) The amendments of section 165 of this Act made by items 36 to 42

of Schedule 1 to the

Water Legislation Amendment

(Inspector-General of Water

Compliance and Other Measures) Act

2021

apply in relation to contraventions, conduct and omissions

occurring before, on or after the commencement day.

(2) Section 166 of this Act, as substituted by item 43 of Schedule 1 to

the

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Act 2021

, applies in relation to a

contravention of a notice that is given under subsection 165(2) of

this Act on or after the commencement day.

(3) The amendment of section 167 of this Act made by item 44 of

Schedule 1 to the

Water Legislation Amendment

(Inspector-General of Water

Compliance and Other Measures) Act

2021

applies in relation to a notice given under section 165 of this

Act before, on or after the commencement day.

Amendment of the Water Act 2007

Schedule 1

Transitional provisions

Part 3

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

101

7 Public warning notices

Section 167A of this Act applies in relation to conduct occurring

on or after the commencement day.

8 Offences and civil penalty provisions

(1) An offence provision or a civil penalty provision that was inserted

into this Act by Schedule 1 to the

Water Legislation Amendment

(Inspector-General of Water

Compliance and Other Measures) Act

2021

applies in relation to an act or omission that occurs on or after

the commencement day.

(2) An offence provision or a civil penalty provision, as amended by

Schedule 1 to the

Water Legislation Amendment

(Inspector-General of Water

Compliance and Other Measures) Act

2021

, applies in relation to an act or omission that occurs on or

after the commencement day.

9 Credits to the Murray-Darling Basin Special Account

The amendment of paragraph 210(1)(i) of this Act made by

item 59 of Schedule 1 to the

Water Legislation Amendment

(Inspector-General of Water

Compliance and Other Measures) Act

2021

applies in connection with the performance of the Authority's

functions under this Act or the regulations on or after the

commencement day.

10 Disclosure of information by the Authority

Section 215A of this Act applies in relation to information obtained

before, on or after the commencement day.

11 Inquiry may relate to matters occurring before, on or after

commencement day

The Inspector-General may conduct an inquiry under

section 239AA of this Act for the purpose of performing the

function referred to in paragraph 215C(1)(a), (b) or (c) of this Act

in relation to the performance of functions or obligations, exercise

of powers or implementation of commitments referred to in those

Schedule 1

Amendment of the Water Act 2007

Part 3

Transitional provisions

102

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

paragraphs by agencies of the Commonwealth, or agencies of the

Basin States, before, on or after the commencement day.

12 Inspector-General's first annual work plan

For the purposes of subsection 215E(1) of the Act, the

Inspector-General must prepare a work plan for the financial year

that includes the commencement day within 3 months after the

commencement day.

13 Inspector-General's compliance powers

(1) The powers conferred on the Inspector-General by Subdivision B

of Division 1 of Part 10AA of this Act may be exercised in relation

to contraventions or acts or omissions occurring before, on or after

the commencement day.

(2) Subclause (1) has effect subject to clause 8 of this Schedule.

14 Declaration by the Authority before commencement day relating

to restrictions on trading water access right

(1) If:

(a) a declaration was made by the Authority under

subsection 12.20(1) of the Basin Plan before the

commencement day; and

(b) the declaration was in force immediately before that day;

the declaration continues in force on and after that day as if it had

been made by the Inspector-General under that subsection.

(2) If:

(a) before the commencement day, a Basin State had, under

paragraph 12.20(1)(a) of the Basin Plan, requested the

Authority to make a declaration; and

(b) no decision on the request had been made before the

commencement day;

the request is taken, on and after the commencement day, to be a

request made under paragraph 12.20(1)(a) of the Basin Plan to the

Inspector-General to make the declaration.

Amendment of the Water Act 2007

Schedule 1

Transitional provisions

Part 3

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

103

15 Declaration by the Authority before commencement day

permitting application of exchange rate to trade of water

access entitlement

(1) If:

(a) a declaration was made by the Authority under

subsection 12.22(3) of the Basin Plan before the

commencement day; and

(b) the declaration was in force immediately before that day;

the declaration continues in force on and after that day as if it had

been made by the Inspector-General under that subsection.

(2) If:

(a) before the commencement day, a Basin State had, under

subsection 12.22(2) of the Basin Plan, requested the

Authority to make a declaration; and

(b) no decision on the request had been made before the

commencement day;

the request is taken, on and after the commencement day, to be a

request made under subsection 12.22(2) of the Basin Plan to the

Inspector-General to make the declaration.

16 Audits

Inspector-General may conduct audit to assess compliance

occurring before, on or after commencement day

(1) The Inspector-General may conduct an audit under section 73L of

this Act to assess the extent of compliance with the Basin Plan or

water resource plans occurring before, on or after the

commencement day.

Audits to assess compliance with Basin Plan in progress before

commencement day

(2) If:

(a) an audit was being conducted under Division 3 of Part 3 of

Chapter 13 of the Basin Plan before the commencement day;

and

(b) the audit had not been completed before that day;

Schedule 1

Amendment of the Water Act 2007

Part 3

Transitional provisions

104

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

then, despite the repeal of Division 3 of Part 3 of Chapter 13 and

section 13.20 of the Basin Plan

(the

Basin Plan audit provisions

)

by items 18 and 20 of Schedule 2 to the

Water Legislation

Amendment (Inspector-General of Water

Compliance and Other

Measures) Act 2021

, the Basin Plan audit provisions continue to

apply on and after the commencement day in relation to the audit.

(3) Subsection 73M(2) of this Act applies in relation to an audit that is

completed after the commencement day under Division 3 of Part 3

of Chapter 13 of the Basin Plan (as that Division continues to apply

because of subclause (2) of this clause) if:

(a) a report setting out the findings of the audit and any

recommendations arising from the audit is published under

section 13.20 of the Basin Plan (as that section continues to

apply because of subclause (2) of this clause); and

(b) the report includes a recommendation that an agency of the

Commonwealth, or an agency of a State or Territory, take

certain action.

17 Regulations may provide for other transitional matters relating

to the Inspector-General

The regulations may prescribe matters of a transitional nature

(including prescribing any saving or application provisions)

relating to:

(a) the establishment of the Inspector-General; and

(b) the transfer of functions from the Authority to the

Inspector-General.

Amendment of the Basin Plan 2012

Schedule 2

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

105

Schedule 2--Amendment of the Basin Plan

2012

Basin Plan 2012

1 Subsection 6.12(3)

After "the Authority", insert "and to the Inspector-General".

2 Subsection 6.12(5)

After "the Authority", insert "and the Inspector-General".

3 Section 6.12 (note 2)

Repeal the note, substitute:

Note 2:

The Inspector-General may conduct, or appoint or establish a person

or body to conduct, an audit in relation to compliance using the

Inspector-General's powers under the Act. The Inspector-General

must publish a copy of a report of the audit on the Inspector-General's

website or the Department's website. The findings of such an audit

may also lead to further action being taken by the Inspector-General to

ensure compliance with sections 34, 35, 58 and 59 of the Act.

4 Subsection 6.12C(3)

After "the Authority", insert "and to the Inspector-General".

5 Subsection 6.12C(5)

After "the Authority", insert "and the Inspector-General".

6 Section 6.12C (note 2)

Repeal the note, substitute:

Note 2:

The Inspector-General may conduct, or appoint or establish a person

or body to conduct, an audit in relation to compliance using the

Inspector-General's powers under the Act. The Inspector-General

must publish a copy of a report of the audit on the Inspector-General's

website or the Department's website. The findings of such an audit

may also lead to further action being taken by the Inspector-General to

ensure compliance with sections 34, 35, 58 and 59 of the Act.

Schedule 2

Amendment of the Basin Plan 2012

106

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

7 Section 12.19 (heading)

Omit "

the Authority

", substitute "

the Inspector-General

8 Subsection 12.19(1)

Omit "the Authority", substitute "the Inspector-General".

9 Section 12.20 (heading)

Omit "

Authority

", substitute "

the Inspector-General

10 Subsection 12.20(1)

Omit "The Authority", substitute "The Inspector-General".

11 Paragraphs 12.20(1)(a) and (b)

Omit "the Authority", substitute "the Inspector-General".

12 Subsections 12.20(2) and (3)

Omit "The Authority", substitute "The Inspector-General".

13 Subsection 12.20(3)

Omit "its" (wherever occurring), substitute "the Inspector-General's".

14 Section 12.22 (heading)

Omit "

Authority

", substitute "

Inspector-General

15 Section 12.22

Omit "Authority" (wherever occurring), substitute "Inspector-General".

16 Subparagraph 13.01(2)(b)(i)

Omit ", conducting audits,".

17 Part 3 of Chapter 13 (heading)

Omit "

, audits

18 Division 3 of Part 3 of Chapter 13

Repeal the Division.

Schedule 3

Other amendments of the Water Act 2007

108

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

No. , 2021

Schedule 3--Other amendments of the Water

Act 2007

Water Act 2007

1 Subsection 4(1) (paragraph (f) of the definition of

State

water management law

)

After "Basin State", insert ", or a part of such a law,".

2 After subsection 18C(2)

Insert:

(2A) Subsection 14(2) of the

Legislation Act 2003

does not apply to

regulations made for the purposes of subsection (1) of this section.

3 Paragraph 193(2)(a)

Omit "section 183 prevents", substitute "rules in force for the purposes

of paragraph 29(2)(c) of the

Public Governance, Performance and

Accountability Act 2013

prevent".

4 Subsection 197(3)

Repeal the subsection, substitute:

(3) Paragraph (1)(a) does not apply to an Authority member who

would be prevented by rules in force for the purposes of

paragraph 29(2)(c) of the

Public Governance, Performance and

Accountability Act 2013

from deliberating on the proposed

decision at a meeting of the Authority.

5 At the end of Schedule 10

Add:

Other amendments of the Water Act 2007

Schedule 3

No. , 2021

Water Legislation Amendment (Inspector-General of Water

Compliance and Other Measures) Bill 2021

109

Part 2--Transitional provisions relating to the

Water Legislation Amendment

(Inspector-General of Water Compliance

and Other Measures) Act 2021

Division 1--Amendments to Schedule 1 to this Act made by

regulations

1 Application of amendments--amendments to Schedule 1 to this

Act made by regulations

Subsection 18C(2A) of this Act, as inserted by item 2 of

Schedule 3 to the

Water Legislation Amendment

(Inspector-General of Water

Compliance and Other Measures) Act

2021

, applies:

(a) in relation to regulations made after the commencement of

that subsection; and

(b) in relation to regulations made before the commencement of

that subsection as if that subsection had been in force when

the regulations were made.

Commonwealth of Australia Bills

WATER LEGISLATION AMENDMENT (INSPECTOR-GENERAL OF WATER COMPLIANCE AND OTHER MEASURES) BILL 2021