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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
WATER AMENDMENT (RESTORING OUR RIVERS) BILL 2023
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for the Environment and Water,
the Hon. Tanya Plibersek MP)
AMENDMENTS TO THE WATER AMENDMENT (RESTORING OUR RIVERS)
BILL 2023
GENERAL OUTLINE
The Water Amendment (Restoring Our Rivers) Bill 2023 (the Bill) would implement the Basin
Plan 2012 (the Basin Plan) in full and implement recommendations from the Water Market
Reform: Final Roadmap Report to restore transparency, integrity and confidence in water
markets in the Murray-Darling Basin.
The proposed amendments to the Bill would amend the Water Act 2007 (the Water Act) and
the Basin Plan to:
• strengthen transparency and accountability in the Basin Plan, including in relation to
the Inspector-General of Water Compliance's (the Inspector-General) powers;
• ensure the Australian Competition and Consumer Commission (the ACCC) can enforce
its new information gathering power in the Bill, by making the ACCC the appropriate
enforcement agency for the power and by adding a civil penalty provision for
contraventions;
• ensure that the Inspector-General does not have the function to monitor or provide
oversight of the functions or powers of any Commonwealth agencies, including the
ACCC, or Basin State agencies' obligations under the integrity and conduct reforms;
and
• make minor and technical amendments in response to feedback from the
Commonwealth and Basin State agencies, and to ensure the Bill would operate as
intended.
FINANCIAL IMPACT STATEMENT
The proposed amendments would have no financial impact on the Australian Government
Budget.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The proposed amendments to the Bill are compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011. The full Statement of Compatibility with Human Rights is
included in this supplementary explanatory memorandum at the Attachment.
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NOTES ON AMENDMENTS
Amendment 1 - Schedule 2, item 2, page 11 (line 16)
1. This amendment would substitute 'publish guidelines' with 'issue and publish
guidelines under subsection 215V(1)' in proposed section 6.08A of the Basin Plan to
clarify that the Inspector-General may issue, in addition to publish, guidelines under
subsection 215V(1) of the Water Act in relation to action plans.
2. Subsection 215V(1) of the Water Act provides the Inspector-General with the power to
make guidelines relating to the performance by the Commonwealth and Basin States of
their water management obligations under the Water Act and Basin Plan. The
Commonwealth and Basin States must have regard to such guidelines in performing
their water management obligations. Any guidelines made under this section are not
legislative instruments.
3. This amendment would clarify that guidelines made by the Inspector-General under
subsection 6.08A(2) would be guidelines for the purposes of section 215V of the Water
Act.
Amendment 2 - Schedule 2, item 2, page 11 (after line 18), at the end of subsection (2)
4. This amendment would insert a note after proposed subsection 6.08A(2) of the Basin
Plan to clarify that, under section 215VB of the Water Act, the Inspector-General must
consult the Basin States, and have regard to any submissions made by the Basin States
in preparing guidelines under section 6.08A.
Amendment 3 - Schedule 2, item 2, page 12 (line 8)
5. This amendment would substitute 'publish guidelines' with 'issue and publish
guidelines under subsection 215V(1)' in proposed section 6.08C of the Basin Plan to
clarify that the Inspector-General may issue, in addition to publish, guidelines under
subsection 215V(1) of the Water Act in relation to action plans.
6. Subsection 215V(1) of the Water Act provides the Inspector-General with the power to
make guidelines relating to the performance by the Commonwealth and Basin States of
their water management obligations under the Water Act and Basin Plan. The
Commonwealth and Basin States must have regard to such guidelines in performing
their water management obligations. Any guidelines made under this section are not
legislative instruments.
7. This amendment would clarify that guidelines made by the Inspector-General under
subsection 6.08C(2) would be guidelines for the purposes of section 215V of the Water
Act.
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Amendment 4 - Schedule 2, item 2, page 12, (after line 10), at the end of subsection (2)
8. This amendment would insert a note after proposed subsection 6.08C(2) of the Basin
Plan to provide clarification that, under section 215VB of the Water Act, the Inspector-
General must consult the Basin States, and have regard to any submissions made by the
Basin States in preparing guidelines under section 6.08C.
Amendment 5 - Schedule 2, item 48, page 24 (line 4)
9. This amendment would provide for a minor typographical correction to item 48 of
Schedule 2 to correct the definition of varying HEW contribution to refer to an SDL
'resource' unit.
Amendment 6 - Schedule 3, item 2, page 47 (after line 18), at the end of subsection
100ZH(3)
10. This amendment would insert a note clarifying that the evidential burden of proof would
be placed upon the partner seeking to rely on proposed subsection 100ZH(3). This is
due to the effect of section 154E of the Water Act which provides that a person who
seeks to rely on an exception in relation to a civil penalty provision bears an evidential
burden.
11. The purpose of this amendment is to provide clarity to readers and does not alter the
operation of proposed section 100ZH.
Amendment 7 - Schedule 3, item 2, page 48 (after line 5), at the end of subsection 100ZJ(3)
12. This amendment would insert a note clarifying that the evidential burden of proof would
be placed upon the member seeking to rely on proposed subsection 100ZJ(3). This is
due to the effect of section 154E of the Water Act which provides that a person who
seeks to rely on an exception in relation to a civil penalty provision bears an evidential
burden.
13. The purpose of this amendment is to provide clarity to readers and does not alter the
operation of proposed section 100ZJ.
Amendment 8 - Schedule 3, item 2, page 48 (after line 21), at the end of subsection
100ZK(3)
14. This amendment would insert a note clarifying that the evidential burden of proof would
be placed upon the trustee seeking to rely on proposed subsection 100ZK(3). This is
due to the effect of section 154E of the Water Act which provides that a person who
seeks to rely on an exception in relation to a civil penalty provision bears an evidential
burden.
15. The purpose of this amendment is to provide clarity to readers and does not alter the
operation of proposed section 100ZK.
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Amendment 9 - Schedule 3, item 3, page 49 (line 15), definition of material effect
16. This amendment would clarify that the definition of material effect would be for the
purposes of proposed Part 5A of the Water Act. The purpose of this amendment is to
provide clarification only and would not alter the substantive definition of this term.
Amendment 10 - Schedule 3, item 4, page 52 (after line 11), after subsection 101B(3)
17. This amendment would insert proposed subsection 101B(3A) into the Water Act to
require a person who provides a water markets decision to the Bureau of Meteorology
(Bureau) or reports the announcement of a water markets decision to the Bureau to
comply with any requirements prescribed in the regulations. The regulations would be
able to prescribe matters in relation to the manner or form in which decisions, reports
or details in relation to decisions or reports are provided to the Bureau.
18. The ability to prescribe such matters in the regulations would be consistent with good
regulatory practice. Over time, market behaviours and technological advances are likely
to necessitate changes to the manner and form by which information is to be provided
to the Bureau. Allowing the regulations to prescribe such matters provides the necessary
flexibility to quickly respond to changes in the regulatory framework and ensures that
the Bureau receives information in a way that is useful and enables it to carry out its
role in the overall framework.
Amendment 11- Schedule 3, item 4, page 52 (line 13)
19. The amendment would substitute 'or (3)' for ', (3) or (3A)' to ensure that the civil
penalty provision at proposed subsection 101B(4) also applies to proposed subsection
101B(3A).
Amendment 12 - Schedule 3, item 4, page 58 (after line 31), at the end of subsection
101M(3)
20. This amendment would insert a note clarifying that the evidential burden of proof would
be placed upon the partner seeking to rely on proposed subsection 101M(3). This is due
to the effect of section 154E of the Water Act which provides that a person who seeks
to rely on an exception in relation to a civil penalty provision bears an evidential burden.
21. The purpose of this amendment is to provide clarity to readers and does not alter the
operation of proposed section 101M.
Amendment 13- Schedule 3, item 4, page 59 (after line 19), at the end of subsection
101N(3)
22. This amendment would insert a note clarifying that the evidential burden of proof
would be placed upon the member seeking to rely on proposed subsection 101N(3).
This is due to the effect of section 154E of the Water Act which provides that a person
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who seeks to rely on an exception in relation to a civil penalty provision bears an
evidential burden.
23. The purpose of this amendment is to provide clarity to readers and does not alter the
operation of proposed section 101N.
Amendment 14 - Schedule 3, item 2, page 59 (after line 34), at the end of subsection
101P(3)
24. This amendment would insert a note clarifying that the evidential burden of proof
would be placed upon the trustee seeking to rely on proposed subsection 101P(3). This
is due to the effect of section 154E of the Water Act which provides that a person who
seeks to rely on an exception in relation to a civil penalty provision bears an evidential
burden.
25. The purpose of this amendment is to provide clarity to readers and does not alter the
operation of proposed section 101P.
Amendment 15- Schedule 3, item 4, page 60 (before line 1), at the end of Part 5A
26. This amendment would insert proposed Division 8 titled 'Information required under
this Part and Part 7' into proposed new Part 5A of the Water Act. Proposed Division 8
would consist of new section 101Q.
27. New section 101Q would provide that if, apart from this section, a person would be
required to give the same information under both Parts 5A and 7 of the Water Act to
the Bureau, and they have given information under Part 5A, they are not required to
give the information under Part 7.
28. This is intended to avoid the duplication of information required to be given by persons
to the Bureau and to assist industry in understanding what its obligations are.
Amendment 16 - Schedule 3, item 17, page 82 (lines 11 and 12)
29. This amendment would remove the note after proposed subsection 135T(1) to avoid
confusion about the relevance of section 135T to the Bureau.
30. The note to be removed refers to subsection 215D(2) of the Water Act which provides
that the Inspector-General is not subject to direction by the Minister in relation to
certain listed matters. However, that provision is not relevant to proposed subsection
135T(1).
Amendment 17 - Schedule 4, heading, page 84 (line 4)
31. This amendment would provide for a minor technical correction to the heading of Part
1 of Schedule 4 to the Bill to correct the heading to refer to tagged water access
entitlements.
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Amendment 18 - Schedule 4, item 2, page 84 (line 13)
32. This amendment would provide for a minor technical correction to item 2 of Schedule
4 to correct proposed subsection 12.23(2) of the Basin Plan to refer to a tagged water
access entitlement.
Amendment 19 - Schedule 6, item 6, page 89 (after line 10), after paragraph 137(ba)
33. This amendment would insert proposed paragraph 137(baa) of the Water Act to clarify
the ACCC as the appropriate enforcement agency for proposed Part 10AC of the Water
Act.
34. The amendment would ensure that the ACCC is able to utilise the enforcement tools
available under Part 8 of the Water Act for proposed Part 10AC of the Water Act. This
is necessary to enable the ACCC to properly enforce the relevant functions and powers
given to them, which if not available, would undermine the integrity of the scheme.
Amendment 20 - Schedule 6, item 8, page 89 (line 21)
35. This amendment would omit 'regulations made for the purposes of Part 5' from
proposed subparagraph 156(1)(a)(ia) of the Water Act.
36. Existing subsection 156(1) of the Water Act sets out the circumstances where an
appropriate enforcement agency may give a person an infringement notice in relation
to a civil penalty provision. The effect of this amendment would clarify that an
infringement notice may not be issued in relation to any contravention of a civil penalty
provision under regulations made for the purposes of Part 5 of the Water Act. The
reference to the Water Markets Intermediaries Code at proposed subparagraph
156(1)(a)(ia) would remain.
37. This would be a technical amendment to clarify the enforcement tools available in
relation to proposed Part 5 of the Water Act.
Amendment 21 - Schedule 6, page 90 (after line 21), after item 9
38. This amendment would insert new items 9A and 9B into Schedule 6 to the Bill.
39. Item 9A would amend subparagraphs 215C(1)(a)(i) and (ii), and (b)(i) and (ii) of the
Water Act to provide that the Inspector-General's functions do not include monitoring
and providing oversight of any Commonwealth agency or Basin state agency's
performance of functions or exercise of powers under new Parts 5 and 10AC.
40. Section 215C of the Water Act provides for the Inspector-General to monitor and
provide independent oversight of the performance of functions and exercise of powers
by agencies of the Commonwealth under the Water Act, other than under specified
Parts.
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41. This amendment is intended to clarify that the Inspector-General does not have
oversight of the ACCC, any other Commonwealth agencies or Basin States agencies in
the exercise of functions or powers (including any obligation or duty) under new Parts
5 and 10AC. It does not seek to change the scope of the Inspector-General's powers and
functions in any way.
42. The ACCC would be the regulator for the integrity and conduct reforms under the Bill
(proposed Parts 5 and 10AC and proposed powers and functions in Part 8) which
would be sufficient in ensuring the Act is complied with.
43. Item 9B would amend subsection 215C(2) of the Water Act to clarify that the Inspector-
General's functions do not include monitoring and providing independent oversight of
the ACCC's performance of functions or exercise of powers under Part 8 of the Act.
44. The ACCC would provide a regulatory role in water markets in relation to monitoring
and enforcement, including proposed expanded roles under the Bill. This requires the
ACCC to be independent from other agencies to enable them to fully and effectively
carry out its functions and powers.
45. Without this amendment, the ACCC would be subject to the Inspector-General's
oversight functions under section 215C of the Water Act, including under Part 8 of the
Water Act. This may undermine the ACCC's ability to properly carry out its functions
and powers and remain an independent regulator if the Inspector-General is able to
monitor the carrying out of its functions.
Amendment 22- Schedule 6, item 10, page 92 (after line 10), after subsection 239AJ(5)
46. This amendment would insert proposed subsection 239AJ(5A) into the Water Act to
provide a civil penalty provision for the contravention of the requirement to give
information or documents in accordance with a notice issued under proposed subsection
239AJ(2). This amendment would assist the ACCC in enforcing its power under
proposed section 239AJ.
47. Proposed subsection 239AJ(5A) of the Water Act would provide that a person is liable
to a civil penalty if:
a. the person refuses or fails to comply with a notice issued under proposed subsection
239AJ(2); or
b. in purported compliance with such a notice, the person knowingly gives information
or evidence that is false or misleading.
48. A maximum civil penalty for an individual of 100 penalty units would apply. This
penalty would be necessary and proportionate to contraventions of proposed section
239AJ of the Water Act to ensure that information, documents and evidence are
provided to the ACCC.
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49. The civil penalty is consistent with the ACCC's role as the regulator of the water
markets reforms and to enable effective carrying out of its functions under proposed
section 239AJ of the Water Act.
Amendment 23 - Schedule 6, item 10, page 92 (after line 14), after subsection 239AJ(6)
50. This amendment would insert proposed subsection 239AJ(6A) into the Water Act to
provide that proposed paragraph 239AJ(5A)(a) (which provides that a person is liable
to a civil penalty for refusing or failing to comply with a notice to give information or
documents to the ACCC) does not apply to the extent that the person is not capable of
complying with the notice.
51. The note following this subsection would clarify that the evidential burden of proof
would be placed upon the person seeking to rely on this subsection. This is due to the
effect of existing section 154E of the Water Act which provides that a person who seeks
to rely on an exception in relation to a civil penalty provision bears an evidential burden.
This would be proportionate to the legitimate objective of the provision because the
defendant would have the information and knowledge that is evidence of the exception.
Amendment 24 - Schedule 6, item 10, page 92 (after line 23), after subsection 239AJ(7)
52. This amendment would insert proposed subsection 239AJ(7A) into the Water Act to
provide that proposed paragraph 239AJ(5A)(a) (which provides that a person is liable
to a civil penalty for refusing or failing to comply with a notice to give information or
documents to the ACCC) does not apply to the extent that:
a. the notice relates to producing documents; and
b. the person proves that, after a reasonable search, the person is not aware of the
documents; and
c. the person provides a written response to the notice, including a description of
the scope and limitations of the search.
Amendment 25 - Schedule 6, item 10, page 92 (lines 24 and 25)
53. This amendment would insert a reference to paragraph 239AJ(7A)(b) into proposed
subsection 239AJ(8) to clarify that when determining whether a search is reasonable
for the purposes of proposed paragraph 239AJ(7A)(b), the matters outlined in
subsection 239AJ(8) may be taken into account.
54. This would be consequential to other changes being made by these proposed
amendments.
Amendment 26 - Schedule 6, item 10, page 93 (after line 10)
55. This amendment would insert a reference to section 154E of the Water Act into the note
under proposed subsection 239AJ(9). The purpose of this amendment is to provide
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clarity to readers that a person seeking to rely on subsection 239AJ(9) as an exception
to a civil penalty provision in proposed section 239AJ would bear the evidential burden
of proof due to the effect of section 154E of the Water Act. Section 154E of the Water
Act provides that a person who seeks to rely on an exception in relation to a civil penalty
provision bears an evidential burden.
56. The purpose of this amendment is to provide clarity to readers and does not alter the
operation of proposed subsection 239AJ(9).
Amendment 27 - Schedule 6, item 10, page 93 (line 15)
57. This amendment would insert a reference to section 154E of the Water Act into the note
under proposed subsection 239AJ(10). The purpose of this amendment is to provide
clarity to readers that a person seeking to rely on subsection 239AJ(10) as an exception
to a civil penalty provision in proposed section 239AJ would bear the evidential burden
of proof due to the effect of section 154E of the Water Act. Section 154E of the Water
Act provides that a person who seeks to rely on an exception in relation to a civil penalty
provision bears an evidential burden.
58. The purpose of this amendment is to provide clarity to readers and does not alter the
operation of proposed subsection 239AJ(10).
Amendment 28 - Schedule 6, item 17, page 96 (line 1), definition of relevant agency
59. This amendment would clarify that the definition of relevant agency would be for the
purposes of proposed Part 5A of the Water Act. The purpose of this amendment is to
provide clarification only and would not alter the substantive definition of this term.
Amendment 29 - Schedule 6, page 97 (after line 15), after item 30
60. This amendment would insert new item 30A into Schedule 6 to the Bill to amend
subparagraphs 215C(1)(a)(i) and (ii), and (b)(i) and (ii) of the Water Act to provide that
the Inspector-General's functions do not include monitoring and providing oversight of
any Commonwealth agency or Basin state agency's performance of functions or
exercise of powers under Part 5A.
61. Section 215C of the Water Act provides for the Inspector-General to monitor and
provide independent oversight of the performance of functions and exercise of powers
by agencies of the Commonwealth under the Water Act.
62. This amendment is intended to clarify that the Inspector-General does not have
oversight of the ACCC or any other Commonwealth agencies or Basin States agencies
in the exercise of functions or powers (including any obligation or duty) under these
Parts. It does not seek to change the scope of the Inspector-General's powers and
functions in any way
10
63. The ACCC would be the enforcement agency for the integrity and conduct reforms
under the Bill (proposed Part 5A)) which would be sufficient in ensuring the Act is
adhered to.
64. The ACCC has been given new functions and powers in the Bill under proposed Part
5A of the Water Act that would be subject to the Inspector-General's oversight
functions under section 215C. This may undermine the ACCC's ability to properly
carry out its functions and powers and remain an independent regulator if the Inspector-
General is able to monitor the carrying out of its functions.
Amendment 30- Schedule 6, page 98 (line 2), heading to Part 3
65. This amendment would update the heading of Part 3 of Schedule 6 to the Bill to better
reflect the content of this Part. This would be consequential to other changes being
made by these proposed amendments.
Amendment 31 - Schedule 6, page 99 (after line 12), after item 41
66. This amendment would insert new item 41A into Schedule 6 to the Bill to amend
section 215Y of the Water Act. New item 41A would insert new subsection 215Y(3) to
provide that the Minister must cause a copy of each annual report of the Inspector-
General to be tabled in each House of the Parliament within 15 sitting days of that
House after the Minister receives the report from the Inspector-General.
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ATTACHMENT
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Amendments to the Water Amendment (Restoring Our Rivers) Bill 2023
The proposed amendments to this Bill are compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the amendments
The proposed amendments to the Water Amendment (Restoring Our Rivers) Bill 2023 (the
Bill) would amend the Water Act 2007 (the Water Act) and the Basin Plan 2012 (the Basin
Plan) to:
• strengthen transparency and accountability in the Basin Plan, including in relation to
the Inspector-General of Water Compliance's (Inspector-General) powers;
• ensure the Australian Competition and Consumer Commission (ACCC) can enforce its
new information gathering power in the Bill, by making the ACCC the appropriate
enforcement agency for the power and by adding a civil penalty provision for
contraventions;
• ensure that the Inspector-General does not have oversight of any Commonwealth
agencies or Basin State agencies, including the ACCC, with regard to any obligations
under the integrity and conduct reforms; and
• make minor and technical amendments in response to feedback from the
Commonwealth and Basin State agencies, and to ensure the Bill would operate as
intended.
Human rights implications
The proposed amendments engage the following rights:
• Right to a fair trial and hearing (Article 14(1) of the International Covenant on Civil
and Political Rights (ICCPR)); and
• Right to the presumption of innocence (Article 14(2) of the ICCPR).
Right to a fair trial and hearing
Article 14(1) of the ICCPR guarantees the right to a fair trial and hearing in relation to both
criminal and civil proceedings.
12
The proposed amendments would insert a civil penalty provision into section 239AJ of the
Water Act (as proposed by the Bill) to provide that a person contravenes that section if the
person:
• refuses or fails to comply with a notice under subsection 239AJ(2); or
• in purported compliance with such a notice, knowingly gives information or evidence
that is false or misleading.
The maximum civil penalty that may be imposed is 100 penalty units.
As discussed in the Guidance Note 2: Offence provisions, civil penalties and human rights
published by the Parliamentary Joint Committee on Human Rights, civil penalty provisions
may engage criminal process rights under Article 14 of the ICCPR, regardless of the distinction
between criminal and civil penalties in domestic law. When a provision imposes a civil penalty,
an assessment is required as to whether it amounts to a criminal penalty for the purposes of
Article 14 of the ICCPR.
Determining whether penalties could be considered as criminal penalties under international
human rights law requires consideration of the classification of the penalty provisions under
Australian domestic law, the nature and purpose of the penalties, and the severity of the
penalties.
The civil penalty provision expressly classifies the penalty as a civil penalty. The purpose of
the civil penalty is to encourage compliance and increase the flexibility for enforcement of this
power by the ACCC to provide for the effective operation of the new framework. The civil
penalty provisions would not impose criminal liability and a finding by a court that they have
been contravened would not lead to the creation of a criminal record.
Right to the presumption of innocence
Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have
the right to be presumed innocent until proven guilty according to law. The right to the
presumption of innocence is also a fundamental common law principle.
Laws which shift the burden of proof to a defendant, can be considered a limitation of the
presumption of innocence. This is because a defendant's failure to discharge a burden of proof
or prove an absence of fault may permit their conviction despite reasonable doubt as to their
guilt. This includes where an evidential or legal burden of proof is placed on a defendant.
The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement
Powers notes that placing the burden on the defendant should be limited to circumstances
where the matter is peculiarly within the knowledge of the defendant and where it is
significantly more difficult and costly for the prosecution to disprove than for the defendant to
establish the matter.
The proposed amendments do not alter the reversal of the evidential burden of proof that
already exists under section 154E of the Water Act, however amendments 6, 7, 8, 12, 13 and
14 would insert a note, while amendments 25 and 27 would amend proposed notes in the Bill,
clarifying that section 154E applies to the relevant sections. The intention of these notes is to
13
provide clarification for readers and does not change the operation of those relevant sections
of the Bill.
Section 154E of the Water Act operates so that if a person wishes to rely on an exception,
exemption, excuse, qualification or justification, that person bears an evidential burden in
relation to that matter.
Proposed subsections 100ZH(3), 100ZJ(3), 100ZK(3), 101M(3), 101N(3) and 101P(3) of the
Water Act (as proposed by the Bill) would provide excuses where a trustee, partner or a
member of an unincorporated association's committee of management (as relevant) does not
know of the circumstances that constitute the contravention of the provision concerned or
knows of those circumstances but takes all reasonable steps to correct the contravention as soon
as possible after the trustee, partner or member becomes aware of those circumstances.
Similarly, amendment 23 would provide proposed paragraph 239AJ(5A)(a) at amendment 22
(which provides that a person is liable to a civil penalty for refusing or failing to comply with
a notice to give information or documents to the ACCC) does not apply to the extent that the
person is not capable of complying with the notice
The reversal is justified in these instances as the elements of the offences are necessary to
achieve the legitimate objective of ensuring the objects of the Water Act are met and because
the evidence of the exceptions would be peculiarly in the knowledge or possession of the
defendant.
These provisions are proportionate to the legitimate objective because the defendant would
have the information or knowledge that is evidence of the exceptions.
Conclusion
The amendments are compatible with human rights because to the extent that it limits human
rights, those limitations are reasonable, necessary and proportionate.
(Circulated by authority of the Minister for the Environment and Water,
the Hon. Tanya Plibersek MP)
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