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

Commonwealth of Australia Explanatory Memoranda

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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 WATER LEGISLATION AMENDMENT (INSPECTOR-GENERAL OF WATER COMPLIANCE AND OTHER MEASURES) BILL 2021 EXPLANATORY MEMORANDUM (Circulated by authority of the Minister for Resources, Water and Northern Australia, the Hon. Keith Pitt MP)

TABLE OF CONTENTS GLOSSARY 1 OUTLINE 3 FINANCIAL IMPACT STATEMENT 4 CONSULTATION 4 STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS 5 NOTES ON CLAUSES 17 Clause 1: Short title 17 Clause 2: Commencement 17 Clause 3: Schedules 17 Schedule 1--Amendments to the Water Act 2007 18 Part 1--Management of Basin Water Resources 18 Part 2--Compliance and Enforcement 37 Part 9A--Inspector-General of Water Compliance (administrative provisions) 57 Part 10AA--Inspector-General of Water Compliance (special powers) 79 Part 10AB--Inspector-General of Water Compliance (inquiry powers) 102 Part 3--Transitional Provisions 110 Schedule 2--Amendment of the Basin Plan 2012 115 Schedule 3--Other amendments of the Water Act 2007 118 i

GLOSSARY The following abbreviations and terms are used in this Explanatory Memorandum: Abbreviation Definition Authority Murray-Darling Basin Authority as established by section 171 of the Water Act 2007 Basin Compliance Compact Australian Government, New South Wales, Victoria, Queensland, South Australia, Australian Capital Territory, Murray-Darling Basin Compliance Compact (2018) Basin Plan Basin Plan 2012 adopted by the Minister under section 44 of the Act (as amended from time to time) Basin State New South Wales; Victoria; Queensland; South Australia; the Australian Capital Territory Bill Water Legislation Amendment (Inspector-General of Water Compliance and Other Measures) Bill 2021 Biodiversity Convention Convention on Biological Diversity, as defined in section 4 of the Water Act 2007 Commonwealth Guide Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers published by the Attorney- General's Department Compliance Review Murray-Darling Basin Authority (2017) Murray-Darling Basin Water Compliance Review: Containing reports by the Murray- Darling Basin Authority and the Independent Review Panel Department Department administered by the Minister administering the Water Act 2007 IGMDB Interim Inspector-General of the Murray-Darling Basin Water Resources Inspector-General Inspector-General of Water Compliance Minister Minister administering the Water Act 2007 Productivity Commission Productivity Commission 2018, Murray-Darling Basin Plan: Final Report Five-year assessment, Final Report no. 90, Canberra Ramsar Convention Convention on Wetlands of International Importance especially as Waterfowl Habitat done at Ramsar, Iran, on 2 February 1971 Scrutiny of Bills Committee Senate Standing Committee for the Scrutiny of Bills Sixth Report 6th Report of 2002: Application of Absolute and Strict Liability Offences in Commonwealth Legislation SDL sustainable diversion limits Secretary Secretary of the Department administered by the Minister administering the Water Act 2007 water charge rules water charge rules as defined in section 4 of the Water Act 2007 1

Abbreviation Definition water market rules water market rules as defined in section 4 of the Water Act 2007 WRP water resource plan 2

WATER LEGISLATION AMENDMENT (INSPECTOR-GENERAL OF WATER COMPLIANCE AND OTHER MEASURES) BILL 2021 OUTLINE The Water Legislation Amendment (Inspector-General of Water Compliance and Other Measures) Bill 2021 (the Bill) would amend the Water Act 2007 (the Act) to establish the role of an independent Inspector-General of Water Compliance (Inspector-General) to monitor, and provide independent oversight of, water compliance. The Act provides the legislative and regulatory framework for the management of the Murray-Darling Basin, Australia's largest water resource. The Act enables the Commonwealth to manage, in conjunction with the Basin States, the Murray-Darling Basin resources in the national interest. The Inspector-General would be appointed by the Governor-General and conferred with the existing compliance functions and powers of the Murray-Darling Basin Authority (Authority). The Inspector-General would also replace, and assume the independent assurance functions of, the non-statutory Interim Inspector-General of Murray-Darling Basin Water Resources (IGMDB). The amendments contained within the Bill respond in part to recommendations made in the 2017 Murray-Darling Basin Water Compliance Review (Compliance Review) conducted by the Authority and an independent panel. The Compliance Review recommended amendments to provide a more comprehensive suite of powers and sanctions, including evidentiary provisions and criminal offence provisions. The Bill also implements the Australian Government's commitment to strengthen compliance and enforcement powers made as part of the Murray-Darling Basin Compliance Compact (Basin Compliance Compact), that was jointly agreed by the Council of Australian Governments in December 2018. This commitment responds to the Compliance Review recommendation. The establishment of an independent statutory Inspector-General with compliance and enforcement powers responds to recommendations made by the Productivity Commission's 2018 Murray-Darling Basin Plan: Five-year assessment, Inquiry Report (Productivity Commission Final Report). The Productivity Commission Final Report recommended structural reform to separate the Authority's implementation of the Basin Plan and the Authority's compliance role. As a result of the recommendations, the Inspector-General's functions would include monitoring and providing independent oversight of Commonwealth agencies in the performance of their functions and exercise of their powers under the Act, regulations and other legislative instruments made under the Act, the Basin Plan and water resource plans (WRPs). The Inspector-General's functions would also include oversight of Basin State agencies in relation to their obligations in the management of Basin water resources. These functions would be supported by new inquiry powers and the power to issue guidelines and standards. The power to undertake audits would be transferred from the Authority to the Inspector-General to support strategic and proactive identification of compliance issues. 3

Compliance powers and functions held by the Authority would be transferred to the Inspector-General and updated to promote consistency with standard Commonwealth regulatory power provisions. The Bill also proposes new offence and civil penalty provisions for unlawful conduct relating to the take of water and new civil penalties for conduct relating to trading of water rights. As conduct relating to the take of water would also be the subject of Basin State laws, the Bill would require the Inspector-General to notify the appropriate agency of the State before taking certain action. The intent is for the Commonwealth to have the ability to take certain action where the relevant Basin State is unable or unwilling to do so. FINANCIAL IMPACT STATEMENT A budget of $38.745 million was announced in September 2020 through to 2024, to improve Commonwealth water compliance through the establishment of the Inspector-General. This includes:  $3.8 million to establish the Inspector-General and the Office of the Inspector-General of Water Compliance;  $30.4 million to fund the continuation of the compliance functions that the MDBA currently undertakes (functions now being transferred to the Inspector-General);  $2.2 million for on-going assurance and oversight (beyond 2022/23); and  $2.3 million independent legal cost for compliance and assurance activity. This funding is in addition to the budget provided for assurance and oversight functions of the former Inspector-General of Murray-Darling Basin Water Resources of $7.6 million, through to 2023. CONSULTATION Exposure drafts of the Bill were released for consultation with Basin States in December 2020 and April 2021. Further consultation with Basin States ensued from December 2020 onwards. Consultation also occurred with appropriate Commonwealth agencies, including: the Department of the Prime Minister and Cabinet; the Department of Finance, the Department of Home Affairs, the Attorney General's Department; the Australian Public Service Commission, the Murray-Darling Basin Authority; the Commonwealth Environmental Water Holder; the Bureau of Meteorology; the Commonwealth Director of Public Prosecutions (the CDPP); the Australian Competition and Consumer Commission (ACCC) and the Productivity Commission. 4

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Water Legislation Amendment (Inspector-General of Water Compliance and Other Measures) Bill 2021 (the Bill) Overview of the Bill The purpose of the Bill is to amend the Water Act 2007 (the Act) to establish the role of an independent Inspector-General of Water Compliance (Inspector-General) to monitor, and provide independent oversight of, water compliance. The Act provides the legislative and regulatory framework for the management of the Murray-Darling Basin, Australia's largest water resource. The Act enables the Commonwealth to manage, in conjunction with the Basin States, the Murray-Darling Basin resources in the national interest. The Inspector-General would be appointed by the Governor-General and conferred with the existing compliance functions and powers of the Murray-Darling Basin Authority (Authority). The Inspector-General would also replace, and assume the independent assurance functions of, the non-statutory Interim Inspector-General of Murray-Darling Basin Water Resources (IGMDB). The amendments contained within the Bill respond in part to recommendations made in the 2017 Murray-Darling Basin Water Compliance Review (Compliance Review) conducted by the Authority and an independent panel. The Compliance Review recommended amendments to provide a more comprehensive suite of powers and sanctions, including evidentiary provisions and criminal offence provisions. The Bill also implements the Australian Government's commitment to strengthen compliance and enforcement powers made as part of the Murray-Darling Basin Compliance Compact (Basin Compliance Compact), that was jointly agreed by the Council of Australian Governments in December 2018. This commitment responds to the Compliance Review recommendation. The establishment of an independent statutory Inspector-General with compliance and enforcement powers responds to recommendations made by the Productivity Commission's 2018 Murray-Darling Basin Plan: Five-year assessment, Inquiry Report (Productivity Commission Final Report). The Productivity Commission Final Report recommended structural reform to separate the Authority's implementation of the Basin Plan and the Authority's compliance role. The Inspector-General's functions would include monitoring and providing independent oversight of Commonwealth agencies in the performance of their functions and exercise of their powers under the Act, regulations and other legislative instruments made under the Act, the Basin Plan and water resource plans (WRPs). The Inspector-General's functions would also include oversight of Basin State agencies in relation to their obligations in the management of Basin water resources. These functions would be supported by new inquiry powers and the power to issue guidelines and standards. The power to undertake audits would be transferred from the Authority to the Inspector-General to support strategic and proactive identification of compliance issues. Compliance powers and functions held by the Authority would be transferred to the Inspector-General and updated to ensure consistency with standard Commonwealth 5

regulatory power provisions. Provisions that relate to civil penalties, infringement notices, investigations and enforcement in the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act) have been mirrored throughout the Bill, with appropriate modifications where necessary to reflect the unique operating environment. The Bill also proposes new offence and civil penalty provisions for unlawful conduct relating to the take of water and new civil penalties for conduct relating to trading of water rights. As conduct relating to the take of water would also be the subject of Basin State laws, the Bill would require the Inspector-General to notify the appropriate agency of the State before taking certain action. The intent is for the Commonwealth to have the ability to take certain action where the relevant Basin State is unable or unwilling to do so. Human rights implications The Bill engages, or has the potential to engage, the following rights:  Article 14(1) of the International Covenant on Civil and Political Rights (the ICCPR) - the right to a fair trial and fair hearing;  Article 14(2) of the ICCPR - the right to the presumption of innocence;  Article 17 of the ICCPR - the right to freedom from arbitrary interference with privacy; and  Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) - the right to an adequate standard of living and the right to health (together interpreted to include 'the right to water'). Right to a fair trial and fair hearing Article 14(1) of the ICCPR guarantees the right to a fair trial and fair hearing in relation to both criminal and civil proceedings. Civil penalty provisions The Bill would insert new civil penalty provisions relating to, for example:  contraventions of laws relating to taking water when not permitted under a State law and for contraventions of the Basin Plan;  failing to comply with an enforcement notice;  obstructing an authorised officer of the Authority or an authorised compliance officer of the Inspector-General in performing their functions, duties or exercise of powers; and  failing to comply with a requirement to provide specified compellable information. Civil penalty provisions may, in some circumstances, be regarded as criminal in nature and therefore engage criminal process rights under Articles 14 and 15 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 the ICCPR, so that an assessment can be made as to whether the provision is consistent with the requirements of the ICCPR. Determining whether penalties could be considered criminal 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. 6

The civil penalty provisions of the Bill would expressly classify the penalties as civil penalties. Those provisions create solely pecuniary penalties in the form of a debt payable to the Commonwealth. The purpose of these penalties would be to encourage compliance with the Basin Plan, WRPs, the Act, and the workings of the Authority and the Inspector-General. 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. The civil penalties, by their nature, would generally only apply to persons that take water from the Murray-Darling Basin or have a professional role with respect to the Murray- Darling Basin, rather than the public in general. Further, many of the civil penalty provisions introduced by this Bill exist alongside fault-based offences, offering the appropriate enforcement agency flexibility in deciding whether to initiate a civil or criminal action. These factors all suggest that the civil penalties imposed by the Bill are civil rather than criminal in nature. The maximum penalties that may be imposed by civil penalty orders are typically between 100 and 600 penalty units. The penalties are higher for water take contraventions under sections 73A and 73B, where penalties for individuals range from 1,000 to 5,000 penalty units, and for body corporates the range is 10,000 to 50,000 penalty units. The penalties are also higher for contraventions of the proposed 'insider-trading' civil penalty provision in section 73H, where the maximum civil penalty for individuals is 1,000 penalty units, and for body corporates the maximum penalty is 10,000 penalty units. These higher penalties reflect the more serious consequences of a contravention. Section 147 of the Bill provides that the body corporate five times multiplier rule set out in 3.1.4 of the Commonwealth Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Commonwealth Guide) applies unless a different amount in the civil penalty provision is explicitly stated. For example, as noted above the penalty range for contraventions of sections 73A, 73B and 73H are higher given the serious implications of the offending. These civil pecuniary penalties for the proposed civil penalty provisions in the Bill have been set by reference to the Commonwealth Guide. Where the civil penalties are significantly higher than recommended by the Commonwealth Guide, being the water take contraventions at sections 73A and 73B and trading contravention at section 73H, these penalties reflect the seriousness of the contravening conduct. In relation to contraventions of sections 73A and 73B, these penalties recognise that the taking of water when not permitted could result in significant detriment to Basin water resources and without such deterrence the integrity of water sharing arrangements in the Basin would be undermined. These penalties may still be distinguished from a criminal penalty as the sections provide for a criminal penalty in the alternative, with imprisonment from 3 to 5 years or a penalty of 180 to 300 penalty units, or both. In relation to contraventions of section 73H, the penalty recognises that conduct akin to 'insider-trading' could result in significant financial gain for the person engaging in that conduct and so should be subject to a maximum penalty sufficient to deter such conduct. This penalty also recognises that conduct of this nature can undermine the integrity of the water trading market, and public confidence in those markets. 7

In light of the matters discussed above, the civil penalties provided for by the Bill would not amount to a criminal penalty for the purposes of the ICCPR, so criminal process rights provided for by Articles 14 and 15 of the ICCPR are not engaged by the provisions of the Bill relating to civil penalties. Right to a fair trial - infringement notices Sections 156 to 159 mirror some of the infringement notice provisions in Part 5 of the Regulatory Powers Act, being parts of section 103, and sections 104 to 106. The existing infringement notice scheme under the Act provides for the appropriate enforcement agency, being now either the Inspector-General, the Australian Competition and Consumer Commission (ACCC) or the Minister directly, to issue an infringement notice if the appropriate enforcement agency has reasonable grounds to believe that a civil penalty provision set out in the water charge or water market rules, in Part 7 of the Act, or otherwise referred to in regulations made, has been contravened. This mirroring of parts of the infringement notice provisions of the Regulatory Powers Act supplement and improve the existing infringement notice scheme provided by the Act. The Bill does modify subsections 103(3)-(4) of the Regulatory Powers Act when mirroring the language in subsections 156(3)-(4) of the Bill, but only to provide that infringement notices made under section 156 only concern civil penalty provisions, and so do not need to take into account how to deal with criminal offence provisions. The mirrored provisions at sections 157 to 159, which mirror sections 104 to 106 of the Regulatory Powers Act, otherwise provide standard provisions as to the content of an infringement notice, payment, extensions of time and withdrawal of an infringement notice. An infringement notice issued under section 156 of the Act would be a notice of a pecuniary penalty imposed on a person. It will set out the particulars of an alleged contravention of a law. An infringement notice gives the person to whom the notice is issued the option of paying the penalty set out in the notice or electing to have the matter dealt with by a court. If the person does not pay the amount in the notice, proceedings for a civil penalty order may be brought against them. This engages the right to a fair and public hearing and the minimum guarantees in Article 14 of the ICCPR. As the person may elect to have the matter heard by a court, rather than pay the penalty, the rights to a fair and public hearing are not limited. These mirrored provisions do not limit the minimum guarantees provided for by Article 14 of the ICCPR. Accordingly, the infringement notice provisions under sections 156 to 159 of the Bill are compatible with the right to a fair and public trial. Right to the presumption of innocence Article 14(2) of the ICCPR ensures that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty accordingly to law. The right to presumption of innocence is also a fundamental common law principle. 8

Strict liability Strict liability offences engage and limit the presumption of innocence as they allow for the imposition of criminal liability without the need to prove fault. However, strict liability will not necessarily be inconsistent with the presumption of innocence, provided that it pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. Importantly, the defence of mistake of fact is still available to the defendant and the existence of strict liability does not make any other defence unavailable. Section 166 applies strict liability to an offence relating to the contravention of an enforcement notice. This strict liability offence has a maximum penalty of 30 penalty units. The effect of strict liability applying to this offence would be that the prosecution would only need to prove the physical element that the circumstances existed; that is, that the person was given an enforcement notice and the person failed to comply with that notice. Requiring proof of fault would undermine the effectiveness of the offence. The application of strict liability is justified for this offence considering the need to enforce compliance of the implementation of the Basin Plan and WRPs, especially where the maximum penalty for the offence of 30 penalty units is relatively low. Strict liability also applies to the offence of failing to return an identity card after ceasing to be an authorised officer or authorised compliance officer at sections 218 and 222H, which has a maximum penalty of 1 penalty unit. Strict liability is appropriate because the offence is minor in nature and requiring proof of fault would undermine the effectiveness of the offence. It is important to ensure that identity cards do not remain with persons who are not authorised to use them, given the inappropriateness of allowing a person to purport to be authorised to exercise the extensive powers attached to an authorised officer or authorised compliance officer. Sections 218 and 222H further provide an appropriate defence which the defendant could rely upon (the offence does not apply if the identity card is lost or destroyed). Application of strict liability to these offences has been set with consideration given to the guidelines regarding the circumstance in which strict liability is appropriate as set out in the Commonwealth Guide. The penalties for these strict liability offences (sections 166, 218 and 222H) do not include imprisonment, and do not exceed 60 penalty units for an individual. Further, the Bill extends strict liability to particular elements of water take offences under sections 73A and 73B. This is necessary to ensure the integrity of the regulatory regime, and to overcome issues with proving fault for all elements of these offences, which would require proving:  that a person was aware a WRP was in place; and  that a person was aware that the taking of water contravened the law of a State. Applying strict liability to these elements means that a prosecution would only be required to prove the physical element for those elements of the water take offences. Consistent with the Commonwealth Guide, the use of strict liability regarding these elements is justified. Firstly, requiring proof of fault in relation to these physical elements would mean that the offence would have additional barriers to being effectively prosecuted. These physical elements would be elements that have a factual basis, that would be easily discoverable and available to the general public. The defendant would be well-placed to 9

know whether a WRP applied to the water resource, and similarly whether the taking of water would constitute a potential State contravention; however the prosecution would have difficulty adducing evidence about the defendant's knowledge or lack of knowledge. Secondly, there is merit in applying strict liability for these elements to ensure the integrity and efficacy of a regulatory scheme that aims to protect Basin water resources; the mistake of fact defence would still be available for the physical elements. Although strict liability would apply to these physical elements, the existence of this strict liability would not make any other defence unavailable. The defence of mistake of fact under section 9.2 of the Criminal Code Act 1995 (Criminal Code) would still be available in relation to the physical elements. This is in line with the guidance at 2.2.6 of the Commonwealth Guide. Reversal of the burden of proof Laws which shift the burden of proof to a defendant, commonly known as 'reverse burden provisions', can be considered a limitation of the presumption of innocence because a defendant's failure to discharge a burden of proof or prove an absence of fault may permit their conviction. When a defendant bears an evidential burden in relation to an exception it means that the defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the exception has been met. It is then up to the prosecution to establish that this exception does not apply. Reverse burden offences will not necessarily be inconsistent with the presumption of innocence provided that the reverse burden pursues a legitimate objective and is reasonable, necessary and proportionate to achieving that objective. Whether a reverse burden provision impermissibly limits the right to the presumption of innocence will depend on the circumstances of the case and the particular justification for the reverse burden. The Commonwealth Guide notes that placing the burden of proof on the defendant should be limited to 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. An additional factor to consider is whether the offences only impose an evidential burden (that is, where the prosecution must still disprove the matters beyond reasonable doubt if the defendant discharges the evidential burden). The Bill may operate to limit the right to be presumed innocent through imposing an evidential burden on the defendant in relation to a range of matters. Sections in which an evidential burden is imposed on the defendant are outlined below. Sections 73A and 73B include offences for which an exception applies if an exception, exemption, excuse, qualification or justification provided by a law of a State applies in relation to the potential contravention. The reversal is justified in these instances as it is necessary elements of the offences in order to achieve the legitimate objective of ensuring the objects of the Act are met because the evidence of the exception (that they were authorised by law of the relevant State to undertake the conduct) would be peculiarly in the knowledge or possession of the defendant. Sections 73F, 73G, 222D, 238, 239AC and 239AD include offences for which an exception applies if the person has a reasonable excuse. The defendant would bear the evidential burden of proving any exception. This is necessary in order to achieve the legitimate objective of 10

ensuring the Basin Plan is complied with, with respect to the trading of water access rights, and ensuring the Inspector-General is provided with information when requested from a person. These sections are reasonable and proportionate to the legitimate objective because the defendant will exclusively have the information or knowledge that is evidence of the exception, being their reasonable excuse for not having complied with their requirements under the Basin Plan, or why they cannot provide the Inspector-General with information when requested. Section 238 also creates an exception that allows a person not to be subject to an offence for failing to provide compellable information if that information might tend to incriminate the person or expose the person to a penalty. This exception affirms a person's right to be protected from self-incrimination. The defendant would bear the evidential burden of proving any exception. This section is proportionate to the legitimate objective because the information or knowledge that is evidence of the exception will be particularly within the possession of the defendant (that compellable information that they would otherwise be required to provide would incriminate them or expose them to a penalty). Section 73H creates a civil penalty for contravening subsection 12.51(2) of the Basin Plan, which provides that a person must not take a prohibited action, or procure another person to take such an action, in relation to any water access right whose price or value could reasonably be expected to be materially affected by water announcements that are not generally available. Actions include entering into a contract to trade or applying to an approval or registration authority in relation to the trade. An exception applies under section 12.52 of the Basin Plan if an agency has established ethical wall arrangements regarding water announcements. Section 73H places an evidential burden on the defendant in relation to relying on this exception. This is necessary to achieve the legitimate objective of ensuring the integrity of water announcement information and the trading of water access rights. This section is proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of the exception (that they had an ethical wall arrangement in place). Sections 218 and 222H mirror sections 35 and 76 of the Regulatory Powers Act, in creating offences where a person fails to return an identity card in the prescribed circumstances. The defendant bears the evidential burden of proving the exception that the identity card was lost or destroyed. It is necessary that the defendant bears the evidential burden in this section in order to achieve the legitimate purpose of preventing identity cards from being obtained and used by unauthorised persons. This section is reasonable and proportionate to the legitimate objective because the defendant will have the information or knowledge that is evidence of this exception, and also because the penalty for this offence is low (one penalty unit). Sections 154D and 154E mirror sections 95 and 96 of the Regulatory Powers Act in providing that, in proceedings for a pecuniary penalty order against a person for contravention of a civil penalty provision, if a person wishes to rely on any mistake of fact exception to the civil penalty provision, or any other 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. This is necessary to achieve the legitimate objective of ensuring the integrity of the Act's civil penalty regime and align it with Commonwealth best practice in mirroring provisions of the Regulatory Powers Act. These provisions are proportionate to the legitimate objective because the defendant will have 11

the information or knowledge that is evidence of the exception (that they had a mistaken but reasonable belief about facts, or if any other exception applies). The right to freedom from interference with privacy Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, and protects a person's honour and reputation from unlawful attacks. This right may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. Non-arbitrary limitations must seek to achieve a legitimate objective, and be reasonable, necessary and proportionate to this purpose. Use and disclosure of information Sections 215A and 215UA engage Article 17, as they authorise the disclosure of information. Section 215A authorises disclosure of information from the Authority to the Minister, or the Secretary or an officer or employee of the Department for the purpose of advising the Minister. Section 215UA authorises disclosure of information from the Inspector-General for the same purpose, as well as authorising the disclosure of information from the Inspector- General to the Authority in connection with the performance of the functions or exercise of the powers of the Authority. Although this information may include personal information, the power to disclose is reasonable and necessary to allow standard processes of oversight and accountability, and to assist the Authority in performing its functions. There are appropriate safeguards in place as the Bill explicitly provides that disclosure of information under these powers is authorised disclosure, at subsection 215U(4) and subsection 215UA(4). Any unauthorised disclosure beyond these powers would be prohibited by section 122.4 of the Criminal Code, which creates a criminal offence that prohibits unauthorised disclosure of information by current and former Commonwealth officers. This power to disclose under sections 215A and 215UA is only for the purpose of informing or advising the Minister, which serves the legitimate objective of providing accountability and oversight and is reasonable, necessary and proportionate to achieving that objective. This power to disclose information therefore does not constitute an arbitrary interference with the right to privacy. Section 215UB engages Article 17, as subsection 215UB(2) authorises the use or disclosure of information to enforcement bodies to facilitate enforcement-related activities. The Inspector-General can only disclose information to an enforcement body if the Inspector- General reasonably believes that the disclosure is reasonably necessary or directly related to one or more enforcement-related activities of the enforcement body. Although this information may include personal information, the power to disclose is limited, in that it must be reasonably necessary or related to enforcement-related activities. This serves a legitimate objective in assisting with the wider enforcement and integrity of State and Commonwealth laws, and does not constitute an arbitrary interference with the right to privacy. Subsection 215UB(3) further allows for disclosure to a Commonwealth or State agency, but is limited in that the disclosure must relate to administration of a law that applies to the management of Basin water resources, thus limiting the disclosure power directly to the subject matter within the Inspector-General's remit. 12

Section 215UC engages Article 17, in authorising another agency of the Commonwealth or their staff to disclose information to the Inspector-General for the purposes of facilitating the performance of the Inspector-General's functions or the exercise of their powers. This section serves a similar role to Section 215UB, in creating a framework for the Inspector-General to share information with external agencies when necessary, and to be able to receive it in turn. This recognises that the Inspector-General's functions and powers would likely have a shared subject matter with other Commonwealth agencies. Information sharing between agencies may assist both the Inspector-General and other agencies in performing their functions and powers in enforcing the law, but is appropriately limited in creating a nexus, for the purposes of section 215UC, that the disclosure must concern the Inspector-General's functions or exercise of powers. Further, section 215UD provides that for the purposes of subsections 215UA(1), (2) and (3), where an individual voluntarily provides information to the Inspector-General and requests to remain anonymous, the Inspector-General cannot include material identifying the individual, or that could be used to identify the individual. Sections 73L and 73M engage with Article 17, as these provisions require the publication of audit reports and the publication of responses prepared for audit reports. Although the content of these audit reports will vary depending on the nature of the audit, the findings of the audit and the recommendations arising from the audit, it is possible that persons or bodies would be identified or referred to, as the audits concern the extent of compliance with the Basin Plan and WRPs. Prior to publication, any person or body to which the audit relates is provided with an opportunity to comment on the proposed findings and recommendations. This provides a safeguard regarding any interference with privacy, as it allows a person or body named in an audit report an opportunity to respond to potentially negative findings and recommendations that would be published publicly. Monitoring, investigation and audit powers Part 10 (which is amended by the Bill) and new Parts 10AA and 10AB of the Act engage Article 17, as they concern the ability of authorised officers and authorised compliance officers to enter a person's premises; and the powers of the Authority and the Inspector- General to require persons to give specified compellable information. The Bill's monitoring and investigation provisions mirror provisions in the Regulatory Powers Act. The Bill departs from the wording of the Regulatory Powers Act to take into account the streamlined function of authorised compliance officers executing both investigation and monitoring warrants; to accommodate the operation of the Bill's designated compliance provisions; and recognising that officers may deal with specialised equipment on the premises when executing warrants. The Bill protects against arbitrary abuses of power as the entry, monitoring, search, seizure and information gathering powers it provides may only be exercised where either consent has been given by the occupier of the premises or where authorised by a warrant. The Bill places limits on authorised officers of the Authority. 13

Section 219 provides that an authorised officer of the Authority is limited to entering premises only when they reasonably believe it is necessary for the performance of the Authority's functions. Further, this power of entry is limited by the consent requirements of section 220, excepting in cases of emergency. Subsection 220(1) provides that an authorised officer must show their identity card to the occupier of the premises and provide the occupiers a written statement of their rights and obligations regarding the entry onto the premises. Subsection 220(3) provides that, where entry is based on the consent of the occupier, consent must be informed. Subsection 220(4) provides that, where entry is based on the consent of the occupier, if the occupier withdraws their consent then authorised officers, and any persons assisting them, must leave the premises. There are similar limits placed on the powers of authorised compliance officers of the Inspector-General, ensuring that their use is not arbitrary. Section 223 mirrors the language of sections 18 and 19 of the Regulatory Powers Act, limiting an authorised compliance officer's power to enter premises to determining whether a designated compliance provision has been, or is being, complied with, or if information given in compliance with a designated compliance provision is correct. Entry is similarly limited to require consent of the occupier or requiring an investigation (section 224) or monitoring (section 223) warrant. Sections 225 and 226 specify that a warrant to enter premises for the purpose of monitoring or investigation must be issued by a magistrate. Subsections (4) of these respective provisions provide for the content of these warrants, which mirrors the language of sections 32 and 70 of the Regulatory Powers Act. These sections also provide limits on the issuing of a monitoring or investigation warrant. In the case of an investigation warrant, for example, section 226 specifies that a magistrate may issue an investigation warrant only when satisfied, by oath or affirmation, that there are reasonable grounds for suspecting that there is, or may be within the 72 hours, evidential material on the premises. For an investigation or monitoring warrant, a magistrate must not issue a warrant unless the magistrate has been provided, either orally or by affidavit, with such further information as they require concerning the grounds on which the issue of the warrant is being sought. Such constraints on this power ensure adequate safeguards against arbitrary limitations on the right to privacy in the issuing of warrants. Section 230 mirrors the language of sections 26 and 56 of the Regulatory Powers Act, providing further protections against the arbitrary use of this power of entry. Where the authorised compliance officer seeks to enter premises under a monitoring or investigation warrant, the authorised compliance officer must announce that they are authorised to enter the premises, show their identity card to the occupier of the premises and give any person at the premises the opportunity to allow entry to the premises. The authorised compliance officer must also provide a copy of the warrant to the occupier of the premises. This provides for the transparent utilisation of the Bill's warrant powers. Section 230 provides that an authorised compliance officer may dispense with these requirements in limited circumstances when executing an investigation warrant, consistent with the equivalent provisions for investigation warrants in section 56 of the Regulatory Powers Act; or to prevent serious damage to the environment. This allows flexibility in 14

serious situations but does not undermine the importance of identification. The authorised person is still obliged to provide identification as soon as practicable after entry, if possible. These powers are reasonable, necessary and proportionate to assist authorised compliance officers in investigating breaches or purported breaches of designated compliance provisions. Adequate safeguards and limitations on the use of powers of entry in the Bill ensure that such lawful interferences are not arbitrary or at risk of abuse. Compellable information The proposed amendments at sections 222D and 238 provide the Authority and the Inspector- General with the power to require persons to give specified compellable information and create offences and civil penalties if persons fail to comply. These provisions are not arbitrary or unlawful interference with or infringement upon a person's right to privacy, being limited by the matters listed in the respective provisions. These matters link directly to the Basin's regulatory framework, giving the Authority and the Inspector-General the necessary powers to perform their functions, implement the Basin Plan, perform audits and enforce designated compliance provisions. Section 222D provides that the Authority can only require compellable information if it relates to the preparation and implementation of the Basin Plan or a matter relevant to the performance of the Authority's functions that is specified in regulations. Section 238 provides that the Inspector-General can only require compellable information if it relates to an investigation of a designated compliance provision, a section 73L audit, or a matter relevant to the performance of the Inspector-General's functions that is specified in regulations. While this information may include personal information, the requirement to disclose is limited by reasonable excuse in the case of a civil penalty and disclosure is only to the Authority or Inspector-General in exercise of their official duties. This power to compel information is limited to the specified matters listed in sections 222D and 238 and serves legitimate objectives, in supporting the Basin's regulatory framework as a whole, including the implementation of the Basin Plan, and the investigation of designated compliance provisions, audit powers and other functions. These prescribed matters thus do not constitute an arbitrary or unlawful interference with the right to privacy. The right to an adequate standard of living and the right to health The right to an adequate standard of living is protected in Article 11 of the ICESCR and the right to physical and mental health is protected in Article 12 of the ICESCR. In the General Comment No. 15, the UN Committee on Economic, Social and Cultural Rights (CESCR) interpreted these articles as including a right to water which encompasses an entitlement to 'sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses'. The overall framework of the Bill supports access to sufficient, safe, acceptable and physically available water for personal and domestic uses, as reflected in the objects of the Act at section 3. Division 3A introduces new contraventions of laws relating to taking water from a water resource and contraventions of the Basin Plan. 15

To ensure strong and effective compliance of the management of the Basin's water resources, this Bill creates new basic offences, aggravated offences and civil penalty provisions. Section 73A would create a basic offence and a civil penalty for certain conduct relating to the take of water from a water resource where such conduct is not permitted under a State law. Section 73B would create an aggravated offence where a circumstance of aggravation is a factor surrounding an offence under section 73A. The aggravated offence will attract a harsher penalty to reflect that taking water in certain situations will have a greater impact on the environment, the availability of water and the sustainability of water resources. The CESCR has noted the importance of ensuring sustainable access to water resources for agriculture to realise the right to adequate food. Attention should be given to ensuring that farmers have equitable access to water and water management systems. To ensure that there is sufficient and safe water for present and future generations, depletion of water resources through unsustainable extraction, diversion and damming should be reduced. The Bill contributes to these objectives by strengthening compliance and enforcement of the Act to reduce unsustainable and illegal extraction of water resources to improve equitable access to water for current farmers and future generations. Conclusion The Bill is compatible with human rights because it promotes the right to an adequate standard of living and the right to health. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. (Circulated by authority of the Minister for Resources, Water and Northern Australia, the Hon. Keith Pitt MP) 16

WATER LEGISLATION AMENDMENT (INSPECTOR-GENERAL OF WATER COMPLIANCE AND OTHER MEASURES) BILL 2021 NOTES ON CLAUSES Clause 1: Short title 1. Clause 1 would provide that the Bill may be cited as the Water Legislation Amendment (Inspector-General of Water Compliance and Other Measures) Act 2021. Clause 2: Commencement 2. Clause 2 would set out the date on which provisions of the Bill, if enacted, would commence. 3. Subclause 2(1) would provide that each provision of the 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. 4. Table item 1 would provide that this whole Act commences on 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. 5. Table item 1 would also provide that if the provisions do not commence within the period of six 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, the referred provisions 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. 6. Subclause 2(2) would provide that 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. 7. Subclause 2(3) would provide that in this section, 'referred provisions' and 'referring State' have the meanings given by section 18B of the Act. Clause 3: Schedules 8. Clause 3 would provide that a Schedule to the Bill amends or repeals provisions of legislation specified in that Schedule in accordance with the applicable items. In the context of the Bill, the Act and the Basin Plan 2012 (the Basin Plan) would be amended. 17

Schedule 1--Amendments to the Water Act 2007 Part 1--Management of Basin Water Resources Overview 9. Part 1 of Schedule 1 would amend the Act by introducing new offences and civil penalty provisions for contraventions of laws relating to taking water when not permitted under State law. Part 1 would also introduce new civil penalty provisions for contraventions of the Basin Plan. 10. New proposed sections 73A and 73B would create a basic offence provision, an aggravated offence provision and civil penalty provisions for certain conduct relating to the take of water from a water resource. New proposed sections 73F to 73H would create civil penalty provisions for conduct that contravenes the Basin Plan. 11. The combination of offences and civil penalties would provide an adequate deterrent for taking of water when not permitted and for contraventions of the Basin Plan, without which the compliance and enforcement mechanisms in the Act would be undermined. It is also appropriate to include both criminal and civil penalties to provide flexibility for the Commonwealth to enforce contraventions appropriately, without the need to pursue criminal penalties in all circumstances. 12. New proposed sections 73A and 73B would contain fault-based offences that consist of physical elements and fault elements. Set out in each section are the physical elements and fault elements that the prosecution is required to prove. For these fault-based offences, the standard that the prosecution would be required to meet is beyond reasonable doubt. 13. In accordance with the Commonwealth Guide, the penalties for the offence provisions and civil penalty provisions would be expressed as a number of penalty units and reflect the seriousness of the conduct to which they relate. Higher penalties would apply where an aggravated circumstance exists, to reflect that the consequences in those circumstances would be of a nature or magnitude that would be particularly damaging to the Basin water resource. 14. The maximum penalties that may be ordered by a court in relation to a body corporate are substantially higher than the maximum penalties a court may order in relation to an individual. These higher penalties are necessary to deter non-compliance with the water regulatory scheme. Higher civil penalties for a body corporate reflect the magnitude of harm that businesses can have on Basin water resources and are proportionate to the gains that a business might obtain from a contravention. Water Act 2007 Item 1 Section 9 (after note 2) 15. Item 1 would insert an additional note in section 9 of the Act. This additional note would refer the reader to new sections that would clarify the constitutional basis for other new sections. 18

16. Specifically, the note would refer to new proposed sections 73C and 73D that would clarify the constitutional basis for new proposed sections 73A and 73B. The note would also refer to new proposed sections 73J and 73K that would clarify the constitutional basis for new proposed sections 73F and 73H. Item 2 After Division 3 of Part 2 17. Item 2 would insert a new Division 3A (Offences and civil penalty provisions) that would comprise two subdivisions. Subdivision A would contain five new sections and Subdivision B five new sections. Subdivision A--Contraventions of laws relating to taking water from a water resource Section 73A Taking water when not permitted under State law--basic contravention 18. New section 73A would create a fault-based offence and a civil penalty for the taking of water when not permitted under State law. 19. Subsection 73A(1) would establish that a person contravenes the subsection if:  the person engages in conduct;  the conduct results in water being taken from a water resource;  a WRP for a WRP area applies to the water resource; and  the taking of water would constitute a contravention of the law of a State, provided that any fault element or state of mind requirement were to be satisfied in relation to the taking of the water. 20. For the purposes of this section, the contravention of the law of the State would be termed the 'potential State contravention'. 21. The terms 'take water from a water resource', 'water resource', 'water resource plan' and 'water resource plan area' would be defined in subsection 4(1) of the Act. 22. Subsection 73A(2) would create a fault-based offence for the contravention of new subsection 73A(1). The penalty for this fault-based offence would be 3 years imprisonment or 180 penalty units, or both. The maximum penalty is intended to provide an effective deterrent and reflects the seriousness of taking water when not permitted under State law. This penalty recognises that the taking of water when not permitted could result in significant detriment to Basin water resources and without such deterrence the integrity of water sharing arrangements in the Basin would be undermined. Subsection 73A(2) would also include a note that refers to new proposed section 170A in relation to the physical elements of the offence. 23. Subsection 73A(3) would set out that for new subsection 73A(2), the fault element of recklessness applies to paragraph 73A(1)(b) and that strict liability applies to paragraphs 73A(1)(c) and (d). 24. Subsection 73A(4) would provide that in a prosecution for a fault-based offence under new subsection 73A(2), it would not be necessary to prove, in relation to the potential State contravention, the existence of any fault element or state of mind requirement that 19

would necessarily need to be proved to make out the potential State contravention in proceedings under State law. For an offence to be established, it would be necessary for the prosecution to prove the existence of each physical element and the relevant fault element beyond a reasonable doubt. 25. There would be physical elements for the offence:  the person engaged in conduct;  the conduct of the person results in water being taken from a water resource;  the WRP applied to the water resource taken; and  the taking of water is a potential State contravention. 26. The physical elements that the prosecution would need to prove are: for paragraph 73A(1)(a) the conduct, for paragraph 73A(1)(b) the result of the conduct, and for paragraphs 73A(1)(c) and (d) the circumstance in which the conduct, and a result of the conduct, occurred. 27. The respective fault element that would apply to paragraph 73A(1)(b) would be recklessness. The prosecution would need to prove that the person:  knew that their conduct would result in the water being taken from the water resource;  intended for their conduct to result in the water being taken from the water resource; or  was aware of the substantial risk that their conduct would result in the water being taken from the water resource and having regard to the circumstances known by the person it was not justifiable to take the risk. 28. The effect of strict liability applying to paragraphs 73A(1)(c) and (d) would be that the prosecution would not have to show that a person was aware that a WRP was in place for the water resource from which the water was taken or that a person was aware that the taking of water contravened the law of a State. 29. Strict liability will not apply to all elements of the offence. The application of strict liability to the particular elements in paragraphs 73A(1)(c) and (d) has been proposed having regard to the Commonwealth Guide and the Scrutiny of Bills Committee 6th Report. Consistent with these documents, the application of strict liability for these elements would be appropriate. 30. Firstly, requiring proof of fault in relation to these physical elements for paragraphs 73A(1)(c) and (d) could mean that the offence would have additional barriers to being effectively prosecuted. Both paragraphs 73A(1)(c) and (d) would be elements that have a factual basis, that would be easily discoverable and available to the general public. The defendant would be well-placed to know whether a WRP applied to the water resource, and similarly whether the taking of water would constitute a potential State contravention, however the prosecution would have difficulty adducing evidence about the defendant's knowledge or lack of knowledge. 20

31. Secondly, there is merit in applying strict liability for these elements to ensure the integrity and efficacy of a regulatory scheme that aims to protect Basin water resources; the mistake of fact defence would still be available for the physical elements. Although strict liability would apply to the elements in paragraphs 73A(1)(c) and (d), the existence of this strict liability would not make any other defence unavailable. The defence of mistake of fact under section 9.2 of the Criminal Code Act 1995 (the Criminal Code) would still be available in relation to the physical elements. This is in line with the guidance at 2.2.6 of the Commonwealth Guide. 32. Subsection 73A(5) would create a civil penalty if the person contravened new subsection 73A(1). The civil penalty would be 1,000 penalty units for an individual or 10,000 penalty units for a body corporate. The maximum penalty is intended to provide an effective deterrent and reflects the seriousness of taking water when not permitted under State law. This penalty recognises that the taking of water when not permitted could result in significant detriment to Basin water resources and without such deterrence the integrity of water sharing arrangements in the Basin would be undermined. 33. The civil penalty for corporate bodies under subsection 73A(5) would deviate from the 'corporate multiplier' model contained in the Regulatory Powers Act which provides that if the person is a body corporate, the pecuniary penalty must not be more than 5 times the pecuniary penalty specified for the civil penalty. Under subsection 73A(5) the civil penalty for corporate bodies would be 10 times higher than the civil penalty for an individual. 34. The higher penalty and higher multiplier recognise that wrongful taking of water from the Murray-Darling Basin can lead to large commercial gains, and the penalties need to be commensurately high to provide an effective deterrent. These penalties are necessary to provide an adequate deterrent to businesses engaging in this conduct as a cost of doing business. Although the quantum of penalty is 10 times higher than an individual, this is proportionate to the seriousness of the conduct. Higher penalties will contribute to protecting the water rights of all users and the integrity of water resources. 35. Subsection 73A(5) would also include a note that sets out that it is generally not necessary to prove the person's state of mind for proceedings involving a contravention of a civil penalty provision. This note would refer to new proposed section 154C. The effect of this provision is that it would not be necessary to prove, in relation to the potential State contravention, the existence of any fault element or state of mind requirement that would necessarily need to be proved to make out the potential State contravention in proceedings under State law. 36. Subsection 73A(6) would provide that for the purpose of the civil penalty provision new subsection 73A(5), if water was taken from a water resource by means of works done, either on or beneath the land (whether or not the works were attached to the land), at any time when the water was taken, then presumptions about who the water 21

was taken by apply. The presumption applies where there is an absence of evidence to the contrary. 37. Paragraph 73A(6)(a) would provide that it must be presumed that the water was taken by the person who owned the land at any time when the water was taken. The person who owned the land at any time when the water is taken is referred to as the owner. The presumption under new paragraph 73A(6)(a) would apply, unless new paragraph 73A(6)(b) applies. For example, if when the water was taken, the owner of the land occupied the land, it would be presumed that the water was taken by the owner of the land. 38. Paragraph 73A(6)(b) would provide that it must be presumed if a person other than the owner occupied the land at all times when the water was taken, it was taken by that person. For example, if at all times when the water was taken, the owner of the land did not occupy the land, it would be presumed that the water was taken by the occupier of the land not the owner of the land. 39. Subsections 73A(7) and (8) deal with defences to the offence outlined in new subsection 73A(2) and civil penalty provision set out in new subsection 73A(5). 40. Subsection 73A(7) would provide that where there is a proceeding against a person for an alleged contravention of new subsection 73A(1), there would be no requirement for the person who instituted the proceedings to prove that no exceptions, exemptions, excuses, qualifications or justifications provided by the State law (including the common law) apply in the circumstances. The person that the proceedings are against is referred to as the 'first person'. 41. Subsection 73A(8) would provide that the first person may rely on an exception, exemption, excuse, qualification or justification referred to in new subsection 73A(7), provided this does not involve determining the first person's state of mind. Where the first person wishes to rely on such an exception, exemption, excuse, qualification or justification, the first person would bear the evidential burden in relation to that matter. This is justified as the first person would have the knowledge necessary to prove the exception, exemption, excuse, qualification or justification. 42. For example, in a criminal proceeding brought by the Commonwealth Director of Public Prosecutions (CDPP), the CDPP would not be required to prove in the first instance that no State exception, exemption, excuse, qualification or justification excused the accused's conduct. However, it would be open to the accused, under subsection 73A(8), to point to evidence that suggests a reasonable possibility that an exception, exemption, excuse, qualification or justification was available to the accused. Also, if it was a defence to the relevant State offence that the first person was authorised to take the relevant water under State law, then they could raise this defence under new subsection 73A(8). The purpose of this provision is to preserve the first person's right to rely on any State-based defences that do not involve determination of the first person's state of mind as defences to the Commonwealth law. 22

43. It is appropriate that the first person, as the subject of the relevant proceedings, bears the evidential burden for this, as the applicability of any State-based excuse or defence will be peculiarly within the knowledge of the first person as it relates to that person's particular circumstances with respect to their water arrangements. For criminal proceedings this is in line with Part 2.6 of the Criminal Code, which provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. Subsection 73A(8) would also include a note that refers to the new proposed definition of 'evidential burden' in subsection 4(1). 44. Subsection 73A(9) would clarify that new subsections 73A(7) and 73A(8) would not exclude the operation of Part 2.3 of the Criminal Code or new proposed section 154D in relation to an alleged contravention of subsection 73A(1). This would clarify that:  in criminal proceedings, the first person (the accused) would not be prevented from relying on a defence set out in Part 2.3 of the Criminal Code;  in proceedings for a pecuniary penalty order, the first person would not be prevented from relying on the defence of mistake of fact, set out in new proposed section 154D. Section 73B Taking water when not permitted under State law--aggravated contravention 45. New section 73B would create a fault-based offence and a civil penalty for the take of water when not permitted under State law when certain aggravated circumstances exist. Higher penalties would apply where an aggravated circumstance exists to reflect that the consequences in those circumstances would be particularly damaging to the Basin water resource. 46. Subsection 73B(1) would establish that a person commits a contravention if:  a person engages in conduct;  the conduct results in water being taken from a water resource;  a WRP for a WRP area applies to the water resource;  the taking of water would constitute a contravention of the law of a State, provided that any fault element or state of mind requirement were to be satisfied in relation to the taking of the water; and  where an aggravated circumstance exists. 47. For the purposes of this section, the contravention of the law of a State would be termed a 'potential State contravention'. The aggravated circumstances would be set out in new paragraph 73B(1)(e). 48. The terms 'take water from a water resource', 'water resource', 'water resource plan' and 'water resource plan area' are defined in subsection 4(1) of the Act. 49. Subparagraph 73B(1)(e)(i) would provide an aggravated circumstance where water is taken when tier 3 water sharing arrangements are in place. The term 'tier 3 water sharing arrangements' would be defined in new proposed subsection 73B(11). 23

50. The existence of tier 3 water sharing arrangements may indicate either unprecedented dry conditions, where there is a significant risk to the supply of a State's critical human water needs even where contingency measures are used; or that the quality of water supplied to a Basin State is unusable because it breaches agreed salinity and water quality trigger values. The illegal take of water at a time when water is scarce and needed for core human needs is a more serious offence and would therefore be an aggravated circumstance. 51. Subparagraph 73B(1)(e)(ii) would provide an aggravated circumstance where water is taken from a place that is downstream from where environmental water is held, or where environmental water was being delivered, during a period of environmental watering. The terms 'held environmental water' and 'environmental watering' are defined in subsection 4(1) of the Act. 52. To be considered an aggravated circumstance, the taking of water would need to occur within a 60-day period of when the held environmental water started to be delivered. Environmental water is purchased and held for the purpose of protected environmental assets, including Ramsar Convention-listed wetlands located throughout the Basin. The need to ensure that environmental water is available to support the health of the Basin and for Australia to meet its international obligations makes this a circumstance in which the taking of water has more serious effects than might otherwise be the case. 53. Subparagraph 73B(1)(e)(iii) would provide an aggravated circumstance where water is taken when the circumstance in paragraph 6.12(1)(a) of the Basin Plan exists in relation to the surface water SDL resource unit and if, at the time the water is taken, the State is taking, or is proposing to take, the steps referred to in subsection 6.12(5) of the Basin Plan in relation to that circumstance. The term 'surface water SDL resource unit' would be defined in new proposed subsection 73B(11). 54. Subparagraph 73B(1)(e)(iv) would provide an aggravated circumstance where water is taken when the circumstance in paragraph 6.12C(1)(a) of the Basin Plan exists in relation to the groundwater SDL resource unit; and, at the time the water is taken, the State is taking, or is proposing to take, the steps referred to in subsection 6.12C(5) of the Basin Plan. The term 'groundwater SDL resource unit' would be defined in new proposed subsection 73B(11). 55. The aggravated circumstances in subparagraphs 73B(1)(e)(iii) and (iv) recognise that where water is taken in a circumstance where measures are already in place to reduce water use, the effects would be more serious than would otherwise be the case. 56. The Basin Plan provides for SDL's that reflect the long-term volumes of water that can be taken from various SDL resource units across the Basin. Where the take is equal to or greater than 20% of the long-term annual diversion limit, the Basin Plan requires the State to provide a reasonable excuse for the excess take and to take steps to bring the cumulative balance back into alignment with the permitted resource unit. These steps involve measures to reduce the accumulated excess of water taken from the resource 24

unit. The unlawful taking of water in a circumstance where a Basin State would already be taking steps to reduce water use is likely to have more serious effects than would otherwise be the case. 57. Subparagraph 73B(1)(e)(v) would provide an aggravated circumstance where the taking of water would significantly contribute to, or is likely to significantly contribute to, harm to the environment in a State other than the State where the water was taken. The terms 'environment' and 'harm' would be defined in new proposed subsection 73B(11). 'Harm' would be defined to include direct harm, indirect harm, and the cumulative effect of any harm. 'Environment' would be defined to include environmental assets and environmental outcomes. The terms 'environmental assets' and 'environmental outcomes' are currently defined in subsection 4(1) of the Act. Environmental assets are defined as including water dependent ecosystems, ecosystem services and sites with ecological significance. Environmental outcomes are defined as including ecosystem functions, biodiversity, water quality and water resource health. 58. The Basin's surface and groundwater resources are part of a complex, interconnected system, meaning that conduct taken in one Basin State may result in downstream impacts in another Basin State. These impacts may be particularly harmful, such as impacts on water quality; and may be particularly difficult for Basin States to remediate, given the territorial limits of their jurisdiction. Because of the need to maintain the environment of the Basin as a whole, this is a circumstance where the taking of water is likely to have more serious effects than would otherwise be the case. 59. Subparagraph 73B(1)(e)(vi) would provide an aggravated circumstance where the taking of water significantly contributes to, or is likely to significantly contribute to, serious harm to the environment. The terms 'environment' and 'harm' would be defined in new proposed subsection 73B(11). 'Harm' would be defined to include direct harm, indirect harm, and the cumulative effect of any harm. 'Environment' would be defined to include environmental assets and environmental outcomes. The terms 'environmental asserts' and 'environmental outcomes' are currently defined in subsection 4(1) of the Act. Environmental assets are defined as including water dependent ecosystems, ecosystem services and sites with ecological significance. Environmental outcomes are defined as including functions, biodiversity, water quality and water resource health. The resulting level of 'significant' harm to the environment means that this is a circumstance in which the unlawful taking of water has a more serious effect than might otherwise be the case. 60. Subparagraph 73B(1)(e)(vii) would provide an aggravated circumstance where the water is taken from a wetland that is protected under a Commonwealth law or a State law. A wetland would include declared Ramsar wetlands as defined in subsection 4(1) of the Act. 61. Ramsar wetlands are those that are representative, rare or unique wetlands, or are important for conserving biological diversity. The Ramsar Convention aims to halt the worldwide loss of wetlands and to conserve, through wise use and management, those 25

that remain. Given the particular environmental sensitivity of protected wetlands, this is a circumstance where the taking of water is likely to have more serious effects; and may impact Australia's ability to fulfil its international commitments. 62. Subsection 73B(2) would create a fault-based offence if the person contravened subsection 73B(1). The penalty for this fault-based offence would be 5 years imprisonment or 300 penalty units, or both. The maximum penalty is intended to provide an effective deterrent and reflects the seriousness of taking water when not permitted under State law in aggravated circumstances. This penalty recognises that the taking of water when not permitted, and when an aggravated circumstance exists, is likely to result in significant detriment to Basin water resources and without such deterrence the integrity of water sharing arrangements in the Basin would be undermined. Subsection 73B(2) would also include a note that refers to new proposed section 170A in relation to the physical elements of the offence. 63. Subsection 73B(3) would set out that for new subsection 73B(2), the fault element of recklessness applies to new paragraphs 73B(1)(b) and (e) and that strict liability element applies to new paragraphs 73B(1)(c) and (d). 64. Subsection 73B(4) would provide that in a prosecution for a fault-based offence under new subsection 73B(2), it would not be necessary to prove, in relation to the potential State contravention, the existence of any fault element or state of mind requirement that would necessarily need to be proved to make out the potential State contravention in proceedings under the State law. 65. For an offence to be established, it would be necessary for the prosecution to prove the existence of each physical element and the relevant fault element beyond a reasonable doubt. 66. There would be physical elements of the offence:  the person engaged in conduct;  the conduct of the person results in water being taken from a water resource;  the WRP applied to the water resource taken;  the taking of water is a potential State contravention; and  a circumstance in paragraph 73B(1)(e) exists. 67. The physical elements that the prosecution would need to prove are: for paragraph 73B(1)(a) the conduct, for paragraph 73B(1)(b) the result of the conduct, and for paragraphs 73B(1)(c) to (e) the circumstance in which the conduct, and a result of the conduct, occurred. 68. The respective fault element that would apply to new paragraphs 73B(1)(b) and (e) would be recklessness. For paragraph 73B(1)(b) the prosecution would need to prove that the person:  knew that their conduct would result in the water being taken from the water resource; 26

 intended for their conduct to result in the water being taken from the water resource; or  was aware of the substantial risk that their conduct would result in the water being taken from the water resource and having regard to the circumstances known by the person it was not justifiable to take the risk. 69. For paragraph 73B(1)(e) the prosecution would need to prove that the person:  knew that a circumstance in paragraph 73B(1)(e) existed or will exist; or  believes that a circumstance in paragraph 73B(1)(e) existed or will exist; or  was aware of the substantial risk that a circumstance in paragraph 73B(1)(e) existed, or will exist, and having regard to the circumstances known by the person it was not justifiable to take the risk. 70. The effect of strict liability applying to paragraphs 73B(1)(c) and (d) would be that the prosecution would not have to show that a person was aware that a WRP was in place for the water resource from which the water was taken or that a person was aware that the taking of water contravened the law of a State. 71. Strict liability would not apply to all elements of the offence. The application of strict liability to the particular elements in paragraphs 73B(1)(c) and (d) has been proposed having regard to the Commonwealth Guide and the Scrutiny of Bills Committee 6th Report. Consistent with these documents, the application of strict liability for these elements would be appropriate. 72. Firstly, requiring proof of fault in relation to these physical elements for paragraphs 73B(1)(c) and (d) could mean that the offence would have additional barriers to being effectively prosecuted. Both paragraphs 73B(1)(c) and (d) would be elements that have factual basis, that would be easily discoverable and available to the general public. The defendant would be well-placed to know whether a WRP applied to the water resource, and similarly whether the taking of water would constitute a potential State contravention, however the prosecution would have difficulty adducing evidence about the defendant's knowledge or lack of knowledge. 73. Secondly, there is merit in applying strict liability for these elements to ensure the integrity and efficacy of a regulatory scheme that aims to protect the Basin water resources. The mistake of fact defence would still be available for the physical elements. Although strict liability would apply to the elements in paragraphs 73B(1)(c) and (d), the existence of this strict liability would not make any other defence unavailable. The defence of mistake of fact under section 9.2 of the Criminal Code would still be available in relation to the physical elements. This is in line with the guidance at 2.2.6 of the Commonwealth Guide. 74. Subsection 73B(5) would provide that in a trial for an offence against new subsection 73B(2), the trier of fact would be permitted to find the defendant not guilty of the offence, but guilty of an offence against new subsection 73A(2) provided that: the trier of fact is not satisfied that the defendant is guilty of the offence against new subsection 27

73B(2), the trier of fact is satisfied that the defendant is guilty of the offence against new subsection 73A(2) and the defendant has been accorded procedural fairness in relation to that finding of guilt. 75. For example, the defendant may be accused of an aggravated offence under new subsection 73B(1) with the aggravating feature that tier 3 water sharing arrangements were in place when the water was taken. However, the trier of fact was not satisfied that the water was taken when tier 3 water sharing arrangements were in place. The trier of fact could still be satisfied that the defendant was guilty of an offence under new subsection 73A(2). 76. Subsection 73B(6) would create a civil penalty if the person contravened new subsection 73B(1). The civil penalty would be 5,000 penalty units for an individual or 50,000 penalty units for a body corporate. The maximum penalty is intended to provide an effective deterrent and reflects the seriousness of taking water when not permitted under State law in aggravated circumstances. This penalty recognises that the taking of water when not permitted, and when an aggravated circumstance exists, could result in significant detriment to Basin water resources and without such deterrence the integrity of water sharing arrangements in the Basin would be undermined. The maximum penalty is the same as in Commonwealth law relating to a significant impact on a declared Ramsar wetland. 77. The civil penalty for corporate bodies under subsection 73B(6) would deviate from the 'corporate multiplier' model contained in the Regulatory Powers Act which provides that if the person is a body corporate, the pecuniary penalty must not be more than 5 times the pecuniary penalty specified for the civil penalty. Under subsection 73B(6) the civil penalty for corporate bodies would be 10 times higher than the civil penalty for an individual. 78. The higher penalty and higher multiplier recognise that wrongful taking of water from the Murray-Darling Basin, particularly in aggravated circumstances, can lead to large commercial gains, and the penalties need to be commensurately high to provide an effective deterrent. Although the quantum of penalty is 10 times higher than an individual, this is proportionate to the seriousness of the conduct. Higher penalties will contribute to protecting the water rights of all users and the integrity of water resources. 79. Subsection 73B(6) would also include a note that sets out that it is generally not necessary to prove the person's state of mind for proceedings involving a contravention of a civil penalty provision. This note would refer to new proposed section 154C. The effect of this provision is that it would not be necessary to prove, in relation to the potential State contravention, the existence of any fault element or state of mind requirement that would necessarily need to be proved to make out the potential State contravention in proceedings under State law. 80. Subsection 73B(7) would provide that for the purpose of the civil penalty provision under new subsection 73B(6), if water was taken from a water resource by means of 28

works done, either on or beneath the land (whether or not the works were attached to the land), at any time when the water was taken, then presumptions about who the water was taken by apply, where there is an absence of evidence to the contrary. 81. Paragraph 73B(7)(a) would provide that it must be presumed that the water was taken by the person who owned the land at any time when the water was taken, unless new paragraph 73B(7)(b) applies. The person who owned the land at any time when the water is taken is referred to as the owner. For example, if when the water was taken, the owner of the land occupied the land, it would be presumed that the water was taken by the owner of the land. 82. Paragraph 73B(7)(b) would provide that it must be presumed that, if a person other than the owner occupied the land at all times when the water was taken, it was taken by that person. For example, if at all times when the water was taken, the owner of the land did not occupy the land, it would be presumed that the water was taken by the occupier of the land not the owner of the land. 83. Subsections 73B(8) to (9) deal with defences to the offence set out in new subsection 73B(2) and civil penalty provision set out in new subsection 73B(6). 84. Subsection 73B(8) would provide that where there is a proceeding against a person for an alleged contravention of new subsection 73B(1), there would be no requirement for the person who instituted the proceedings to prove that no exceptions, exemptions, excuses, qualifications or justifications provided by the State law (including the common law) apply in the circumstances. The person that the proceedings are against is referred to as the first person. 85. Subsection 73B(9) would provide that the first person may rely on an exception, exemption, excuse, qualification or justification referred to in new subsection 73B(8), provided the defence does not involve determining the first person's state of mind. Where the first person wishes to rely on such exception, exemption, excuse, qualification or justification, the first person would bear the evidential burden in relation to that matter. This is justified as the first person would have the knowledge necessary to prove the exception, exemption, excuse, qualification or justification. 86. For example, in a criminal proceeding brought by the CDPP, the CDPP would not be required to prove in the first instance that no State exception, exemption, excuse, qualification or justification excused the accused's conduct. However, it would be open to the accused, under subsection 73B(9), to point to evidence that suggests a reasonable possibility that an exception, exemption, excuse, qualification or justification was available to the accused. Also, if it was a defence to the relevant State offence that the first person was authorised to take the relevant water under State law, then they could raise this defence under new subsection 73B(9). The purpose of this provision is to preserve the accused's right to rely on any State-based defences that do not involve determination of the first person's state of mind as defences to the Commonwealth law. 29

87. It is appropriate that the first person, as the subject of the relevant proceedings, bears the evidential burden for this, as the applicability of any State-based excuse or defence will be peculiarly within the knowledge of the first person as it relates to that person's particular circumstances with respect to their water arrangements. For criminal proceedings this is in line with Part 2.6 of the Criminal Code, which provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. Subsection 73B(9) would also include a note that refers to the new proposed definition of 'evidential burden' in subsection 4(1) of the Act. 88. Subsection 73B(10) would clarify that new subsections 73B(8) and 73B(9) would not exclude the operation of Part 2.3 of the Criminal Code or new proposed section 154D in relation to an alleged contravention of new subsection 73B(1). This would clarify that:  in criminal proceedings, the first person (the accused) would not be prevented from relying on a defence set out in Part 2.3 of the Criminal Code;  in proceedings for a civil penalty order, the first person would not be prevented from relying on the defence of mistake of fact, set out in new proposed section 154D. 89. Subsection 73B(11) would define various terms used in new section 73B(1)(e). The definitions are that: '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; 'surface water SDL resource unit' has the same meaning as in the Basin Plan; and 'tier 3 water sharing arrangements' means the tier 3 water sharing arrangements provided for in the Agreement. Section 73C Constitutional basis of sections 73A and 73B 90. New section 73C would set out the constitutional basis of new sections 73A and 73B, namely paragraph 51(xxix) of the Constitution as it relates to giving effect to Australia's obligations under international agreement including relevant parts of the Ramsar Convention and the Biodiversity Convention, and paragraph 51(xxix), which provides the external affairs legislative power of the Parliament. Section 73D Additional operation of sections 73A and 73B 91. New section 73D would provide for the additional operation of sections 73A and 73B. It would set out other relevant Commonwealth constitutional powers which would support new sections 73A and 73B in circumstances where the relevant contravening conduct is:  by a constitutional corporation or by another person that affects the activities of a constitutional corporation;  in the course of trade and commerce with other countries, among the States, or between a State and a Territory;  which takes place in a Territory; or  by agencies of the Commonwealth. 30

92. Subsection 73D(6) would define 'conduct' to include an act or omission and 'relevant contravening conduct' as conduct that constitutes, or would constitute, a contravention of a provision of new sections 73A and 73B. Section 73E Restrictions on taking action under Part 8 or 10AA in relation to alleged contravention of section 73A or 73B 93. New section 73E would restrict action taken under Part 8 or 10AA by the Inspector- General or authorised compliance officers in relation to alleged contraventions of section 73A or 73B. The effect of this section is to seek to avoid duplication of action taken by State agencies and the Inspector-General or authorised compliance officers. 94. Subsection 73E(1) would require the Inspector-General to notify the appropriate agency of the State in which an alleged contravention of section 73A or 73B occurs prior to commencing action under Part 8 or 10AA of the alleged contravention. The Inspector- General or an authorised compliance officer must not take action under Part 8 (Enforcement) or Part 10AA (Inspector-General of Water Compliance (special powers)) unless the Inspector-General has given the appropriate agency of the State a written notice. It is intended that the appropriate agency would be the State agency enforcing or investigating alleged contraventions of the relevant State water management law. 95. Paragraphs 73E(1)(a) and (b) would provide the information that would be stated in the written notice provided by the Inspector-General to the appropriate agency of the State where the contravention is alleged to have occurred. 96. Paragraph 73E(1)(a) would provide that the written notice would set out that the Inspector-General intends to take action under Part 8 or 10AA in relation to an alleged contravention. 97. Paragraph 73E(1)(b) would provide that the written notice would set out that the appropriate agency of the State may, within 28 days after receiving the notice, notify the Inspector-General that the appropriate agency of the State is investigating or taking other enforcement action in relation to the conduct constituting the alleged contravention. For example, a written notice given to the appropriate agency of the State by the Inspector-General could state:  that the Inspector-General intends to issue a public warning notice under new proposed section 167A of Division 7A of Part 8 (Enforcement) in relation to an alleged contravention of new section 73A; and  that the State agency may, within 28 days of receiving the written notice, notify the Inspector-General that the State agency is investigating the conduct constituting the alleged contravention under the State law. 98. Subsection 73E(2) would prohibit the Inspector-General or an authorised compliance officer from taking action under Part 8 or 10AA in relation to the alleged contravention in certain circumstances. The Inspector-General or an authorised compliance officer 31

must not, within 3 months after the Inspector-General receives a notification from the appropriate agency of the State, take action if:  the Inspector-General gave the appropriate agency of the State a written notice in relation to an alleged contravention under subsection 73E(1); and  the State agency, within 28 days of receiving the notice from the Inspector-General, notified the Inspector-General in writing under paragraph 73E(1)(b). 99. Subsection 73E(3) would provide that despite subsection 73E(2), the Inspector-General or an authorised compliance officer may take action under Part 8 or 10AA in relation to the alleged contravention in certain circumstances. Those circumstances are if, within 3 months after the Inspector-General receives a notification from the appropriate agency of the State under paragraph 73E(1)(b), the State agency either withdraws the notification by written notice to the Inspector-General or requests the Inspector- General, in writing, to take action under Part 8 or 10AA. In those circumstances the Inspector-General or an authorised compliance officer would be permitted to take action under Part 8 or 10AA at any time after receiving the withdrawal notice or request from the State agency. 100. Subsection 73E(4) would provide that a failure to comply with subsection 73E(1) or (2) would not affect the validity of any action taken by the Inspector-General or an authorised compliance officer under this Act in relation to an alleged contravention. 101. The purpose of the provisions in subsections 73E(1) and (2) is to promote co-ordination between the Commonwealth and Basin States and seek to avoid duplication of action taken by State agencies and the Inspector-General or authorised compliance officers. Subsection 73E(4) would reflect the intent of these provisions, by making clear that compliance with subsections 73E(1) and (2) is not a precondition for exercising powers, or for taking any of the other actions outlined in Part 8 or Part 10AA. The necessary preconditions relevant to the exercise of the particular enforcement actions set out in Part 8 and Part 10AA, are set out in those parts. Subsection 73E(4) is intended to ensure that an inadvertent departure from the requirements of subsections 73E(1) or (2) does not impact the enforcement of the relevant provisions of the Act. 102. For example, if the Inspector-General issued a public warning notice under new proposed section 167A of Division 7A of Part 8 (Enforcement) in relation to an alleged contravention of new section 73A prior to giving the appropriate agency of a State a notice, this would not invalidate the public warning notice issued by the Inspector- General. 103. Subsection 73E(5) would explain that a notice written by the Inspector-General in relation to an alleged contravention is not a legislative instrument for the purposes of subsection 8(1) of the Legislation Act 2003 (Legislation Act). Subsection 73E(5) would also explain that a notification written by a State agency is not a legislative instrument for the purposes of subsection 8(1) of the Legislation Act. This provision is declaratory of the law and is included to assist the reader. A notice and a notification are administrative in nature. 32

104. Subsection 73E(6) would provide that to avoid doubt, subsection 73E(2) would not prevent the Inspector-General from exercising powers under the 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. Subsection 73E(6) would include a note that provided an example that the Inspector-General may disclose information to a State or other body under Division 5 of Part 9A. Subdivision B--Contraventions of the Basin Plan Section 73F Failing to give reasons for restricting trade of water delivery right as required by the Basin Plan 105. New section 73F would create a civil penalty for failing to comply with section 12.30 of the Basin Plan. Section 12.30 provides that if an irrigation infrastructure operator decides to restrict the trade of a water delivery right within its irrigation network, then it must notify each party to the trade in writing of the decision and the reasons why. The notification must be given as soon as practicable, but in any case, within 30 days, after the decision is made. 106. Subsection 73F(1) would set out the conduct that amounts to the contravention. 107. Subsection 73F(2) would provide that new subsection 73F(1) does not apply if the person has a reasonable excuse, which is a justification for the conduct that would otherwise contravene this section. The justification must be considered appropriate in the circumstances to be a reasonable excuse. 108. Subsection 73F(2) would include a note that refers to new proposed section 154E. Section 154E would have the effect that the defendant bears an evidential burden to make out the reasonable excuse. Placing the evidential burden on the defendant would be justified as the defendant would have the necessary knowledge, information, or evidence to make out the reasonable excuse. 109. Subsection 73F(3) would provide that a person is liable to a civil penalty if the person has contravened new subsection 73F(1). The penalty for this civil penalty would be 60 penalty units. Subsection 73F(3) would also include two notes. Note 1 would set out that it is generally not necessary to prove the person's state of mind for proceedings involving a contravention of a civil penalty provision. This note would refer to new proposed section 154C. Note 2 would set out that this section applies to conduct described in new proposed section 73J. Section 73G Failing to report price for trade of water access right as required by the Basin Plan 110. New section 73G would create a civil penalty for failing to comply with section 12.48 of the Basin Plan. Section 12.48 provides that if the trade of a water access right requires approval, then the approval authority must be notified of the price agreed in writing by the person disposing of the water access right. If the trade does not require approval but does require registration, then the registration authority must be notified of 33

the price agreed. The notice must be given either before or at the time approval or registration is sought. 111. Subsection 73G(1) would provide that a person contravenes this subsection if the person is required to give a notification under subsection 12.48(1) or (2) of the Basin Plan and fails to give the notification in accordance with subsection 12.48(3) of the Basin Plan. 112. Subsection 73G(2) would provide that new subsection 73G(1) does not apply if the person has a reasonable excuse, which is a justification for the conduct that would otherwise contravene this section. The justification must be considered appropriate in the circumstances to be a valid reasonable excuse. 113. Subsection 73G(2) would include a note that refers to new proposed section 154E. Section 154E would have the effect that the defendant bears an evidential burden to make out the reasonable excuse. Placing evidential burden on the defendant would be justified as the defendant would have the necessary knowledge, information, or evidence to make out the reasonable excuse. 114. Subsection 73G(3) would provide that a person is liable to a civil penalty if the person has contravened new subsection 73G(1). The penalty for this civil penalty would be 60 penalty units. Subsection 73G(3) would also include two notes. Note 1 would set out that it is generally not necessary to prove the person's state of mind for proceedings involving a contravention of a civil penalty provision. This note would refer to new proposed section 154C. Note 2 would set out that this section applies to conduct described in new proposed section 73J. Section 73H Trading water access right before water announcement made or generally available in contravention of the Basin Plan 115. New section 73H would create a civil penalty provision for contravening subsection 12.51(2) of the Basin Plan. Subsection 12.51(2) sits within Division 5 of Part 5 of the Basin Plan, which draws on principles in equities markets relating to insider trading and disclosure. Subsection 12.51(2) provides that a person must not enter into a contract to trade water, or if no contract is involved in the trade, apply to an approval or registration authority to trade water, if the person is aware of a decision made regarding water announcements that is not generally available. 116. This requirement recognises that state governments and other authorities make announcements that could be market-sensitive and could alter the trading behaviour of parties in the water market. Accordingly, the Basin Plan seeks to ensure that announcements of this nature are widely communicated to all market participants at the same time, and that any persons privy to the information before it is announced are prohibited from trading relevant water access rights. 117. New subsection 73H(1) would set out that a person contravenes this subsection if the person contravenes subsection 12.51(2) of the Basin Plan. This provision strengthens 34

compliance with section 12.51(2) of the Basin Plan, by providing an adequate deterrent for non-compliance. 118. Subsection 73H(2) would provide that a person is liable to a civil penalty if the person has contravened new subsection 73H(1). The civil penalty would be 1,000 penalty units for an individual or 10,000 penalty units for a body corporate. The maximum penalty is intended to provide an effective deterrent and reflects the seriousness of conduct contravening section 12.51 of the Basin Plan. This penalty recognises that conduct akin to 'insider-trading' could result in significant financial gain for the person engaging in that conduct and so should be subject to a maximum penalty sufficient to deter such conduct. This penalty also recognises that conduct of this nature can undermine the integrity of the water trading market, and public confidence in those markets. 119. Subsection 73H(2) would also include three notes. Note 1 would set out that it is generally not necessary to prove the person's state of mind for proceedings involving a contravention of a civil penalty provision. This note would refer to new proposed section 154C. 120. Note 2 would provide that the person who wishes to rely on the exception in section 12.52 of the Basin Plan bears the evidential burden in relation to the matter in that section. This note also refers to new proposed section 154E. Section 12.52 of the Basin Plan sets out that the Commonwealth, a Basin State or a person that is an agency of the Commonwealth or a Basin State does not contravene section 12.51 where the arrangements specified in 12.52(1) are in place. 121. A defendant may rely on this exemption in proceedings instituted under section 73H. A defendant who wishes to rely on the exemption in section 12.52 of the Basin Plan, regarding ethical wall arrangements, bears the evidential burden to make this out. This is necessary to achieve the legitimate objective of ensuring the integrity of water announcement information and the trading of water access rights. The reversal of the evidential burden is appropriate because the defendant will have the information or knowledge that is evidence of the exception (that they had an ethical wall arrangement in place). The prosecution will not have this information or knowledge and may have difficulty in obtaining it. 122. Note 3 would set out that this section applies to conduct described in new proposed section 73J or new proposed section 73K. Section 73J Application of sections 73F to 73H 123. New section 73J would provide for the additional operation of new sections 73F to 73H. It would set out other relevant constitutional powers which would support new sections 73F to 73H in the circumstances where the relevant contravening conduct is:  by a constitutional corporation or by another person that affects the activities of a constitutional corporation;  in the course of trade and commerce with other countries, among the States, or between a State and a Territory; 35

 which takes place in a Territory or relates to tradable water rights in relation to a water resource in a Territory; and  by agencies of the Commonwealth. 124. Subsection 73J(2) would define 'conduct' to include an act or omission and 'relevant contravening conduct' as conduct that constitutes, or would constitute, a contravention of a provision of new sections 73F, 73G and 73H. Section 73K Additional application of section 73H 125. New section 73K would extend the application of new section 73H to contravening conduct that takes place using postal, telegraphic, telephonic or other like services, within the meaning of paragraph 51(v) of the Constitution. This would cover communications regarding insider trading of water that takes place using these communication services. 126. Subsection 73K(2) would define 'conduct' to include an act or omission and 'relevant contravening conduct' as conduct that constitutes, or would constitute, a contravention of new section 73H. 36

Part 2--Compliance and Enforcement Overview 127. Part 2 of Schedule 1 of the Bill would establish and set out the functions and powers of the Inspector-General of Water Compliance. 128. This part would also transfer enforcement and compliance functions from the Authority to the Inspector-General and update existing regulatory and enforcement tools. 129. The Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act) provides for a framework of standard regulatory powers for Commonwealth agencies, where the relevant regulatory schemes trigger its provisions through primary legislation. Rather than triggering provisions in the Regulatory Powers Act, the approach taken in this Bill is to amend the existing provisions of the Act to reflect the equivalent provisions of the Regulatory Powers Act as far as possible, while retaining differences that are considered appropriate in the context. 130. Where proposed sections of the Bill would mirror provisions in the Regulatory Powers Act, a reference has been made to the relevant section in the Regulatory Powers Act and a brief overview has been provided. 131. Where proposed sections of the Bill do not replicate or deviate from provisions in the Regulatory Powers Act, the justification for departing from the provisions, the intent and a description of the operation has been provided. Water Act 2007 Item 3 Subsection 4(1) 132. Item 3 would insert definitions for key terms that are used throughout the Bill into subsection 4(1) of the Act. These definitions are set out below. Authorised compliance officer 133. The term 'authorised compliance officer' would mean an individual whose appointment by the Inspector-General is in force under the new proposed section 222G. The power of the Inspector-General to appoint authorised compliance officers would be contained in a new proposed section 222G. Designated compliance provision 134. 'Designated compliance provision' would refer to those provisions which the Inspector- General would have responsibility for exercising compliance powers in relation to. This would mean any of the following provisions: a provision of Part 2 or regulations made for the purposes of Part 2; section 166 as amended; new section 222C; new section 222D; new section 237A; and section 238, as amended. Enforcement body 135. The term 'enforcement body' would have the same meaning given by the Privacy Act 1988 (the Privacy Act). Enforcement bodies specified in the Privacy Act include the Australian Federal Police, state or territory police, and the anti-corruption bodies of respective states, among other bodies. 37

Enforcement related activity 136. The term 'enforcement related activity' would have the same meaning given by the Privacy Act. This includes the prevention, detection, investigation, prosecution or punishment of criminal offences and civil penalty provisions; the conduct of surveillance and monitoring activities; and other activities. Evidential burden 137. The term 'evidential burden' would mean the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. This adopts the definition of 'evidential burden' in the Criminal Code. Item 4 Subsection 4(1) (definition of evidential material) 138. Item 4 is a consequential amendment that would substitute a new definition of 'evidential material'. The previous definition referred to a compliance provision, whereas this new definition would refer to a designated compliance provision. Item 5 Subsection 4(1) 139. Item 5 would insert definitions for key terms that are used throughout the Bill into subsection 4(1) of the Act. These definitions are set out below. Inspector-General 140. 'Inspector-General' would mean the Inspector-General of Water Compliance, referred to in the new proposed section 215B. Investigation warrant 141. 'Investigation warrant' would mean a warrant issued by a magistrate under new proposed section 226 or a warrant signed by a magistrate under new proposed section 227. Monitoring warrant 142. 'Monitoring warrant' would mean a warrant issued by a magistrate under new proposed section 225. Paid work 143. 'Paid work' would mean work for financial gain or reward (whether as an employee, a self-employed person or otherwise). The term would be relevant to new proposed section 215M, which would provide the circumstances in which the Inspector-General may engage in other paid work. Relevant chief executive 144. 'Relevant chief executive' would, for the purposes of Division 5 of Part 8, have the meaning given in new proposed section 155A. Item 6 Section 9 (note 5) 145. Item 6 would omit the reference to 'Note 5' in section 9 of the Act, and substitute 'Note 4'. This amendment would be consequential to the amendment proposed in item 1 that 38

would insert Note 3 after Note 2 in section 9 of the Act. This amendment would allow the notes to be ordered sequentially. Item 7 Section 9 (note 6) 146. Item 7 would repeal the current Note 6 in section 9 of the Act, and substitute Note 5. The previous Note 6 referred to section 216 of the Act which clarifies the constitutional basis for Part 10. As below amendments would repeal section 216, Note 6 is no longer required. 147. The new inserted Note 5 would refer to subsection 165(6) to clarify the constitutional basis for giving a direction under subsection 165(2) in certain circumstances. Items 8 and 15 Paragraph 18E(5)(a) and Subsection 86J(2) 148. These amendments would reflect the transfer of some of the Authority's functions and powers to the Inspector-General. 149. Item 8 would omit the reference to 'section 216 or 219 or by subsection 238(1)' in paragraph 18E(5)(a) and substitute 'section 219 or by subsection 222D(1)'. 150. Section 18E deals with the additional functions, powers and duties of the Authority. 151. Item 15 would make a similar amendment to item 8, in addition it would remove a reference to subsection 223(1). 152. Section 86J deals with the additional functions, powers and duties of the Authority in relation to critical human water needs. 153. Section 216 deals with the application of Part 10 of the Act to certain powers of the Authority. This section would be repealed by item 69 as a consequence of the removal of those powers from the Authority. 154. The reference to section 219 would be retained because it would, as amended by items 75 and 76, relate to when an authorised officer may enter premises for the performance of any of the Authority's functions. 155. Subsection 223(1) would be repealed and substituted by item 81 to refer to authorised compliance officers appointed by the Inspector-General as opposed to authorised officers. 156. Proposed new section 222D would replace the current section 238. Section 238 would be repealed and substituted by item 147. Following this amendment, section 238 would no longer establish a power of the Authority to require certain information and would instead relate to the Inspector-General's power to require a person to give specified compellable information to the Inspector-General. As a consequence, it would not be necessary to retain reference to this section in paragraph 18E(5)(a) and subsection 86J(2). Section 222D would be inserted by item 78 and would provide for the Authority to require a person to give specified compellable information to the Authority. 39

Item 9 After subsection 22(8) 157. Item 9 would insert a new subsection 22(8A) that permits the Basin Plan to confer functions or powers on the Inspector-General. 158. This would allow a provision of the Basin Plan that relates to a matter set out in the table in subsection 22(1), or a matter prescribed by the regulations for the purposes of subsection 22(8), to confer functions or powers on the Inspector-General to ensure compliance with related provisions of the Basin Plan. 159. For example, matters concerning the environmental watering plan and the water quality and salinity management plan are matters for the content of the Basin Plan. New subsection 22(8A) would allow the Basin Plan to be amended to confer functions or powers on the Inspector-General for the purpose of ensuring compliance with matters set out in the environmental watering plan. Item 10 After subsection 46(2) 160. Item 10 would insert a new subsection (2A) in section 46 which would require the Authority to obtain, and have regard to, the advice of the Inspector-General in the preparation of an amendment to the Basin Plan that confers functions or powers on the Inspector-General. 161. This amendment would be consequential to item 9, which would permit the Basin Plan to confer functions or powers on the Inspector-General. The purpose of this is to ensure that the Inspector-General has been consulted and is aware of any functions or powers conferred on the Inspector-General which are related to matters in the Basin Plan. However, by operation of section 49 of the Act, subsection 46(2A) would not require the Authority to obtain, or have regard to, the advice of the Inspector-General for amendments to the Basin Plan that are minor or non-substantive. 162. Further, the Authority would not be required to obtain, or have regard to the advice of the Inspector-General for amendments of the Basin Plan made in accordance with section 49AA of the Act. Item 11 Subsection 71(1) (note) 163. Item 11 would omit the reference to 'Note' in subsection 71(1) and substitute 'Note 1'. This would be to allow sequential numbering following the introduction of Note 2 below. Item 12 At the end of subsection 71(1) 164. Item 12 would add Note 2 to the end of subsection 71(1). This note would set out that there are additional reporting obligations in the Basin Plan for a Basin State to provide information in writing to the Inspector-General about some of the matters referred to in subsection 71(1). Item 13 At the end of section 71 165. Item 13 would add an additional subsection (3) in section 71, that would require the Authority to give a copy of each report received under subsection 71(1) to the Inspector-General as soon as practicable after the Authority receives it. This would 40

ensure that the Inspector-General receives reports prepared by Basin States from the Authority as soon as practicable. For example, this would allow the Inspector-General to obtain information regarding compliance issues identified in these reports. Item 14 Before Division 4 of Part 2 166. Item 14 would insert a new Division 3B (Audits) before Division 4 of Part 2. This new division would comprise two new sections relating to audits by the Inspector-General. 167. The power to conduct audits is currently located at section 13.10 of the Basin Plan. Under that section, the Authority may conduct, or appoint or establish a person or body to conduct periodic audits. Current section 13.10 would be omitted as a consequence of the transfer of compliance functions to the Inspector-General. Division 3B--Audits Section 73L Audits 168. New section 73L would establish the power of the Inspector-General to conduct audits and prepare audit reports. 169. Subsection 73L(1) would permit the Inspector-General to conduct, or appoint, or establish a person or body to conduct periodic audits to assess compliance with either or both the Basin Plan, and WRPs. The Inspector-General, or person or body appointed or established by the Inspector-General to conduct audits, would be referred to as an auditor. 170. Subsection 73L(2) would require the auditor conducting an audit to have regard to any standards and guidelines prepared by the Inspector-General. This would include guidelines issued by the Inspector-General relating to the conduct of an audit and any applicable guidelines or standards issued by the Inspector-General under new proposed sections 215V and 215VA respectively. 171. Subsection 73L(3) would require the auditor conducting an audit to prepare a report setting out the findings of the audit and recommendations arising from the audit. Prior to finalisation, any person or body to which the audit relates must be provided an opportunity to comment on the report's proposed findings and recommendations. This would ensure that the subject of an audit is provided procedural fairness, prior to the finalisation of the audit. 172. Subsection 73L(4) would provide that after the report is finalised, the Inspector-General would be required to publish a copy of the report on the Inspector-General or Department's website. 73M Responses to audit reports including recommendations that an agency take certain action 173. New section 73M would require agencies to respond to audit reports where the report included a recommendation that the agency take certain action. 41

174. Subsection 73M(1) would provide that new section 73M only applies where an audit report is published under new subsection 73L(4) and the report includes a recommendation that certain action is taken by a Commonwealth or State agency. 175. Subsection 73M(2) would provide that the Commonwealth or State agency to which a recommendation is made must give a written response to the Inspector-General within 90 days after the report was published or within any longer agreed period. 176. The written response to the Inspector-General must set out whether the agency accepts the recommendation (in whole or in part), and if they do, details of any action to give effect to the recommendation (in whole or in part). If the agency does not accept the recommendation, in whole or in part, the agency must provide reasons for not accepting. 177. Subsection 73M(3) would provide that the Inspector-General may publish a copy of a response provided under new subsection 73M(2) on the Inspector-General's website or Department's website. Item 16 Subsection 86J(3) 178. Item 16 would repeal current subsection 86J(3) and substitute a new subsection that would reflect the amendments to the Authority's additional powers as a result of the establishment of the Inspector-General. This consequential amendment would remove redundant references to powers that have been transferred from the Authority to the Inspector-General. Item 17 Paragraphs 86J(4)(b) and (c) 179. Item 17 would repeal current paragraphs (4)(b) and (c) in subsection 86J(4) that relate to matters of monitoring compliance with Part 2A (and regulations made for the purposes of Part 2A) by the Authority. 180. As this function would be transferred to the Inspector-General, it is no longer appropriate for authorised officers appointed by the Authority to have the powers mentioned in those paragraphs. Item 18 At the end of Part 2A 181. Item 18 would add two new sections at the end of Part 2A. Section 86K Additional functions of the Inspector-General 182. New section 86K would ensure that the Inspector-General has the power to perform its functions and duties and exercise the powers conferred on it under Part 2A. For example, the Inspector-General may appoint authorised compliance officers, under new proposed section 222G, to enter land for the purpose of monitoring matters relevant to critical human water needs. 183. Subsection 86K(1) would provide that the Inspector-General would have the same powers in relation to critical human water needs in a Basin State that is a referring State, or in the Australian Capital Territory, as the Inspector-General has in connection 42

with the performance of the Inspector-General's other functions under this Act. This approach would be consistent with the Authority's additional powers under section 86J of the Act. For example, the Inspector-General may appoint authorised compliance officers, under new proposed section 222G, to enter land for the purpose of monitoring matters relevant to critical human water needs. 184. Subsection 86K(2) would provide that the application of subsection 86K(1) to the Inspector-General's powers under Part 10AA to enter land and gather information for the purposes of monitoring compliance 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). 185. Subsection 86K(3) would provide that Part 10AA applies as if references to designated compliance provisions included references to a provision of Part 2A or regulations made for the purposes of Part 2A. The effect of the subsection would be to: include a thing with respect to which a provision of Part 2A has or is suspected of having been contravened into the definition of 'evidential material' under subsection 4(1) of the Act; and provide the Inspector-General, or an authorised compliance officer, with the power to perform functions and exercise powers under Part 10AA (monitoring compliance, searching for evidence of non-compliance and gathering information) for purposes relating to compliance with Part 2A. 186. Subsection 86K(4) would prohibit an authorised compliance officer from entering premises or exercising any of the powers under Subdivision B of Division 1 of Part 10AA except:  to the extent that is reasonably necessary to determine: o compliance with Part 2A, or regulations made for the purposes of Part 2A; o whether information provided to the Authority, pursuant to section 222D, in fulfilling its functions and duties under Part 2A is correct; or o whether information provided to the Inspector-General or its authorised compliance officer pursuant to section 238, in fulfilling its functions and duties under Part 2A, is correct.  if the authorised compliance officer has reasonable grounds to suspect that there may be evidential material on the premises relating to a possible contravention of Part 2A. 187. Subsection 86K(5) would provide that the Inspector-General must not require a person to give information under Division 3 of Part 10AA, as applied by the section, unless the Inspector-General has reason to believe that the person has information (in any form, including electronic) in their possession, custody or control which is relevant to the performance of the Inspector-General's functions, duties or exercising powers under Part 2A. Section 86L Functions and powers of the Inspector-General 188. Section 86L would provide that for the purposes of Part 2A, the Inspector-General is an appropriate enforcement agency. As such, the Inspector-General would have the 43

powers and functions conferred to it under Part 8 of the Act to allow it to enforce compliance with Part 2A. Item 19 Paragraph 137(a) 189. Item 19 would repeal the current paragraph (a) in section 137 and substitute a new paragraph (a). This amendment would reflect the removal of the Authority's position as the appropriate enforcement agency for contraventions of provisions of Part 2, Division 3 of Part 10 and regulations made for the purposes of Part 2. These amendments are necessary as these powers would be transferred from the Authority to the Inspector- General. 190. The new paragraph 137(a) would identify the Inspector-General as the appropriate enforcement agency for a contravention of: a designated compliance provision; a provision of Part 2A; and a regulation made for the purposes of Part 2A (Critical human water needs) or a provision of Part 10AB (Inspector-General of Water Compliance (inquiry powers)). 'Designated compliance provision' refers to the proposed new definition in subsection 4(1). Part 2A would also include additional functions of the Inspector-General. Item 20 At the end of section 137 191. Item 20 would add a new paragraph (d) in section 137. 192. Paragraph 137(d) would identify that the appropriate enforcement agency for a contravention of subsection 168(1) would be a person or body set out in paragraph 137(a), (b) or (c) for a contravention by the body corporate of the civil penalty provision referred to in paragraph 168(1)(a). Section 168 makes executive officers of body corporates subject to civil penalties in certain circumstances. 193. The effect of this amendment would be that appropriate enforcement agency for a contravention of subsection 168(1) by an executive officer would depend on the provision that was contravened by the body corporate. The appropriate enforcement agency would therefore be either the Inspector-General, the ACCC or the Minister, depending on the provision contravened. For example, if a body corporate contravenes a provision of Part 2 of the Act, the appropriate enforcement agency would be the Inspector-General. For the purposes of this paragraph, the contravention of subsection 168(1) would be termed 'the executive officer contravention'. Item 21 Section 140 (heading) 194. Item 21 would repeal the heading 'Injunctions for contravention of the Act, regulations or rules' in section 140, and substitute a new heading 'Grant of injunctions'. Item 22 Paragraph 140(5)(a) 195. Item 22 would insert 'the Basin Plan' in paragraph 140(5)(a). This would broaden the scope for a court to grant an injunction. Paragraph 140(5)(a) enables the court to grant an injunction requiring a person to implement a specified program for compliance with the Act, the regulations, the water charge rules or the water market rules. This item would provide an additional power, for the court to grant an injunction requiring a 44

person to implement a specified program for compliance with the Basin Plan. The purpose of this item is to broaden the range of enforcement mechanisms available to ensure compliance with the Basin Plan, thereby strengthening the Commonwealth's ability to improve water outcomes. Item 23 Paragraph 147(3)(a) and (b) 196. Item 23 would repeal the current paragraphs 147(3)(a) and (b) and substitute new paragraphs (a), (b), (c) and (d). This would set out the maximum pecuniary penalty that a court can impose for contravention of a civil penalty provision. 197. The new paragraphs would distinguish the amount to be imposed by a court depending on whether the wrongdoer is an individual or body corporate and whether a single or separate amount is specified for the civil penalty provision. If amounts are specified within the relevant civil penalty provision for individuals and body corporates, then they would apply. If only a single amount is specified however, the usual body corporate multiplier in the Commonwealth Guide applies. 198. For example, where a wrongdoer is a body corporate and a single amount is specified for the civil penalty provision, the maximum pecuniary penalty that would be imposed is 5 times the specified amount. This is in line with 3.1.4 of the Commonwealth Guide, which provides that the maximum penalty that can be imposed on a body corporate is 5 times higher than the penalty that can be imposed on a natural person. Item 24 At the end of section 147 199. Item 24 would add an additional subsection (6) in section 147 that would apply civil double jeopardy to pecuniary penalty orders. The new subsection would prohibit a court from making a pecuniary penalty order against a person under the Act if a pecuniary penalty order has been made against that person under a Commonwealth or State law, provided that the conduct to which the order relates is substantially the same. Items 25 Sections 148 and 149 200. Item 25 would repeal the current sections 148 and 149 and substitute new sections 148, 148A and 149. The new sections would mirror sections in the Regulatory Powers Act. Section 148 Multiple contraventions 201. New section 148 would mirror section 85 of the Regulatory Powers Act by providing that a court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision. Section 148A Proceedings may be heard together 202. New section 148A would mirror section 86 of the Regulatory Powers Act by enabling a court to hear two or more proceedings for a civil penalty order at the same time. Section 149 Civil evidence and procedure rules for pecuniary penalty orders 203. New section 149 would mirror section 87 of the Regulatory Powers Act by clarifying that civil, not criminal rules of evidence and procedure, apply to proceedings for pecuniary penalty orders. 45

Items 26, 27, 29 and 30 Section 151, Paragraph 152(1)(a), Section 153 and Section 154 204. These items would amend section 151, paragraph 152(1)(a), section 153 and section 154 by clarifying that a reference to a criminal proceeding or criminal proceedings for an offence, would include criminal proceedings for an offence against either a law of the Commonwealth law or a law of a State. This amendment would make it clear that this reference would extend to criminal proceedings for an offence against a law of a State. Item 28 Subsection 152(2) 205. Item 28 would repeal the current subsection 152(2) and substitute a new subsection. Subsection 152(2) would mirror subsection 89(2) of the Regulatory Powers Act by providing that, if the proceedings for a civil penalty order are not resumed, then the proceedings are dismissed, while costs must not be awarded in relation to the proceedings. Item 31 At the end of Division 4 of Part 8 206. Item 31 would insert a new Subdivision C (Miscellaneous) at the end of Division 4 of Part 8. The new Subdivision C would comprise five new sections that would mirror sections 92, 93, 94, 95 and 96 of the Regulatory Powers Act. These provisions create a framework for allowing the civil penalty provisions of the Bill to be enforced by obtaining an order for a person to pay a pecuniary penalty. Subdivision C--Miscellaneous Section 154A Ancillary contravention of civil penalty provisions 207. New section 154A would mirror section 92 of the Regulatory Powers Act by providing that conduct ancillary to the contravention of a civil penalty provision is considered a contravention of the provision itself. The section would set out the types of conduct that would be ancillary conduct contraventions of a civil penalty provision. Subsection 154A(2) would include a note referring to new proposed section 154C not applying to a contravention of new subsection 154A(1). Section 154B Continuing contraventions of civil penalty provisions 208. New section 154B would mirror section 93 of the Regulatory Powers Act by clarifying that certain continuing actions of non-compliance will be considered as separate contraventions. If an act or thing is required under a civil penalty provision within or before a particular time, then the obligation continues until that act or thing is done, or the period expires. If a person contravenes a civil penalty provision that requires an act or thing to be done, then a separate contravention occurs for each day the person does not do the act or thing. Section 154C State of mind 209. New section 154C would mirror section 94 of the Regulatory Powers Act by providing that it is not necessary to prove a person's state of mind in pecuniary penalty order proceedings against a person for a contravention of a civil penalty provision. 46

210. Subsection 154C(2) would provide that new subsection 154C(1) would not apply to an ancillary contravention of a civil penalty provision (set out in new section 154A). 211. Subsection 154C(3) would provide that new subsection 154C(1) would not affect the operation of section 154D (mistake of fact). 212. Subsection 154C(4) would provide that new subsection 154C(1) would not apply where the civil penalty provision, or a provision that relates to the civil penalty provision expressly provides otherwise. Section 154D Mistake of fact 213. New section 154D would mirror section 95 of the Regulatory Powers Act by providing that a person cannot be held liable for a pecuniary penalty order if their actions arose from a mistake of fact. Subsection 154D(3) would provide that the person who asserts mistake of fact has the evidential burden in relation to the matter. Section 154E Exceptions etc. to civil penalty provisions--burden of proof 214. New section 154E would mirror section 96 of the Regulatory Powers Act by providing that if a person wishes to rely on any exception, exemption, excuse, qualification or justification that applies in relation to the civil penalty provision, the person bears the evidential burden of proving that matter. 215. For example, a person who wished to rely on a mistake of fact in relation to a civil penalty provision for obstructing an authorised officer under new proposed section 222C would bear the evidential burden of proving the mistake of fact. This would be justified as the person's consideration of facts and beliefs are matters that are within that person's knowledge. Item 32 After section 155 216. Item 32 would insert new section 155A after section 155 that would specify an appropriate enforcement agency's relevant chief executive, for the purposes of exercising powers in relation to infringement notices. Section 155A Relevant chief executive 217. New section 155A would specify the person who would be considered the relevant chief executive for the purpose of exercising powers under Division 5 in relation to an infringement notice. This new section would be read in conjunction with new proposed paragraph 137(a). 218. Paragraph 155A(a) would provide that where the infringement notice was given by the Inspector-General, the Inspector-General would be the relevant chief executive for the purpose of exercising powers under Division 5 in relation to an infringement notice. 219. Paragraph 155A(b) would provide that where the infringement notice was given by the ACCC (as defined in subsection 4(1) of the Act, to mean the Australian Competition 47

and Consumer Commission), the ACCC would be the relevant chief executive for the purpose of exercising powers under Division 5 in relation to an infringement notice. 220. Paragraph 155A(c) would provide that where the infringement notice was given by the Minister, the Secretary of the Department would be the relevant chief executive for the purpose of exercising powers under Division 5 in relation to an infringement notice. Item 33 Subsection 156(3) 221. Item 33 would repeal subsection 156(3) and substitute new subsections (3) and (4). 222. Subsections 156(3) and (4) would align with subsections 103(3) and (4) of the Regulatory Powers Act by allowing one infringement notice to provide for multiple contraventions of a provision. 223. Unlike section 103 of the Regulatory Powers Act however, section 156 would not include a provision that provides that where a provision constitutes both a civil penalty provision and an offence provision, the infringement notice must relate to the provision as an offence provision. This is because under the Act, infringement notices are given in relation to the contravention of particular civil penalty provisions, as specified in subsection 156(1). 224. Subsections 156(3) and (4) would ensure that a single infringement notice relates only to a single contravention of a single designated civil penalty provision, unless the contravention relates to an action that should have been completed before a particular time and the ongoing failure to complete the Act constitutes multiple contraventions. 225. Subsection 156(3) would also include a note that refers to new section 154B for continuing contraventions of civil penalty provisions. Item 34 Sections 157 to 159 226. Item 34 would repeal and substitute sections 157, 158 and 159. The new sections would mirror sections 104, 105 and 106 in the Regulatory Powers Act. Section 157 Matters to be included in an infringement notice 227. New section 157 would mirror section 104 of the Regulatory Powers Act by setting out matters to be included in an infringement notice. 228. Subsection 157(1) would mirror subsection 104(1) of the Regulatory Powers Act by updating the standard content that must be included on each infringement notice. 229. These are: a unique identification number, a statement about the day on which the notice was given, the maximum penalty that a court could impose for each contravention, the amount of payable, that the payable amount is not an admission of liability, that the person may apply to have the payable period extended, how the notice can be withdrawn, and that the person may make written representations to seek the withdrawal of the notice. 48

230. Subsection 157(1) would differ from subsection 104(1) insofar as it reflects that the Act's infringement notices are given in relation to the contravention of particular civil penalty provisions, as specified in subsection 156(1), rather than offence provisions, as specified in the Regulatory Powers Act. 231. Subsection 157(2) would mirror subsection 104(2) of the Regulatory Powers Act by limiting the amount payable under an infringement notice to ensure that an infringement notice remains a lesser penalty than the available penalties under a pecuniary penalty order for the contravention of a civil penalty provision. 232. Subsection 157(3) would mirror subsection 104(3) of the Regulatory Powers Act by providing how the amount to be stated in the infringement notice is to be worked out if an infringement notice relates to more than one alleged contravention of a civil penalty provision. Section 158 Extension of time to pay amount 233. New section 158 would mirror section 105 of the Regulatory Powers Act by allowing a person who has received an infringement notice to apply to the relevant chief executive for an extension of time to pay the infringement notice. For example, a person experiencing financial hardship or other difficulties could apply for an extension of time to pay the infringement notice. Section 159 Withdrawal of an infringement notice 234. New section 159 would mirror section 106 of the Regulatory Powers Act by setting out the processes for withdrawing an infringement notice. This would include subsections 159(1) and (2), which would enable a person to whom an infringement notice has been given to make written representations to the relevant chief executive seeking the withdrawal of the notice; and would enable the relevant chief executive to withdraw the notice whether or not the person has made such a written representation. 235. Subsection 159(3) would require written notice of the withdrawal of an infringement notice to be given to the person and set out the information that must be included in the notice. 236. Subsection 159(5) would require the Commonwealth to provide a refund where the infringement notice had been withdrawn and the person had already paid the amount stated in the notice. Item 35 Paragraph 163(2)(a) and (b) 237. Item 35 would insert 'the Basin Plan' into paragraphs 163(2)(a) and (b). 238. This would allow written undertakings to be accepted by the appropriate enforcement agency in situations where a person's action or inaction constitutes a contravention of the Basin Plan, as well as the Act, the regulations, the water charge rules, or the water market rules. 49

Items 36 to 38, 40 to 41 Section 165 (heading), Subsection 165(1), Subsection 165(2), Subsection 165(3) and Subsection 165(5) 239. These items would omit the reference to 'Authority' and substitute 'Inspector-General' in the heading for section 165 and within subsections 165(1), (2), (3) and (5). This would reflect the transfer of power to issue an enforcement notice from the Authority to the Inspector-General. Item 39 At the end of subsection 165(2) 240. Item 39 would add a note to subsection 165(2) to highlight the new subsection 165(6). The note would provide that the Inspector-General's power to direct a person to take action under subsection 165(2) is limited by the new proposed subsection 165(6). Item 42 At the end of section 165 241. Item 42 would add a new subsection (6) at the end of section 165 that would limit the application of section 165. Subsection 165(6) would limit the powers of the Inspector- General to direct a person to certain circumstances and persons. This would allow the direction to be supported by the Commonwealth's constitutional powers. Item 43 Section 166 242. Item 43 would repeal the current section 166 and substitute a new section 166. Section 166 Failing to comply with enforcement notice 243. New section 166 would repeal the existing civil penalty provision for failing to comply with an enforcement notice and substitute a new strict liability offence for failing to comply with an enforcement notice. 244. Subsection 166(1) would provide that a person contravenes the subsection if the person has been given a notice under subsection 165(2) and the person fails to comply with the direction in the notice. 245. Subsection 166(2) would set out that a person commits a strict liability offence if new subsection 166(1) is contravened. The penalty for this strict liability offence would be 30 penalty units. 246. Subsection 166(2) also inserts a note that refers to new proposed section 170A which refers the reader to Chapter 2 of the Criminal Code in relation to the physical elements of the offence. Under subdivision 6.1 of Chapter 2 of the Criminal Code, the effect of strict liability applying to the failure to comply with an enforcement notice is that no corresponding fault element attaches to the contravention. This would be appropriate in this context as the person should know, or ought to know their obligations to comply with the directions of the notice. These actions required of the person will be set out in the notice, as required by section 165. 247. The effect of strict liability applying to this offence would be that the prosecution would only need to prove the physical element that the circumstances existed, that is, that the person was given an enforcement notice under subsection 165(2) and the person failed to comply with that notice. Requiring proof of fault would undermine the 50

effectiveness of the offence. The application of strict liability is justified for this offence considering the need to enforce compliance of the implementation of the Basin Plan and WRPs, especially where the penalty for the offence is relatively low. 248. Under subdivision 6.1 of Chapter 2 of the Criminal Code, the defence of mistake of fact is available for offences of strict liability. According to this defence, a person is not criminally responsible for an offence if the person considered whether relevant circumstances existed and was under a mistaken but reasonable belief that they did not. For example, if the person had a reasonable belief that they had complied with the direction in the notice. However, ignorance or a mistake about the law creating the offence (or another relevant law) does not provide a defence. 249. Subsection 166(3) would provide that a separate offence is committed in respect of each day during which the contravention continues. 250. Subsection 166(4) would provide that a person is liable to a civil penalty if the person contravenes new subsection 166(1). The penalty for this civil penalty would be 600 penalty units. This is the same as the civil penalty under the existing section 166 and reflects the seriousness of failing to comply with an enforcement notice. 251. Subsection 166(4) would also insert a note that would set out that it is generally not necessary to prove the person's state of mind for proceedings involving a contravention of a civil penalty provision. This note would refer to new section 154C. The effect of this provision is that it would be necessary for the regulator to prove that the accused person engaged in the physical conduct of the civil penalty provision but would not need to prove that the person did so knowingly, intentionally, recklessly or negligently. 252. Subsection 166(5) would provide that a person who contravened new subsection 166(1) would commit a separate civil contravention each day during which the contravention continues. Item 44 Section 167 253. Item 44 would omit the reference to 'The Authority' from section 167 and substitute 'The Inspector-General'. This would transfer the power to vary or revoke a notice under section 165 from the Authority to the Inspector-General. This would be a consequential amendment as the power to issue a notice would be transferred from the Authority to the Inspector-General above. Item 45 After Division 7 of Part 8 254. Item 45 would insert a new Division 7A that would contain one new section. Division 7A--Public warning notices Section 167A Inspector-General may issue public warning notice 255. New section 167A would permit the Inspector-General to issue a written notice to the public about the conduct of a person, in certain circumstances. 51

256. Subsection 167A(1) would provide that the Inspector-General may issue a public written notice containing a warning about the conduct of a person if the Inspector- General:  reasonably suspects the conduct of the person may contravene sections 34, 35, 58, 59 or a provision of Division 3A of Part 2 of the Act;  is satisfied that injury or damage to human beings; or damage to property; or harm to, or loss of Basin water resources, has occurred, is occurring, or is likely to occur as a result of the conduct; and  is satisfied that it is in the public interest to issue the notice. 257. The effect of this would be that the Inspector-General would be permitted to disseminate and circulate information about the conduct of a person to key stakeholders and the broader community. This would be appropriate as it would allow the Inspector- General to use public warning notices to prevent or reduce the effect of a contravention by alerting the public to the alleged misconduct. It would also establish a more flexible and responsive tool for the Inspector-General to support timely intervention against conduct. For example, the Inspector-General would be permitted to issue a public warning notice in relation to the conduct of a person that was inconsistent with the Basin Plan. The public warning notice would advise individuals about the circumstances of the conduct and may provide sufficient notice to prevent the conduct from damaging other Basin water resources. 258. Subsection 167A(1) would also include two additional notes. Note 1 would provide that the power under new subsection 167A(1) may be delegated to an SES employee or an acting SES employee, under new proposed subsection 215W(3). Note 2 would refer to the Inspector-General being protected from liability by new proposed section 215X, should loss, damage or injury be suffered by another person as a result of the issuing of a public notice under section 167A. 259. Subsection 167A(2) would explain that the written notice issued by the Inspector- General to warn the public under new subsection 167A(1) is not a legislative instrument for the purposes of subsection 8(1) of the Legislation Act. This provision is declaratory of the law and is included to assist the reader. A written notice is administrative in nature. 260. Subsection 167A(3) would for the purposes of this section, define 'conduct' to include acts or omissions. Item 46 Paragraph 168(1)(d) 261. Item 46 would omit the reference to 'all' from paragraph 168(1)(d). 262. This would mean that an executive officer of a body corporate would be required to take reasonable steps to prevent a contravention of a civil penalty provision rather than taking 'all' reasonable steps to prevent a contravention. 52

Item 47 Subsection 168(3) 263. Item 47 would omit 'contravened by the body corporate' from subsection 168(3) and substitute 'referred to in paragraph (1)(a)'. This item would clarify that the relevant civil penalty provision is the civil penalty provision breached by the body corporate, referred to in paragraph 168(1)(a). For example, where an executive officer of a body corporate fails to take reasonable steps to prevent a contravention of new subsection 73A(5), the executive officer of the relevant body corporate could be found to have breached the civil penalty provision in section 168, and therefore be liable to a pecuniary penalty order not more than the amount prescribed in new paragraph 73A(5)(a), in addition to the pecuniary penalty order which could be pursued against the body corporate. Item 48 Subsection 169(1) 264. Item 48 would omit the reference to 'all' from subsection 169(1). This amendment would be consequential to the above item that would omit the reference to 'all' from paragraph 168(1)(d). Item 49 Subparagraphs 169(1)(a)(i) and (iii) 265. Item 49 would insert 'the Basin Plan' into subparagraphs 169(1)(a)(i) and (iii). 266. The effect of this change would be that in determining whether an executive officer of a body corporate failed to take reasonable steps for the purposes of section 168, a court would have regard to:  whether the body corporate arranges regular professional assessment of compliance with the Basin Plan, as well as the Act, the regulations, the water charge rules, and the water market rules; and  whether the body's employees, agents and contractors have a reasonable knowledge and understanding of the requirements to comply with the Basin Plan, as well as the Act, the regulations, the water charge rules, and the water market rules as far as those requirements affect the employees, agents or contractors concerned. Item 50 After subparagraph 169(1)(b)(i) 267. Item 50 would insert a new subparagraph (ia) into paragraph 169(1)(b). 268. The effect of this would be that in determining whether an executive officer of a body corporate failed to take reasonable steps for the purposes of section 168, a court would have regard to what action an officer took when they became aware that the body was contravening the Basin Plan, as well as the Act, the regulations, the water charge rules, and the water market rules. Items 51 and 53 Subsections 170(1) and (3) 269. These items would insert 'and each legislative instrument made under this Act' after a reference to 'this Act' in subsections 170(1) and (3). This would extend the application of subsections 170(1) and (3) to each legislative instrument made under the Act, which would include the Basin Plan (see section 33). 53

270. Item 51 would extend the operation of subsection 170(1) to apply to each legislative instrument made under the Act, as well as the Act. 271. Item 53 would extend the operation of subsection 170(3) to apply to each legislative instrument made under the Act, as well as the Act. Items 52 and 54 Subsections 170(2) and (4) 272. These items would insert 'or any legislative instrument made under this Act' after a reference to 'this Act' in subsections 170(2) and (4). This would extend the application of subsections 170(2) and (4) to any legislative instruments made under the Act, which would include the Basin Plan (see section 33). 273. Item 52 would extend the operation of subsection 170(2) to apply to determining the state of mind of bodies corporate in relation to a legislative instrument made under the Act, as well as the Act, where necessary. 274. Item 54 would extend the operation of subsection 170(4) to apply to determining the state of mind by persons other than bodies corporate in relation to a legislative instrument made under the Act, as well as the Act. Item 55 Paragraphs 170(5)(a) and (c) 275. Item 55 would omit the reference to 'this Act, the regulations, the water charge rules and the water market rules', and substitute 'this Act and each legislative instrument made under this Act'. 276. This would broaden the application of paragraphs 170(5)(a) and (c) beyond the regulations, the water charge rules, and the water market rules to include each legislative instrument made under the Act, which would include the Basin Plan. Item 56 At the end of Part 8 277. Item 56 would add a new Division 10 at the end of Part 8. The new Division 10 would comprise two new sections. Section 170A Physical elements of offences 278. New section 170A would have the effect that the physical elements of an offence would be set out in the conduct provision. 279. Subsection 170A(1) would provide that this section applies where a provision of the Act provides that where a person contravenes a conduct provision, the person commits an offence. A conduct provision is generally an earlier subsection in the same section that sets out the elements of the contravention. 280. Subsection 170A(2) would provide that the physical elements of the offence would be set out in the conduct provision, for the purposes of Chapter 2 of the Criminal Code. 54

Section 170B Contravening an offence provision or a civil penalty provision 281. Subsection 170B(1) would set out that this section applies where a provision of the Act provides that where a person contravenes a conduct provision, the person commits an offence or is liable to a civil penalty. 282. Subsection 170B(2) would provide that a reference to a contravention of an offence or a civil penalty provision include a reference to a contravention of the conduct provision. For example, new section 170B would clarify that where a reference was made to an offence provision, that reference would include a reference to the conduct provision that constitutes the contravention. Item 57 Paragraphs 175(2)(c) and (d) 283. Item 57 would repeal paragraphs 175(2)(c) and (d) from subsection 175(2). 284. This would be a consequential amendment to reflect the transfer of powers from the Authority to the Inspector-General. The powers of monitoring compliance with, or the investigation of possible contraventions and enforcement powers under Part 8 would be transferred to the Inspector-General in below items. Item 58 Subsection 200(3) 285. Item 58 would omit the reference to 'section 238 or Part 8' and substitute 'section 222D' into subsection 200(3). 286. This would be a consequential amendment to reflect the power for the Authority to request information under section 238 has been transferred to the Inspector-General. Similarly, the enforcement powers under Part 8 have been transferred to the Inspector- General. The effect of this amendment would be that the Authority can only delegate power to require information under the new proposed section 222D to an Authority member or an SES employee, including an acting SES, who is a member of the Authority staff. Item 59 Paragraph 210(1)(i) 287. Item 59 would omit the reference to '(otherwise than under Part 8)' from paragraph 210(1)(i). This would be a consequential amendment to the transfer of power from the Authority to the Inspector-General. Items 60 to 65 Amendments to confidential information requirements for the Authority 288. Items 60 to 65 would amend existing requirements for the Authority to protect confidential information that has been obtained or given to the Authority in the performance of its functions and duties. Item 60 Section 215 (heading) 289. Item 60 would repeal the current heading 'Confidentiality' for section 215 and substitute 'Protection of confidential information'. This would provide clarity about the contents of section 215. This heading would be consistent with new proposed section 215U that would create requirements for the Inspector-General to protect 55

confidential information that has been obtained or given to the Inspector-General in the performance of the Inspector-General's functions and duties. Item 61 Subsection 215(1) 290. Item 61 would omit the reference to 'all' from subsection 215(1). 291. This would mean that the Authority must take reasonable measures to protect unauthorised use or disclosure of information rather than 'all' reasonable measures to provide confidential information. This revised threshold would be a lower requirement for the Authority but would allow the Authority to meet its obligations to protect unauthorised use or disclosure of information even if the Authority has not taken all reasonable measures. A similar obligation would apply to the Inspector-General to take 'reasonable measures' to protect confidential information under new proposed Division 5 of Part 9A. Items 62 and 63 Subsections 215(2) and 215(4) 292. These items would omit the reference to 'Disclosing' from subsections 215(2) and (4) and substitute 'For the purposes of subsection (1), disclosing'. This would clarify that the disclosure referred to in subsections (2) and (4) refers specifically to disclosure set out in subsection 215(1). Item 64 Paragraph 214(4)(b) 293. Item 64 would repeal the current paragraph 215(4)(b) and substitute a new paragraph. New paragraph 215(4)(b) would continue to permit disclosure of information to the Secretary for the purpose of advising the Minister, and would expressly enable an officer or employee in the Department to disclose confidential information for the purpose of advising the Minister. Item 65 Subsection 215(6) 294. Item 65 would omit the reference to 'this section' from subsection 215(6) and substitute 'subsection (1)'. This would clarify that the disclosure referred to in subsection 215(6) refers specifically to disclosure set out in subsection 215(1). Item 66 At the end of Division 6 of Part 9 295. Item 66 would add a new section 215A at the end of Division 6 of Part 9. Section 215A Disclosure of information to the Minister or the Secretary of the Department 296. New section 215A would authorise the Authority to disclose information to the Minister or the Secretary of the Department. 297. Subsection 215A(1) would set out that 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. 298. Subsection 215A(2) would permit the Authority to disclose information to the Minister, or, for the purpose of advising the Minister, to the Secretary of the Department or an officer or employee in the Department. 56

299. Subsection 215A(2) would also include two notes. Note 1 would indicate that new subsection 215A(2) constitutes an authorisation for the purposes of the Privacy Act and other laws (including the common law). Note 2 would refer to new proposed section 215UC which would allow the Authority to 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. Item 67 After Part 9 300. Item 67 would insert a new Part 9A that would comprise seven new Divisions with a number of new sections contained within. The new Part 9A would establish the Inspector-General and set out the functions of the Inspector-General. Part 9A--Inspector-General of Water Compliance (administrative provisions) Division 1--Inspector-General of Water Compliance: establishment and functions Section 215B Inspector-General of Water Compliance 301. New section 215B would establish the Inspector-General of Water Compliance. Section 215C Functions of the Inspector-General 302. New section 215C would set out the functions and powers of the Inspector-General. 303. The Inspector-General's functions include: monitoring and providing independent oversight of certain Commonwealth and Basin States activities in relation to water resources in the Basin; engaging with the Australian community; functions that have been conferred; and anything incidental or conducive to the above functions. 304. Paragraph 215C(1)(a) would provide that one of the Inspector-General's functions is to monitor and provide independent oversight of the performance of Commonwealth agencies' functions and powers under the Act, regulations, other legislative instruments under the Act, the Basin Plan and WRPs. 305. Paragraph 215C(1)(b) would provide that one of the Inspector-General's functions is to monitor and provide independent oversight of the performance of the Basin States' obligations in relation to the management of Basin water resources under the Act, regulations, other legislative instruments under the Act, the Basin Plan and WRPs. 306. Paragraph 215C(1)(c) would provide that one of the Inspector-General's functions is to monitor and provide independent oversight of the implementation by Commonwealth agencies and Basin State agencies of the commitments in the agreements in subsection 215C(3). 307. Paragraph 215C(1)(d) would provide that one of the Inspector-General's functions is to engage with the Australian community regarding the management of Basin water resources. 57

308. Paragraph 215C(1)(e) would provide that the Inspector-General's functions include any function conferred by Part 8 (enforcement), Part 10AA (special powers), and Part 10AB (inquiry powers). For example, new paragraph 137(a) in Part 8 provides that the Inspector-General is to be the appropriate enforcement agency for contraventions of provisions of Part 2A, Part 10AB or designated compliance provisions. This is a conferred function. 309. Paragraph 215C(1)(f) would provide that the Inspector-General's functions include any other function conferred by the Act, the Basin Plan or any other legislative instrument made under the Act. 310. Paragraph 215C(1)(g) would provide that the Inspector-General's functions include doing anything incidental to, or conducive to, the performance of the other listed functions in new subsection 215C(1). 311. Subsection 215C(2) would provide that the Inspector-General's functions do not include monitoring and providing oversight of the ACCC in giving advice relating to water trading rules and the fees the Authority may charge for its services, or the Productivity Commission in conducting an inquiry into a matter referred under sections 87 or 88 of the Act. 312. Subsection 215C(3) would set out the agreements referred to in subsection 215C(1). Section 215D Minister may give directions to Inspector-General 313. New section 215D would allow the Minister to give directions to the Inspector-General. 314. Subsection 215D(1) would provide that the Minister may give directions to the Inspector-General about the performance of the Inspector-General's functions, provided the directions are consistent with the objects of the Act. The objects of the Act are set out in section 3. 315. Subsection 215D(2) would provide that the Inspector-General would not be subject to direction under new subsection 215D(1) in relation to audits, enforcement of Part 2A of the Act (Critical human water needs), enforcement under Part 8 of the Act, monitoring of compliance with, or investigation of, designated compliance provisions, and the exercise of information-gathering powers under Division 3 of Part 10AA of the Act. For example, if the Minister were to issue a direction to the Inspector-General regarding an audit being conducted by the Inspector-General pursuant to new section 73L, the Inspector-General would not be required to follow it because the content of the direction would fall within a category of subject matter that is exempt from the operation of new subsection 215D(1) by new paragraph 215D(2)(a). 316. Subsection 215D(3) would mean that where a direction is given to by the Minister to the Inspector-General under new subsection 215D(1), the Inspector-General would be required to fulfill the direction. 58

317. Subsection 215D(4) would clarify that a direction made under new subsection 215D(1) is not a legislative instrument for the purposes of subsection 8(1) of the Legislation Act. This provision is declaratory of the law and is included to assist the reader. A direction made under new subsection 215D(1) is administrative in nature. Division 2--Annual work plans Section 215E Inspector-General must prepare annual work plan 318. New section 215E would set out that the Inspector-General must produce an annual work plan. 319. Subsection 215E(1) would provide that the Inspector-General is required to prepare a work plan in writing for each financial year. 320. Subsection 215E(2) would provide that the annual work plan must set out the Inspector- General's key outcomes and priorities for the financial year. 321. Subsection 215E(3) would clarify that a work plan for a financial year is not a legislative instrument for the purposes of subsection 8(1) of the Legislation Act. This provision is declaratory of the law and is included to assist the reader. A work plan is not legislative in nature. 322. Subsection 215E(4) would provide that the Inspector-General is required to publish the finalised work plan on the Inspector-General's or Department's website as soon as practicable after it has been finalised. This would encourage transparency and offer a public statement of intent to stakeholders and concerned interest groups as to the Inspector-General's priorities for the coming financial year. Section 215F Review of annual work plan 323. New section 215F would require that the annual work plan be reviewed. 324. Subsection 215F(1) would require that the Inspector-General must review the work plan established under new proposed section 215E at least once during the financial year. 325. Subsection 215F(2) would provide that the review must consider whether the work plan continues to be appropriate, having regard to the nature of the Inspector-General's functions and the resources available to perform those functions. Section 215G Variation of annual work plan 326. New section 215G would allow the Inspector-General to vary the annual work plan in specified circumstances. 327. Subsection 215G(1) would provide that the Inspector-General may vary the work plan for a financial year, to take into account the findings of a review conducted under section 215F, or if the variation is necessary for any other reason. 59

328. Subsection 215G(2) would provide that the Inspector-General is required to publish the varied work plan on the Inspector-General's or Department's website as soon as practicable after it has been finalised. This publication would be in line with the requirements under new subsection 215E(4). 329. Subsection 215G(3) would clarify that a varied work plan made under this section is not a legislative instrument for the purposes of subsection 8(1) of the Legislation Act. This provision is declaratory of the law and is included to assist the reader. A varied work plan made under this section is administrative in nature. Division 3--Administrative provisions Section 215J Appointment 330. New section 215J would specify how the Inspector-General is to be appointed, the basis of the appointment and eligibility requirements of the position. 331. Subsection 215J(1) would provide that the Inspector-General is to be appointed by the Governor-General by written instrument. Subsection 215J(1) would include a note that would make it clear that the Inspector-General may be reappointed, subject to the time limits set out in new proposed subsection 215K(2). 332. Subsection 215J(2) would provide that the Inspector-General is to be appointed on a full-time basis. 333. Subsection 215J(3) would set out that in order to be eligible for appointment as Inspector-General, an individual must, at the time of appointment, have a high level of relevant expertise and not be a member of the governing body of a relevant interest group. 334. Paragraph 215J(3)(a) would specify that an individual must have a high level of expertise in one or more fields relevant to the Inspector-General's functions. The Inspector-General's functions would be set out in new section 215C. The Inspector- General could have, for example, expertise in water resource management, regulatory affairs and/or public sector administration. 335. Paragraph 215J(3)(b) would specify that an individual cannot be appointed if, at the time of appointment, they are the member of the governing body of a relevant interest group. This term is defined in subsection 178(4) of the Act. 336. The requirement would not preclude any such individual from being nominated for appointment. However, the candidate would be required to resign their membership of the governing body prior to any appointment as Inspector-General. This subsection would complement the limitations on the ability of the Inspector-General to undertake other paid work once appointed, provided for in new proposed section 215M. This requirement would minimise the opportunity for conflicts of interest. Subsection 215J(3) would also include a note referring to subsection 178(4) of the Act that defines what is meant by a member of the governing body of a relevant interest group. 60

Section 215JA Acting appointments 337. New section 215JA would provide that the Minister may, by written instrument, appoint an individual to act as the Inspector-General:  during a vacancy in the office of the Inspector-General (whether or not an appointment has previously been made to the office); or  during any, or all periods when the Inspector-General is absent from duty or Australia or is unable, for any reason, to perform the duties of the office. 338. Section 215JA would also include a note that would refer to sections 33AB and 33A of the Acts Interpretation Act 1901 (the Acts Interpretation Act) in relation to rules that apply to acting Inspector-General appointments. Section 215K Term of office 339. New section 215K would set out the term of office period for the Inspector-General. 340. Subsection 215K(1) would provide that the Inspector-General holds office for the period specified in the instrument of appointment. The maximum period that the Inspector-General could be appointed is four years. 341. Subsection 215K(2) sets out that the Inspector-General must not hold office for a total of more than eight years. 342. Limitations on the term of office for statutory appointments to external accountability and oversight roles within government is a common feature of such roles. The purpose of this provision is to ensure the currency of leadership, expertise and effectiveness of appointees. Section 215KA Application of finance law 343. New section 215KA would provide that for the purposes of the finance law, within the meaning of the Public Governance, Performance and Accountability Act 2013 (the PGPA Act), the Inspector-General is an official of the Department. 344. This would mean that, as an official, the Inspector-General would be required to:  exercise due care and diligence;  act honestly, in good faith and for a proper purpose;  not improperly use the Inspector-General's position or information; and  disclose any material personal interest that relates to the affairs of the Inspector- General. 345. These duties are set out in Chapter 2, Part 2-2, Division 3, subdivision A of the PGPA Act. Section 215L Remuneration 346. New section 215L would provide the arrangements governing the Inspector-General's remuneration. 61

347. Subsection 215L(1) would provide that the Inspector-General's remuneration is to be determined by the Remuneration Tribunal. However, if no determination of remuneration by the Tribunal is in operation, the Inspector-General is to be paid the remuneration that is determined by a legislative instrument made by the Minister under new proposed subsection 215L(5). 348. Subsection 215L(2) would provide that the Inspector-General is to be paid the allowances that the Minister determines by legislative instrument under new proposed subsection 215L(5). 349. Subsection 215L(3) would provide that subsections 7(9) and (13) of the Remuneration Tribunal Act 1973 (the Remuneration Tribunal Act) do not apply in relation to the office of the Inspector-General. 350. Subsection 215L(3) also includes a note that the effect of new subsection 215L(3) would be that the Inspector-General's remuneration and allowances would not be paid out of money appropriated under the Remuneration Tribunal Act. 351. Subsection 215L(4) would provide that new section 215L would have effect subject to the Remuneration Tribunal Act, except as provided by new subsection 215L(3). It is standard practice for remuneration of certain Commonwealth officers to be determined by the Remuneration Tribunal. It is the Remuneration Tribunal's role to determine, report on and provide advice about remuneration, including allowances and entitlements. 352. Subsection 215L(5) would enable the Minister to determine remuneration and allowances by legislative instrument. Section 215LA Leave of absence for Inspector-General 353. New section 215LA would provide for the Inspector-General's leave of absence entitlements. 354. Subsection 215LA(1) would provide that the Inspector-General has the recreation leave entitlements that are determined by the Remuneration Tribunal. 355. Subsection 215LA(2) would provide that 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. Section 215M Engaging in other paid work 356. New section 215M would restrict the Inspector-General from engaging in other paid work. 357. Subsection 215M(1) would provide that the Inspector-General must not engage in paid work outside the Inspector-General's duties without the Minister's approval. 62

358. This would mitigate conflicts of interest that may arise in relation to outside interests and the Inspector-General's functions. This would complement the prohibition on appointing an Inspector-General who holds membership to certain governing bodies as set out in new proposed section 215J. For example, if the Inspector-General engages in paid employment without the approval of the Minister, the Minister may terminate the Inspector-General's appointment pursuant to new proposed paragraph 215R(2)(c). Section 215N Disclosure of interests 359. New section 215N would provide that the Inspector-General must disclose interests. 360. Section 215N(1) would impose an obligation on the Inspector-General to give written notice to the Minister of all interests, pecuniary or otherwise, that the Inspector-General has or acquires which could conflict with the proper performance of the Inspector- General's functions. This obligation would be similar to the requirements for other similar statutory office holders such as the Inspector-General of Biosecurity. 361. Subsection 215N(2) would provide that new subsection 215N(1) would apply in addition to any rules made for the purposes of section 29 of the PGPA Act. 362. The purpose of new proposed section 215N, together with the limitations imposed on engaging in paid work by new proposed section 215M and the bar on appointing a current member of a governing body of a relevant interest group in new section 215J, is to ensure the independence of the office of the Inspector-General. Section 215P Other terms and conditions 363. New section 215P would provide that the Inspector-General holds office on terms and conditions (if any) in relation to matters not covered by the Act that are determined by the Minister. For example, these terms may specify the location where the Inspector- General would be based. Section 215Q Resignation 364. New section 215Q would provide for the Inspector-General's resignation. 365. Subsection 215Q(1) would provide that the Inspector-General may resign by giving the Governor-General a written resignation. 366. Subsection 215Q(2) would provide that 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. Section 215R Termination of appointment 367. New section 215R would provide the grounds on which the Governor-General may terminate the appointment of the Inspector-General. The purpose of this section is to ensure that the Governor-General be able to terminate the appointment of an Inspector- General who is not properly performing, or cannot properly perform, the duties of the Inspector-General. 63

368. Subsection 215R(1) would provide that the Governor-General may terminate the appointment of the Inspector-General for misbehaviour or if the Inspector-General is unable to perform the Inspector-General's duties because of physical or mental incapacity. 369. Subsection 215R(2) would provide that the Governor-General may terminate the appointment if the Inspector-General:  becomes bankrupt; applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; compounds with one or more of the Inspector-General's creditors; or makes an assignment of the Inspector-General's remuneration for the benefit of one or more of the Inspector-General's creditors;  is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;  engages in outside paid work without the approval of the Minister; or  fails, without reasonable excuse, to comply with new subsection 215N(1) or section 29 of the PGPA Act (which deals with the duty to disclose interests) or rules made for the purposes of that section. 370. The grounds for the termination of the appointment of the Inspector-General would be similar to terminating the appointment of other similar statutory office holders such as the Inspector-General of Biosecurity and the Inspector-General of Live Animal Exports. Section 215S Staff and persons assisting the Inspector-General 371. New section 215S would provide the staff and other persons that may assist the Inspector-General. 372. Subsection 215S(1) would provide that staff assisting the Inspector-General are to be persons who are engaged under the Public Service Act 1999 and who are made available to the Inspector-General by the Secretary. 373. Subsection 215S(2) would further provide that the Inspector-General may be assisted by employees of Commonwealth Agencies, officers and employees of a State, or officers and employees of a Commonwealth or State authority, if their services are made available. For example, this would provide for the possibility of joint investigations or inquiries, or for a state or Commonwealth officer to assist with any of the Inspector-General's functions. Division 4--Advisory panels Section 215T Advisory panels 374. New proposed section 215T would allow the Inspector-General to establish advisory panels. 375. Subsection 215T(1) would enable the Inspector-General to establish, by writing, one or more advisory panels to assist the Inspector-General in performing any of the Inspector-General's functions. 64

376. An advisory panel established by the Inspector-General could be similar in nature to those advisory committees established by the Authority to assist the Authority in the exercise of its functions. Unlike the Authority that has an obligation to establish an advisory committee, the Inspector-General would have a discretionary power to establish an advisory panel. 377. An advisory panel could be established to assist and provide highly technical or specialised advice to the Inspector-General. For example, the Inspector-General could establish an advisory panel comprising of experts to assist the Inspector-General in the Inspector-General's consideration of matters relevant to an inquiry being conducted under new proposed section 239AA. Advisory panels would enable the Inspector- General to access advice which is independent of the Department, Basin States, and the Authority. 378. Subsection 215T(2) would provide that an advisory panel established under new subsection 215T(1) would consist of individuals appointed by the Inspector-General under new proposed subsection 215TA(1). 379. Subsection 215T(3) would clarify that an instrument to establish an advisory panel made under new subsection 215T(1) is not a legislative instrument for the purposes of subsection 8(1) of the Legislation Act. This provision is declaratory of the law and is included to assist the reader. An instrument to establish an advisory panel is administrative in nature. Section 215TA Appointment of advisory panels 380. New section 215TA would set out how the advisory panel members would be appointed. 381. Subsection 215TA(1) would provide that each advisory panel member is to be appointed by the Inspector-General by a written instrument. Subsection 215TA(1) would also include a note that the power of the Inspector-General to appoint a member is taken to include a power of reappointment as in section 33AA of the Acts Interpretation Act. 382. Subsection 215TA(2) would provide that instruments used to appoint members to the advisory panel may determine the terms and conditions of the appointments, including remuneration and allowances. 383. Subsection 215TA(3) would provide that the Inspector-General has the power to terminate an appointment at any time in writing. 384. Subsection 215TA(4) would provide that an advisory panel member may resign at any time provided that the member has provided their written resignation to the Inspector- General. The resignation would take effect on the day that the Inspector-General receives the resignation or on a later day specified in the resignation. 65

Section 215TB Procedural matters 385. New section 215TB would enable the Inspector-General to give procedural directions to an advisory panel. 386. Subsection 215TB(1) would allow the Inspector-General to give written procedural directions to an advisory panel established under new subsection 215T(1). The written procedural directions could include directions as to the way the advisory panel carries out its functions; and procedures to be followed in relation to meetings. For example, procedural directions could include directions on how the advisory panel would convene, how often and what record-keeping processes should be observed. 387. Subsection 215TB(2) would provide that the Inspector-General would not be able to give a procedural direction about a matter to the advisory panel without first having regard to the recommendations of that panel about the matter. 388. Subsection 215TB(3) would clarify that a procedural direction given under new subsection 215TB(1) is not a legislative instrument for the purposes of subsection 8(1) of the Legislation Act. This provision is declaratory of the law and intended to assist the reader. A procedural direction given under new subsection 215TB(1) is administrative in nature. Division 5--Confidentiality Section 215U Protection of confidential information 389. New section 215U would establish the Inspector-General's obligation to take reasonable measures to protect confidential information. The new section would also provide guidance on authorised uses and disclosures of confidential information, and enable the creation of regulations that would provide further detail about authorised use and disclosure. This section would mirror the requirements of the Authority to protect confidential information as amended by items 60 to 65 above. 390. The purpose of this section is to provide confidence to those individuals that provide confidential information to the Inspector-General that their information would be used appropriately. 391. Subsection 215U(1) would provide that the Inspector-General must take reasonable measures to protect confidential information that is given to the Inspector-General in performing their functions or exercising their powers. 392. Subsections 215U(2) to (7) would set out the circumstances in which confidential information which was 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, may be disclosed, by outlining various authorised uses and disclosures. 66

393. Subsection 215U(2) would provide that for the purposes of new subsection 215U(1) the disclosure of summaries of information or statistics derived from information, would be authorised, provided that information relating to any particular person cannot be found out from those summaries or statistics. 394. Subsection 215U(3) would provide that for the purposes of new subsection 215U(1) the disclosure of information as required or permitted by a law of the Commonwealth or a prescribed law of a State, would be authorised. 395. Subsection 215U(4) would provide that for the purposes of new subsection 215U(1) disclosing information to the Minister; or disclosing information to the Secretary of the Department or an officer or employee in the Department for the purpose of advising the Minister, would be authorised. This is intended to avoid any ambiguity or doubt about the authorisation requirements for an officer or employee in the Department to have information disclosed to them by the Inspector-General or the staff assisting the Inspector-General. 396. Paragraph 215U(5)(a) would provide that for the purposes of new subsection 215U(1), disclosure of information would be authorised, where the person made the disclosure for the purpose of that person performing functions or exercising powers as the Inspector-General; as a member of the Inspector-General's staff; as a delegate of the Inspector-General; as an authorised compliance officer; or as a person who is authorised to perform a function or exercise a power of, or on behalf of, the Inspector- General. 397. Paragraph 215U(5)(b) would provide that for the purposes of subsection 215U(1), disclosure of information would be authorised, where the person made the disclosure for the purpose of performing the person's functions or exercising the person's powers by way of assisting the Inspector-General or a delegate of the Inspector-General. 398. Subsections 215U(6) and (7) would enable regulations to specify other authorised uses and disclosures and would make clear that the types of authorised uses and disclosures are not limited to the uses and disclosures set out in new subsections 215U(2) to (5) or any relevant regulations. 215UA Disclosure of information to the Authority, the Minister or the Secretary of the Department 399. New section 215UA would permit the Inspector-General to disclose information obtained in, or in connection with, the performance of the Inspector-General's functions or the exercise of the Inspector-General's powers, to the Authority, the Minister, or the Secretary of the Department. 400. Subsection 215UA(1) would set out that this section applies to information obtained in the performance of the Inspector-General's functions or exercise of powers. 67

401. Subsection 215UA(2) would permit the Inspector-General to disclose information to the Authority for the purposes of, or in connection with, the Authority's performance of functions or exercise of powers. For example, this would allow the Inspector-General to disclose information to the Authority for compliance purposes, as both the Inspector- General and the Authority would have a compliance role under the Act. Both the Inspector-General and the Authority are subject to analogous non-disclosure duties to ensure that information is protected as appropriate. 402. Subsection 215UA(2) would permit the Inspector-General to disclose information to the Minister; or the Secretary of the Department or an officer or employee in the Department, for the purpose of advising the Minister. For example, this would allow the Inspector-General to disclose information to the Minister for the purposes of briefing the Minister. It is anticipated that the Inspector-General's functions, particularly the oversight function, may lead to recommendations about policy or procedural matters that would need to be considered by the Authority, Minister and Secretary. This section would enable the Inspector-General to share these recommendations, and supporting materials, with the Authority, Minister and Secretary. 403. Subsections 215UA(2) and (3) would also include notes that those subsections constitute an authorisation for the purposes of the Privacy Act and other laws (including the common law). 404. Subsection 215UA(4) would provide that the disclosure of confidential information that is permitted under subsection 215UA(2) to the Authority would be considered authorised use and disclosure for the purposes of new subsection 215U(1). This would allow the Inspector-General to disclose confidential information obtained during the course of the Inspector-General's work to the Authority for the purposes of the Authority's work. 215UB Disclosure for purposes of enforcement or administration of Commonwealth or State laws 405. New section 215UB would permit the Inspector-General to disclose information for the purpose of enforcement or administration of Commonwealth or State laws. 406. Subsection 215UB(1) would provide that this section applies to information obtained in, or in connection with the performance of the Inspector-General functions or exercise of powers. 407. Subsection 215UB(2) would permit the Inspector-General to disclose information to an enforcement body, provided that the Inspector-General believed the disclosure was reasonably necessary for, or directly related to one of more of an enforcement body's enforcement-related activities. For example, this subsection would permit the Inspector- General to share information with a State police force where the Inspector-General believed that the information would be necessary to assist an investigation or enforcement of a State criminal law or law that imposes a pecuniary penalty. 68

408. Subsection 215UB(3) would permit the Inspector-General to disclose information to a Commonwealth or State agency for the purpose of the administration of a law of the Commonwealth or State that applies to the management of Basin water resources. 409. Subsections 215UB(2) and (3) would also include notes that those subsections constitute an authorisation for the purposes of the Privacy Act and other laws (including the common law). 410. Subsection 215UB(4) would provide that the disclosure of confidential information that is permitted under new subsections 215UB(2) or (3) is authorised use and disclosure of the information for the purposes of new subsection 215U(1). An example of information which might be disclosed under section 215UB is confidential information obtained by the Inspector-General after performing compliance functions under Subdivision B of Division 1of Part 10AA. 215UC Commonwealth agency may disclose information to the Inspector-General 411. New section 215UC would permit a Commonwealth agency, or a member of the staff of a Commonwealth agency to disclose information to the Inspector-General, provided that the disclosure is for the purposes of facilitating the performance of the Inspector- General's functions or exercise of powers. Section 215UC would also include a note that this section constitutes an authorisation for the purposes of the Privacy Act and other laws (including the common law). 215UD Information disclosed must not identify individual who wishes to remain anonymous 412. The purpose of new section 215UD would be to ensure that individuals who have voluntarily disclosed information to the Inspector-General can remain anonymous. If an individual voluntarily gives information to the Inspector-General and requests that they remain anonymous, the information disclosed under Division 5 of Part 9A must not include material identifying the individual or material that could be used to identify the individual. 413. For example, where an individual voluntarily discloses information to the Inspector- General concerning water theft or illegal pumping about their neighbour, and requests that they remain anonymous, the Inspector-General would not be able to disclose identifying material in any disclosures made under this Division. Division 6--Guidelines and standards Section 215V Inspector-General may issue guidelines 414. New section 215V would permit the Inspector-General to issue guidelines relating to the management of Basin water resources, which Commonwealth and Basin State agencies must have regard to in performing certain water management obligations. 415. Subsection 215V(1) would provide the Inspector-General may issue guidelines relating to the performance of water management obligations by Commonwealth and Basin State agencies in relation to the management of Basin water resources under certain 69

provisions of the Act; related regulations and other legislative instruments made under the Act; the Basin Plan; and WRPs. 416. Subsection 215V(2) would provide that without limiting the guidelines issued under new subsection 215V(1), the guidelines may relate to reporting compliance activities by Basin State agencies for managing water management obligations, assessing the effectiveness of Basin State regulatory frameworks for managing water management obligations, or any other matter prescribed by the regulations. 417. Subsection 215V(3) would clarify that guidelines issued under new subsection 215V(1) are not legislative instruments for the purposes of subsection 8(1) of the Legislation Act. This provision is declaratory of the law and is to assist the reader. Guidelines are administrative in nature. 418. Subsection 215V(4) would require the Inspector-General to publish any guidelines issued under new subsection 215V(1) on the Inspector-General's website or the Department's website. The intention of this requirement is to ensure that all guidelines are in the public domain. 419. Subsection 215V(5) would provide that an agency of the Commonwealth or Basin State must have regard to the guidelines issued under new subsection 215V(1) in performing its water management obligations. Section 215VA Inspector-General may issue standards relating to measuring water taken from Basin water resources and data related to water trading 420. New section 215VA would permit the Inspector-General to issue standards relating to measuring water taken from Basin water resources and data related to water trading. 421. Subsection 215VA(1) would provide that the Inspector-General may issue, by legislative instrument, standards relating to measuring water taken from Basin water resources in water resource plan areas and the collection, storage, transmission and online publication of Basin water market data and related information by providers of water trade services. Standards relating to meters installed for monitoring water could include standards for the use of the meters. For example, the Inspector-General could issue standards regarding the measuring of water that has been taken from a water resource in the Basin to promote consistency of water metering. 422. Subsection 215VA(1) would also include a note that examples of water trade services would include advising, information, matching, clearing, settlement and registration. 423. Subsection 215VA(2) would provide that an agency of the Commonwealth or Basin State must, in performing its obligations in relation to the management of Basin water resources, have regard to any standards issued under new subsection 215VA(1). 70

Section 215VB Consultation in preparing guidelines or standards 424. New section 215VB would require the Inspector-General to consult and have regard to Basin State submissions when preparing guidelines or standards. 425. Subsection 215VB(1) would provide that the Inspector-General must consult with the Basin States, and have regard to any submissions made by the Basin States that is in connection with the consultation in preparing guidelines under new section 215V or standards under new section 215VA. 426. Subsection 215VB(2) would provide that the Inspector-General may also undertake such other consultation as the Inspector-General considers appropriate in preparing guidelines under new section 215V or standards under new section 215VA. Division 7--Miscellaneous Section 215W Delegation 427. New section 215W would provide the Inspector-General the power to delegate some of the Inspector-General's functions and powers. The purpose of this section is to enable the Inspector-General to delegate appropriate powers and functions to facilitate the effective performance of the Inspector-General's functions and exercise their powers, in support of the objects of the Act. 428. The Inspector-General's powers of delegation would be limited by new proposed subsections 215W(2) and 215W(3) to ensure that certain powers and functions can only be delegated to senior employees within the Department, whilst other functions and powers cannot be delegated and must be exercised personally by the Inspector-General. 429. Subsection 215W(1) would provide that the Inspector-General may delegate all or any of their functions and powers under the Act to an APS employee in the Department, provided that the delegation complies with new proposed subsections 215W(2), (3) and (4). The delegation must be made in writing. 430. Subsections 215W(2), (3) and (4) would limit the functions and powers which the Inspector-General can delegate. 431. Subsection 215W(2) would set out that the Inspector-General is not permitted to delegate certain functions and powers. 432. Subsection 215W(3) would set out that the Inspector-General is permitted to delegate certain functions and powers to an SES employee or an acting SES employee. 433. Subsection 215W(4) would set out that the Inspector-General is permitted to delegate certain functions and powers to an SES employee, or an acting SES employee, or an APS employee who holds, or performs the duties of either an Executive Level 2 or equivalent position in the Department. Delegation to this level would be necessary to ensure the efficiency and effectiveness of government operations. The powers and 71

functions contained within paragraphs 215W(4)(a) to (c) require undertaking without any undue delay or deferral and delegation would provide the necessary flexibility to adapt to these requirements. Subsection 215W(4) would also include a note that APS employee, SES employee and acting SES employee are expressions defined in section 2B of the Acts Interpretation Act. 434. Subsection 215W(5) would require a delegate of the Inspector-General to comply with any written directions of the Inspector-General. This would allow the Inspector-General to institute a formal process to exercise control over delegates' conduct, as required. Section 215X Protection from liability 435. New section 215X would provide protected persons with protection from liability. 436. Subsection 215X(1) would apply to the following persons, who are 'protected persons' for the purposes of the section:  the Inspector-General;  an authorised compliance officer;  a delegate of the Inspector-General;  a person who is authorised to perform a function or exercise a power of, or on behalf of, the Inspector-General;  a person who is assisting the Inspector-General in performing the Inspector- General's functions or exercising the Inspector-General's powers;  a person who is assisting a delegate of the Inspector-General in performing the Inspector-General's functions or exercising the Inspector-General's powers; and  a person who is assisting a person who is authorised to perform a function or exercise a power of, or on behalf of, the Inspector-General, in performing the Inspector-General's functions or exercising the Inspector-General's powers. 437. Subsection 215X(2) would provide that protected persons are not liable to civil proceedings for loss, damage or injury of any kind suffered by another person as a result of the protected person performing their function or exercising their duty. This protection would only apply if the protected person had acted in good faith. The protection would not extend to protection from criminal liability. 438. The purpose of this section is to enable the protected persons to continue to perform their functions and exercise their powers without being obstructed by challenges to the performance of those functions or the exercise of those powers through civil proceedings for loss, damage, or injury. This would prevent actions for damages being brought against the protected person. Protection from civil proceedings is intended to allow those protected persons to make decisions and take action to manage water compliance appropriately, without the fear of being sued. Section 215Y Annual report 439. Section 215Y would provide for the Inspector-General's preparation of an annual report. 72

440. Subsection 215Y(1) would provide that the Inspector-General must prepare an annual report on the activities of the Inspector-General during the financial year. The annual report could include information related to inquiries, audits, the issuing and publication of standards and guidelines, and other reporting related to the Inspector-General's functions, such as compliance activity reporting and implementation by agencies of the Commonwealth and agencies of Basin States of guidelines under new proposed section 215V and standards under new section 215VA. Subsection 215Y(1) would also include a note with reference to new proposed section 239AG that certain material must not be included in an annual report. New proposed section 239AG would require the Inspector-General to give a person or body an opportunity to comment on material proposed to be included in a report that is expressly or impliedly critical of them before the report is finalised. 441. Subsection 215Y(2) would provide that the Inspector-General must give the annual report to the Minister and publish the report either on the Inspector-General's website or the Department's website as soon as practicable after the report is prepared. Subsection 215Y(2) would also include a note that section 34C of the Acts Interpretation Act applies to a report given to the Minister under this subsection. Section 215Z Review of the role of the Inspector-General 442. New section 215Z would provide for the review of the role of the Inspector-General. This section would mirror section 253 of the Act which provides for the review of the operation of Act. 443. Subsection 215Z(1) would provide that 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. Subsection 215Z(2) would provide that the Minister, in consultation with the Basin States, would determine the terms of reference for the review. Subsection 215Z(3) would require that the review be undertaken in consultation with the Basin States. Subsection 215Z(4) would provide that the Minister must cause a written report of the review to be prepared. Subsection 215Z(5) would provide that the Minster 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 receipt of the report by the Minister. Item 68 Part 10 (after the heading) 444. Item 68 would insert a note after the heading in Part 10 that would refer to section 9 to clarify the constitutional basis for the proposed sections below. Item 69 Division 1 of Part 10 445. Item 69 would repeal Division 1 of Part 10. Division 1 established the limits of the legislative powers of Part 10 with respect to the Constitution. This would now be addressed by section 9 as amended above. Item 70 Subsection 218(1) 446. Item 70 would omit the reference to 'recent photograph' and substitute 'photograph that is no more than 5 years old' into subsection 218(1). This item would amend the requirements in subsection 218(1) to closely mirror section 35 of the Regulatory 73

Powers Act. This would remove the ambiguity currently contained in the subsection regarding the age of the photograph contained on an identity card issued by the Authority. This amendment would specify that the photograph on an identity card must not be more than 5 years old. Item 71 Subsection 218(2) 447. Item 71 would insert 'of strict liability' into subsection 218(2), to indicate that the offence established under subsection 218(2) is an offence of strict liability. This would mean that the prosecution would not be required to prove the fault element for the offence. Strict liability is appropriate because the offence is minor in nature and the offence provides appropriate defences which the defendant could rely upon. Item 72 Paragraph 218(2)(c) 448. Item 72 would repeal the current paragraph 218(2)(c) and substitute a new paragraph into subsection 218(2). This would amend the offence to give the person referred to in subsection (2) more time to return the identity card to the Authority. Rather than the person needing to return the identity card to the Authority immediately after ceasing to be an authorised officer, the person would have 14 days to return the identity card. Item 73 After subsection 218(2) 449. Item 73 would insert a new subsection (2A) into section 218. New subsection (2A) would provide that subsection 218(2) does not apply if the identity card was lost or stolen. Subsection 218(2A) would also include a note that a defendant bears the evidential burden in relation to this subsection under subsection 13.3(3) of the Criminal Code. Item 74 Subdivision B of Division 2 of Part 10 (heading) 450. Item 74 would omit the reference to 'other than for compliance purposes' from the heading for Subdivision B of Division 2 of Part 10. This would be a consequential amendment to reflect the transfer of certain compliance functions to the Inspector- General. Items 75 and 76 Subsections 219(1) and 219(2) 451. These items would adjust the numbering of section 219 and repeal subsection 219(2), including the note in subsection 219(2). These amendments would be consequential to reflect that the Authority would no longer have powers to enter land for compliance purposes, specifically that the Authority would no longer have power to monitor compliance or search for evidential material. Authorised officers will retain the power to enter land in a more limited range of circumstances, related to the performance of the Authority's functions. Item 77 Section 222 (note) 452. Item 77 would repeal the current note in section 222 and substitute a new note. The new note would provide that a person who obstructs, hinders, intimidates or resists an authorised officer in the performance of their duties may commit an offence, and may also be liable to a civil penalty under new proposed section 222C. Item 78 After Subdivision B of Division 2 of Part 10 453. Item 78 would insert a new Subdivision C (Other matters) in Division 2 of Part 10 that would comprise three new sections and insert a new Division 3 in Part 10 that would comprise two new sections. 74

Subdivision C--Other matters Section 222A Privilege against self-incrimination and legal professional privilege not abrogated 454. New section 222A would clarify that nothing in Division 2 (Entry onto land etc.) abrogates the privilege against self-incrimination or legal professional privilege. 455. Subsection 222A(1) would provide that nothing in Division 2 of Part 10, 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 incriminate the person or make the person liable to penalty. 456. Subsection 222A(2) would provide that nothing in Division 2 of Part 10, affects the right of a person to refuse to answer a question, give information or produce a document, on the grounds that the answer to a question, or the information, or the document would be privileged from being given or produced by legal professional privilege. Section 222B Occupier entitled to be present during entry 457. Section 222B would provide that the occupier of a premises, or a person representing the occupier, is entitled to be present when an authorised officer enters their premises under Subdivision B. New section 222B closely mirrors protections for occupiers in sections 30 and 62 of the Regulatory Powers Act, relating to entry to premises under a monitoring or investigation warrant. 458. Subsection 222B(1) would provide that where an authorised officer has entered premises under Subdivision B and an occupier, 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. 459. Subsection 222B(2) would provide that the entitlement of the occupier or other person under new subsection 222B(1) ceases if the occupier of the premises, or another person who apparently represents the occupier, impedes the authorised officer. 460. Subsection 222B(3) would provide that this section does not prevent an authorised officer, or officers, from carrying out activities at two or more areas of the premises at the same time. For example, where there are several authorised officers, each authorised officer can conduct search activities on premises simultaneously and would not be restricted in carrying out their activities. However, the occupier or occupiers would be entitled to observe any of the multiple, concurrent search activities taking place at that time. Section 222C Obstructing authorised officers 461. New section 222C would create a civil penalty where a person obstructs, hinders, intimidates or resists an authorised officer in the performance of their functions, duties 75

or the exercise of their powers. The penalty for this civil penalty would be 100 penalty units. 462. Section 222C would also include two notes. Note 1 would set out that it would not generally be necessary to prove the person's state of mind under new proposed section 154C. Note 2 would provide that a person who is liable to a civil penalty under this section may also commit an offence under section 149.1 of the Criminal Code. 463. New proposed section 154C would provide that it is not necessary to prove a person's state of mind in proceedings for a civil penalty. This means that the regulator would only need to prove that the accused person engaged in the physical conduct of the civil penalty provision but would not need to prove that the person did so knowingly, intentionally, recklessly or negligently. It would be justifiable to prohibit this particular form of conduct without the need to prove the person's state of mind to encourage compliance and deter conduct that would impede an authorised officer from carrying out their functions, duties or powers. Without this protection, authorised officers would not be enabled or permitted to exercise their powers or perform their functions. 464. New section 222C is similar to the new proposed section 237A that creates a civil penalty provision where a person obstructs an authorised compliance officer in performing their functions, duties or exercise of powers. Division 3--Information gathering Section 222D Power to require information 465. New section 222D would provide the Authority the power to require a person to give specified compellable information to the Authority and would create a fault-based offence and civil penalty where the person fails to comply with the requirement. This power will assist in the administration of the legislative scheme for the Basin water resources by ensuring that the Authority has the power to obtain information necessary to prepare and implement the Basin Plan and about matters relevant to performance of the Authority's functions. 466. For example, the Authority would have the power to require a person to give information relating to the condition of water-dependent ecosystems associated with the Basin water resources. This is justified to assist the Authority in performing their function to measure, monitor and record the condition of water-dependent ecosystems associated with the Basin water resources under paragraph 172(1)(c) of the Act. 467. Subsection 222D(1) would provide that the section applies to a person if the Authority has reason to believe that the person has in their possession, custody or control information ('compellable information') that relates to the preparation and implementation of the Basin Plan or a matter specified in regulations which is relevant to the performance of the Authority's functions. This would apply whether the compellable information is held electronically or in any other form. 76

468. Subsection 222D(2) would provide that the Authority may require the person to give the compellable information. The Authority must specify, in writing, when the information must be provided by and the form or manner that the information should be provided. The time period specified by the Authority to provide the information would be at least 14 days after the date of issue. This subsection would be consistent with the Commonwealth Guide. 469. Subsection 222D(3) would provide that a person commits a fault-based offence if the person is subject to and fails to comply with a requirement to provide specified compellable information under new subsection 222D(2). The penalty for the fault-based offence would be imprisonment for 6 months or 30 penalty units, or both. This penalty would be consistent with the Commonwealth Guide. 470. For an offence to be established, it would be necessary for the prosecution to prove the existence of each physical element and the relevant fault element beyond a reasonable doubt. There would be a physical element that is a circumstance - the person is requested to provide specified compellable information to the Authority; and a physical element that relates to the person's conduct - the person fails to provide that information. The respective fault elements would be recklessness and intention. The prosecution would need to prove that the person knew, intended, or was aware of a substantial risk that they were required to provide specified compellable information to the Authority and that they intentionally did not provide this information. 471. Subsections 222D(4) and (5) would create civil penalty provisions. 472. Subsection 222D(4) would provide that a person is liable to a civil penalty if the person is subject to and fails to comply with a requirement to provide specified compellable information under new subsection 222D(2). A new note would point to new proposed section 154C, which would provide that it is not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision. The regulator would only need to prove that the accused person did not provide the specified compellable information but would not need to prove that the person did so knowingly, intentionally, recklessly or negligently. 473. Subsection 222D(5) would provide that a person is liable to a civil penalty if the person:  is subject to a requirement under subsection 222D(2);  gives information to the Authority in compliance or purported compliance with that requirement; and  does so knowing that the information is false or misleading in a material particular or omits any matter or thing without which the information is misleading in a material particular. 474. New section 154C would provide that it is not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, unless the civil penalty provision expressly provides otherwise. 77

475. Consequently, no particular state of mind would need to be proved for new paragraphs 222D(5)(a) and (b), but the regulator would need to prove knowledge, as expressly required in new paragraph 222D(5)(c), which requires the person to have provided information knowing that information or an omission of some matter or thing to be false or misleading in a material particular. 476. Subsection 222D(5) would also include a note that a person may commit an offence under section 137.1 or 137.2 of the Criminal Code if the person provides false or misleading information or documents. 477. The penalty for the civil penalty provision for new subsections 222D(4) and (5) would be 100 penalty units. 478. Subsection 222D(6) would provide that new subsection 222D(4) does not apply to the extent that the person has a reasonable excuse. A person does not have a reasonable excuse in this context merely because the information is of a commercial nature, subject to an obligation of confidentially arising from a commercial relationship or commercially sensitive. 479. Subsection 222D(6) would include a note that the defendant bears the evidential burden in relation to this subsection under new section 154E. This would be justifiable as the defendant would have the information, knowledge or evidence necessary to establish that a reasonable excuse existed. Section 222E Prohibitions on disclosure of information do not apply 480. Section 222E would provide that this Division has effect despite any law of the Commonwealth, State or Territory prohibiting disclosure of information. This would allow the Authority to gather information, even where that information is subject to a law prohibiting its disclosure and provide greater certainty to persons required to provide information that they are able to do so. Item 79 Subdivision C of Division 2 of Part 10 (heading) 481. Item 79 would repeal existing heading 'Subdivision C - Powers to enter land etc. for compliance purposes'. This consequential amendment would reflect that these powers will no longer be exercised by authorised officers acting on behalf of the Authority. Item 80 Before section 223 482. Item 80 would insert a new Part 10AA that would comprise one new Division 1 (Entry onto land etc.) and include sections 223 to 239 (which are currently in Part 10), subject to amendments set out in the items below. New Division 1 (Entry onto land etc.) of Part 10AA would comprise one Subdivision A that contains two new sections. 483. The effect of this would be to support the transfer of the Authority's powers under Subdivision C of Division 1 of Part 10 of the Act to the Inspector-General. Item 80 would also include a note that section 9 clarifies the constitutional basis for this Part. 78

Part 10AA--Inspector-General of Water Compliance (special powers) Division 1--Entry onto land etc. Subdivision A--Authorised compliance officers Section 222G Appointment of authorised compliance officers 484. New section 222G would enable the Inspector-General to appoint authorised compliance officers. 485. Subsection 222G(1) would provide that the Inspector-General may, by writing, appoint individuals to be authorised compliance officers for the purposes of exercising the powers of an authorised compliance officer outlined in Division 1 (Entry onto land etc.) of Part 10AA. 486. Subsection 222G(2) would provide that to be eligible for appointment as an authorised compliance officer, an individual must have a high level of expertise in one or more fields relevant to the performance of the duties of an authorised compliance officer, and be an APS employee, an individual whose services are made available to the Inspector- General under new proposed subsection 215S(2), an individual who holds an office or position with a State or State authority, or an individual contracted by the Inspector- General. APS employees appointed to be authorised compliance officers would be subject to requirements of the Public Service Act, including the APS Code of Conduct. For example, a person with an expertise or qualification in conducting government investigations could be appointed under new paragraph 222G(2)(b). 487. Subsection 222G(3) would provide that the Inspector-General may appoint an individual mentioned in subparagraph 222(2)(a)(iii), being an individual who holds an office or position with a State or an authority of a State, to be an authorised compliance officer only if the relevant State or authority of a State agrees to the appointment. 488. The effect of this subsection would be that the Inspector-General must obtain agreement from the relevant State or authority of the State prior to appointing that individual as an authorised compliance officer. 489. Subsection 222G(4) would provide that the Inspector-General must not appoint an individual mentioned in subparagraph 222G(2)(a)(iv), being an individual whose services have been acquired by the Inspector-General under a contract, 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. The effect of this subsection would be that the Inspector-General cannot appoint a contractor to be an authorised compliance officer unless the Inspector-General is satisfied that that individual is fit and proper to be an authorised compliance officer. 490. Subsection 222G(5) would provide that in deciding whether a person is a fit and proper person to be an authorised compliance officer for the purposes of subsection 222G(4), 79

the Inspector-General must have regard to matters prescribed under the regulations and may also have regard to any other matter the Inspector-General considers appropriate. 491. Subsection 222G(6) would provide that a person may make an application to the Administrative Appeals Tribunal (the AAT) for review of a decision made by the Inspector-General that an individual mentioned in subparagraph 222G(2)(a)(iv) is not a fit and proper person, for the purposes of subsection 222G(4). For example, where the Inspector-General is not satisfied that a contracted individual is fit and proper to be an authorised compliance officer, that individual may apply to the AAT for a review of the decision made by the Inspector-General. 492. Subsection 222G(7) would provide that an authorised compliance officer must comply with any written directions of the Inspector-General in exercising powers or performing functions. Section 222H Identity cards 493. New section 222H would set out that an authorised compliance officer is required to have an identity card, and to return the identity card once they have ceased being an authorised compliance officer. 494. This would closely mirror sections 35 (monitoring) and 76 (investigation) of the Regulatory Powers Act by requiring that the Inspector-General issue each authorised compliance officer with an identity card and creating a strict liability offence where a person has been issued an identity card; ceases to be an authorised compliance officer; and fails to return the identity card. These provisions will also mirror the amended identity card requirements for authorised officers appointed by the Authority, in section 218 of the Act. 495. Unlike the Regulatory Powers Act that creates two separate provisions for identity cards depending on whether the authorised person is monitoring or investigating, this new proposed section 222H would apply to authorised compliance officers who have both monitoring and investigation functions. This section would aim to ensure that only authorised compliance officers perform functions and exercise powers under the Act, and that these officers can be readily and easily identified. 496. Subsection 222H(1) would provide that the Inspector-General must issue an identity card to an authorised compliance officer. The appointment of authorised compliance officers is set out in new section 222G. 497. Subsection 222H(2) would provide that the identity card must be in the form approved by the Inspector-General and contain a photograph of the authorised compliance officer that is no more than five years old. 498. Subsection 222H(3) would provide that a person commits a fault-based offence if the person has been issued an identity card under new subsection 222H(1), ceases to be an authorised compliance officer, and does not return the identity card within 14 days after 80

ceasing to be an authorised compliance officer. The penalty for this strict liability offence would be 1 penalty unit. 499. For the strict liability offence to be established, it would be necessary for the prosecution to prove the existence of each physical element, but it would not be necessary to prove the fault element for the offence. Strict liability would be justified to ensure that former officers cannot continue to purport to perform functions and exercise powers under the Act when their appointments cease or are revoked. 500. Subsection 222H(4) would provide that new subsection 222H(3) does not apply where the identity card was lost or destroyed. 501. Subsection 222H(4) would also include a note that a defendant bears the evidential burden in relation to this subsection under subsection 13.3(3) of the Criminal Code. 502. Consistent with the Commonwealth Guide and the Scrutiny of Bills Committee 6th Report, it would be appropriate for the evidential burden of proof to be placed on the defendant in these circumstances. It would be justified to require the defendant to adduce evidence as they would have the knowledge necessary to prove that their identity card had been lost or destroyed, given that the identity card would be within the personal possession of the authorised compliance officer. It would also be justified as it would be significantly more difficult and costly for the prosecution to disprove that the identity card had been lost or destroyed, whereas the defendant could easily and inexpensively establish the matter. 503. For example, if that authorised compliance officer lost their identity card while executing a warrant on a premises, the defendant would have the knowledge that their identity card was misplaced, because the card is an item within their personal possession. In these circumstances, if the authorised compliance officer wished to rely on new subsection 222H(4), they would bear the evidential burden and would need to show a reasonable possibility that the identity card was lost. 504. Subsection 222H(5) would stipulate that 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 Item 81 Subsection 223(1) 505. Item 81 would repeal the current subsection 223(1) and substitute a new subsection. 506. Subsection 223(1) would mirror subsection 18(1) in the Regulatory Powers Act by enabling an authorised compliance officer to enter premises and exercise powers for the purposes of determining whether a designated compliance provision is complied with or determining whether information given in compliance with a designated compliance provision is correct. Designated compliance provision refers to the proposed new definition in subsection 4(1). 81

Items 82, 84, 87, 89, 92, 93, 96, 97, 100, 102, 105, 108, 112, 113, 115, 117, 118, 124, 131, 133 to 135, 142 to 145 Subsection 223(2), Subsection 223(3), Subsection 224(1), Subsection 224(2), Paragraph 224(3)(a), Paragraph 224(3)(b), Subsection 224(3), Subsection 224(4), Subsection 225(1), Subsection 225(3), Subsections 226(1) and (3), Subsections 227(1), (3), (4), (6) and (7), Section 229 (heading), Subsections 229(1) and (2), Subsection 229(3), Section 230 (heading), Subsection 230(1), Subsection 230(4), Paragraph 234(1)(a), Subsection 234(2), Paragraph 234(2)(b), Paragraphs 234(2)(c) and (d), Subsection 237(1), Subsection 237(2), Subsection 237(3) and Subsection 237(3) 507. These items are consequential amendments that would have the effect of substituting 'authorised officer' (wherever occurring in the relevant provisions) with 'authorised compliance officer'. 508. These would reflect the transfer of power from the Authority's authorised officers to the Inspector-General's authorised compliance officers and the creation of new powers for the Inspector-General's authorised compliance officers. Item 83 Paragraph 223(2)(c) 509. Item 83 would repeal the current paragraph 223(2)(c) and substitute a new paragraph. 510. Paragraph 223(2)(c) would mirror paragraph 19(b) in the Regulatory Powers Act by allowing an authorised compliance officer to monitor compliance by examining or observing any activity conducted on the premises under a monitoring warrant. 511. This amendment would remove the current power to require any person in or on the premises to answer questions and produce documents, as this power would be provided for in new proposed section 223B. This amendment would replace this power with the power to examine or observe any activity conducted on the premises. Item 85 Paragraph 223(3)(b) 512. Item 85 would omit the reference to 'a warrant under section 225' and substitute 'a monitoring warrant' in paragraph 223(3)(b). This amendment is consequential to the amendment of subsection 4(1) to insert a new definition 'monitoring warrant'. Item 86 After section 223 513. Item 86 would insert new sections 223A and 223B after section 223. These new sections would set out the evidence and information gathering powers of authorised compliance officers. Section 223A Securing evidence of a contravention 514. New section 223A would set out that an authorised compliance officer can enter premises and secure evidence of a contravention of a designated compliance provision. 515. This would allow an authorised compliance officer to secure things in circumstances similar to those set out in subsection 22(1) of the Regulatory Powers Act. This amendment would provide authorised compliance officers with the ability to secure evidence of a contravention. Without such, the Inspector-General's ability to bring 82

proceedings for a contravention of a civil penalty provision or for the CDPP to bring criminal proceedings against a person, may be jeopardised. 516. Subsection 223A(1) would provide that an authorised compliance officer who has entered premises under section 223 (entering premises to monitor compliance) and found a thing during the exercise of their powers under 223(2), may secure a thing for a period not exceeding 24 hours, provided the authorised compliance officer believes on reasonable grounds:  a designated compliance provision has been contravened with respect to the thing; or  the thing; o affords evidence of a contravention of a designated compliance provision or that information given in relation to a designated compliance provision is not correct; or o has been or is intended to be used to contravene a designated compliance provision; and  it is necessary to secure the thing to prevent it from being concealed, lost, or destroyed before a seizure warrant can be obtained, for example, a water meter, a logbook, or a pump; and  it is necessary to secure the thing without first obtaining a warrant because the circumstances are serious and urgent. 517. The reference to secured in new subsection 223A(1) includes by locking it up, placing a guard or any other means. 518. Subsection 223A(2) would provide that an authorised compliance officer may apply to a magistrate to extend the period beyond 24 hours, provided that the authorised compliance officer believes on reasonable grounds that the thing needs to be secured for longer. 519. Subsection 223A(3) would provide that, before making the application to extend the period beyond 24 hours, the authorised compliance officer must give notice to the occupier of the premises, or their apparent representative, of their intention to apply for an extension. The occupier or other person is entitled to be heard in relation to such an application. This provision would provide a means by which the occupier or other person would be able to challenge an application for extension, if they so choose. 520. Subsection 223A(4) would allow the 24-hour period to be extended more than once. The process by which a magistrate would do this is set out in new proposed section 232A. Section 223B Asking questions and seeking production of documents 521. New section 223B would provide the circumstances under which an authorised compliance officer would be able to ask questions and seek production of documents when investigating compliance with a designated compliance provision. Section 223B would mirror section 24 of the Regulatory Powers Act by creating an offence where a 83

person fails to answer questions where entry to the premises has occurred under a warrant. 522. Subsection 223B(1) would provide that this section applies if an authorised compliance officer enters premises for the purposes of determining whether a designated compliance provision has been or is being complied with; or if information given in support of compliance with a designated compliance provision is correct. 523. Subsection 223B(2) would provide that if the entry is authorised because the authorised compliance officer enters premises with the consent of the occupier the officer may ask the occupier to answer any questions or produce documents relating to the operation of the designated compliance provision or the information. 524. Subsection 223B(3) would provide that if entry is authorised by a monitoring warrant an authorised compliance officer may require any person on the premises to answer any questions or produce documents relating to the operation of the designated compliance provision or the information. 525. Subsection 223B(4) would provide that a person is not subject to the requirement of new subsection 223B(3) if the person does not possess the information or document required and has taken all reasonable steps available to them to obtain the required information or document and has been unable to obtain it. 526. Subsection 223B(5) would provide that a person commits an offence if a person is subject to and fails to comply with a requirement under new subsection 223B(3). The penalty for this offence would be 30 penalty units. For an offence to be established, it would be necessary for the prosecution to prove the existence of each physical element and the relevant fault element beyond a reasonable doubt. 527. There would be a physical element that is a circumstance - the person is subject to a requirement under subsection 223B(3); and a physical element that relates to the person's conduct - the person fails to answer any questions of or produce any documents to the authorised compliance officer related to the operation of the designated compliance provision or the information. 528. The respective fault elements would be recklessness and intention. The prosecution would need to prove that the person knew, intended, or was aware of a substantial risk that they were subject to a requirement under new subsection 223B(3) and that they intentionally did not comply with this. Item 88 Subsection 224(1) (note) 529. Item 88 would repeal the current note in subsection 224(1) and substitute a new note. This note would refer to the new proposed definition of 'evidential material' under subsection 4(1). Item 90 At the end of subsection 224(2) 530. Item 90 would add a new paragraph in subsection 224(2). 84

531. Paragraph 224(2)(d) would mirror subparagraph 49(b)(ii) of the Regulatory Powers Act by providing that if an authorised compliance officer enters premises under an investigation warrant, the authorised compliance officer has the power to seize evidential material that was found on premises. This amendment would provide authorised compliance officers with the ability to seize evidential material relating to a contravention of a designated compliance provision. Without such ability, the Inspector-General's ability to bring proceedings for a contravention of a civil penalty provision or for the CDPP to bring criminal proceedings against a person, may be jeopardised. Items 91 and 98 Paragraphs 224(3)(a) and 224(4)(b) 532. These items would replace 'a warrant under section 226' with 'an investigation warrant' in paragraphs 224(3)(a) and 224(4)(b). This would be a consequential amendment that reflects the new definition of 'investigation warrant' in subsection 4(1). Item 94 After subparagraph 224(3)(b)(iv) 533. Item 94 would insert a new subparagraph in paragraph 224(3)(b). Subsection 224(3) deals with circumstances where an authorised compliance officer, in the course of searching for a particular thing in accordance with an investigation warrant, finds another thing that the authorised compliance officer believes on reasonable grounds to be evidential material. In those circumstances, and if the authorised compliance officer believes on reasonable grounds that it is necessary to, the authorised compliance officer can undertake various tasks, including inspecting, examining and conducting tests on the other thing. New subparagraph 224(3)(b)(v) would enable an authorised compliance officer to also seize the other thing. Item 95 Paragraph 224(3)(b) 534. Item 95 would omit the reference to 'a provision of Part 2 or regulations made for the purposes of Part 2' from paragraph 224(3)(b) and substitute 'a designated compliance provision'. 535. This would be a consequential amendment that reflects the transfer of compliance functions relating to Part 2 from the Authority to the Inspector-General, together with the additional compliance functions which will be exercised by the Inspector-General, contingent on the proposed new definition of 'designated compliance provision' in subsection 4(1). Item 99 After section 224 536. Item 99 would insert a new section 224A after section 224. Section 224A Asking questions and seeking production of documents 537. New section 224A would mirror section 54 of the Regulatory Powers Act by providing the circumstances under which an authorised compliance officer can ask questions and seek production of documents relating to evidential material. 85

538. Subsection 224A(1) would provide that this section applies if an authorised compliance officer enters premises to search for evidential material. 539. Subsection 224A(2) would provide that if the entry is authorised because the occupier consented to the entry, the authorised compliance officer may ask the occupier to answer any questions or produce any documents relating to evidential material. 540. Subsection 224A(3) would provide that if entry is authorised by an investigation warrant the authorised compliance officer may require any person on the premises to answer any questions or produce any documents relating to evidential material of the kind specified in the warrant. 541. Subsection 224A(4) would provide that a person is not subject to the requirement of subsection 224A(3) if the person does not possess the information or document required and has taken all reasonable steps available to them to obtain the required information or documents without success. 542. Subsection 224A(5) would set out that a person commits a fault-based offence if a person fails to comply with a requirement under new subsection 224A(3). The penalty for this offence would be 30 penalty units. This penalty would be consistent with the Commonwealth Guide. For an offence to be established, it would be necessary for the prosecution to prove the existence of each physical element and the relevant fault element beyond a reasonable doubt. 543. There would be a physical element that is a circumstance - the person is subject to a requirement under subsection 224A(3); and a physical element that relates to the person's conduct - the person fails to answer any questions of or produce any documents to the authorised compliance officer related to the evidential material. 544. The respective fault elements would be recklessness and intention. The prosecution would need to prove that the person knew, intended, or was aware of a substantial risk that they were subject to a requirement under new subsection 224A(3) and that they intentionally did not comply with this. Item 101 Subsection 225(2) 545. Item 101 would repeal subsection 225(2) and substitute a new subsection 225(2). 546. This amendment would allow a magistrate to issue a monitoring warrant under subsection 225(1) for monitoring of compliance with a designated compliance provision, or to ascertain whether information given in compliance with a designated compliance provision is correct. 547. This would be a consequential amendment that reflects the transfer of compliance functions relating to Part 2 from the Authority to the Inspector-General, together with the additional compliance functions which will be exercised by the Inspector-General, contingent on the proposed new definition of 'designated compliance provision' in subsection 4(1). 86

Item 103 Subsection 225(4) 548. Item 103 would repeal subsection 225(4) and substitute a new subsection. 549. Subsection 225(4) would closely align with subsection 32(4) of the Regulatory Powers Act by describing the content of a monitoring warrant. This would include a description of the premise to which the warrant relates, the purpose of the warrant, the period the warrant is in force, and that authorised compliance officers are authorised to exercise their powers under this warrant. Items 104 and 107 Sections 226 (heading) and 227 (heading) 550. These items would omit the reference to 'Contravention-related' and substitute 'Investigation' in the headings for sections 226 and 227. These items are consequential amendments that would reflect the adoption of the term 'investigation warrant' rather than 'contravention'. Item 106 Subsection 226(4) 551. Item 106 would repeal subsection 226(4) and substitute a new subsection. 552. Subsection 226(4) would closely align with subsection 70(4) of the Regulatory Powers Act by specifying the content which must be included in an investigation warrant. 553. This would include the offence or civil penalty provisions to which the warrant relates, the premises, the purpose of the warrant, the kinds of evidential material to be searched for and possibly seized, the period the warrant is in force, the names of the authorised compliance officers, and that named officers are authorised to exercise their powers under this warrant. Item 109 Subsection 227(11) 554. Item 109 would repeal subsection 227(11). 555. This would remove the reference to warrants issued under section 226 of the Act as including warrants signed by a magistrate under section 227. This would reflect the new proposed definition of an investigation warrant in subsection 4(1) that explicitly covers warrants issued under sections 226 and 227. Item 110 After section 227 556. Item 110 would insert a new section 227A after section 227. Section 227A Persons assisting authorised compliance officers 557. New section 227A would provide that an authorised compliance officer may be assisted by other persons. 558. Section 227A would closely align with sections 23 (monitoring) and 53 (investigation) of the Regulatory Powers Act by allowing authorised compliance officers to be assisted by other persons. Unlike the Regulatory Powers Act that creates two separate provisions for monitoring warrants and investigation warrant, this new proposed section 227A would apply to both monitoring warrants and investigation warrants. 87

559. Subsection 227A(1) would provide that an authorised compliance officer may be assisted by other people, when exercising powers and carrying out their functions or duties under Subdivision B of Division 1 of Part 10AA, provided that assistance is necessary and reasonable. A person giving such assistance to an authorised compliance officer is a 'person assisting' the authorised compliance officer. For example, a locksmith may be required to assist an authorised compliance officer to gain entry to a building, or a computer expert may be necessary to allow access to a computer file without damaging the computer's records. 560. Subsection 227A(2) would provide the powers, functions and duties of a person assisting an authorised compliance officer. A person assisting may: enter premises; exercise powers and perform functions and duties under Subdivision B in relation to or incidental to evidential material, or for the purposes of assisting the authorised compliance officer to investigate compliance with a designated compliance provision or incidental to this. 561. Paragraph 227A(2)(d) would require the person assisting the authorised compliance officer to act in accordance with any direction the authorised compliance officer gives to them. 562. Subsection 227A(3) would provide that a power exercised by a person assisting as mentioned in new subsection 227A(2) is taken for all purposes to have been exercised by the authorised compliance officer. 563. Subsection 227A(4) would set out that a function or duty performed by the person assisting is taken for all purposes to have been performed by the authorised compliance officer. 564. Subsections 227A(3) and (4) would mean that any action validly taken is taken to have been done by the authorised compliance officer. 565. Subsection 227A(5) would clarify that if a direction is given under new paragraph 227A(2)(d) in writing, the direction is not a legislative instrument for the purposes of subsection 8(1) of the Legislation Act. This provision is declaratory of the law and is to assist the reader. A direction is not legislative in nature. This is to recognise that directions are administrative in nature. Item 111 Section 228 566. Item 111 would repeal the current section 228. Item 114 After subsection 229(2) 567. Item 114 would insert a new subsection 229(2A) into section 229. 568. This subsection would provide that, if a person grants consent to an authorised compliance officer to enter the premises, then the person may limit that consent to a particular time period. Consent would only have effect for that period, unless it is withdrawn by the person before that period ends. 88

569. This would provide a safeguard in allowing a person to grant consent to an authorised compliance officer to enter the premises without that consent allowing unlimited access for an indefinite period of time. Item 116 At the end of section 229 570. Item 116 would add a new subsection (4) to section 229. Subsection 229(4) would mirror paragraph 25(6)(a) of the Regulatory Powers Act by providing that the authorised compliance officer must present their identity card upon entry, or as soon as is reasonably practicable after entering the premises by consent. Items 119 and 132 Subsection 230(1) and Paragraph 234(1)(b) 571. These items would omit the reference to 'a warrant issued under section 225 or 226' and substitute 'a monitoring warrant or an investigation warrant' in subsection 230(1) and paragraph 234(1)(b). This would be a consequential amendment that adopts the new proposed definitions of 'monitoring warrant' and 'investigation warrant' inserted in subsection 4(1). Item 120 Paragraph 230(1)(a) 572. Item 120 would repeal the current paragraph 230(1)(a) and substitute two new paragraphs. New paragraphs 230(1)(a) and 230(1)(ab) would mirror paragraphs 26(a) and (b) in the Regulatory Powers Act by requiring that the authorised compliance officer announce that they are authorised to enter the premises and requiring that the authorised compliance officer shows their identity card to the occupier or person apparently representing the occupier of the premises. Item 121 Subsection 230(2) 573. Item 121 would omit the reference to 'An authorised officer' and substitute 'An authorised compliance officer who is executing an investigation warrant' into subsection 230(2). This is a consequential amendment that would reflect the transfer of compliance functions relating to Part 2 from the Authority to the Inspector-General, together with the additional compliance functions which will be exercised by the Inspector-General, contingent on the proposed new definition of 'designated compliance provision' in subsection 4(1). This would also clarify an authorised compliance officer under this subsection is a reference to an authorised compliance officer who is executing an investigation warrant. This would be consequential to the new proposed definition of 'investigation warrant' inserted under subsection 4(1). Item 122 After subsection 230(2) 574. Item 122 would insert a new subsection 230(2A) into section 230. 575. New subsection 230(2A) would apply where an authorised compliance officer does not announce that they are authorised to enter the premises and give any person at the premises an opportunity to allow entry, because immediate entry is required under subsection 230(2). In these circumstances new subsection 230(2A) would require the authorised compliance officer, as soon as practicable, to show their identity card to the occupier or other person at the premises. 89

Item 123 Subsection 230(3) 576. Item 123 would repeal the current subsection 230(3) and substitute new subsection 230(3) into section 230. New subsection 230(3) would provide that, when an authorised compliance officer is executing a warrant, that the officer must, as soon as practicable, provide a copy of the warrant to the occupier of the premises or their apparent representative, and inform them of their responsibilities and rights under sections 233C and 237. Item 125 Section 231 and 232 577. Item 125 would repeal sections 231 and 232 and substitute three new sections. Section 231 Use of equipment at premises 578. New section 231 would permit authorised compliance officers to operate equipment at premises where the authorised compliance officer had entered the premises under new proposed subsections 223(1) (Entering premises to monitor compliance) or 224(1) (Entering premises to search for evidential material). 579. The new section would closely align with sections 20 (monitoring) and 50 (investigation) of the Regulatory Powers Act by enabling the use of equipment where premises have been entered with consent, as well as when premises have been entered under a warrant. Unlike the Regulatory Powers Act that creates two separate provisions for monitoring warrants and investigation warrants, this new proposed section 231 would apply to both monitoring warrants and investigation warrants. 580. Subsection 231(1) would provide that this section applies if an authorised compliance officer has entered premises under subsection 223(1) or 224(1) and the authorised compliance officer believes, on reasonable grounds, that they can operate equipment at the premises without damaging it. This power is necessary to ensure an authorised compliance officer can obtain access to records for the purposes set out in subsections 223(1) or 224(1). For example, if an authorised compliance officer enters premises and considers that they can operate equipment at the premises such as a computer or a printer in order to access records and documents. 581. Subsection 231(2) would provide that the authorised compliance officer may operate the equipment to:  see if relevant information (if the premises were entered under subsection 223(1)) or evidential material (if the premises were entered under subsection 224(1)) may be accessible by doing so;  put the relevant information or material in documentary form; and/or  copy the relevant information or material to a storage device that is brought to the premises or is on the premises if agreed in writing by the occupier. The officer may then take the storage device from the premises. 582. Subsection 231(3) would provide that 'relevant information' for the purposes of new subsection 231(2) is information relevant in determining compliance with a designated compliance provision or determining whether information provided pursuant to a designated compliance provision is correct. 90

583. Subsections 231(4) and (5) would provide that if an authorised compliance officer entered premises under an investigation warrant, the authorised compliance officer may seize equipment or storage devices if the authorised compliance officer suspects on reasonable grounds that they are or contain evidential material. The authorised compliance officer may only do so if it would not be practicable to put the evidentiary material in documentary form or copy the material, or if possession of the equipment or device could constitute a Commonwealth offence. Section 232 Expert assistance to operate equipment at premises 584. New section 232 would permit authorised compliance officers to secure equipment at premises for the purpose of obtaining expert's assistance to operate the equipment, in certain circumstances. 585. The new proposed section would closely align with sections 21 (monitoring) and 51 (investigation) of the Regulatory Powers Act by enabling the securement of equipment to obtain expert assistance. Unlike the Regulatory Powers Act that creates two separate provisions for monitoring warrants and investigation warrants, this new proposed section 232 would apply to both monitoring warrants and investigation warrants. 586. Subsection 232(1) would provide, in relation to monitoring warrants, that where an authorised compliance officer entered premises under warrant, the authorised compliance officer may do whatever is necessary to secure equipment, including locking it up or guarding it, if the authorised compliance officer believes, on reasonable grounds, that:  relevant information may be accessible by operating equipment;  expert assistance is required to operate the equipment; and  without taking action the relevant information may be destroyed, altered or otherwise interfered with. 587. Subsection 232(1) would also provide, in relation to investigation warrants, that where an authorised compliance officer entered premises under warrant, the authorised compliance officer may do whatever is necessary to secure equipment, including locking it up or guarding it, if the authorised compliance officer believes on reasonable grounds that:  evidential material may be accessible by operating equipment;  expert assistance is required to operate the equipment; and  without taking action the relevant information may be destroyed, altered or otherwise interfered with. 588. A distinction would be made where the authorised compliance officer entered the premises under a monitoring warrant and an investigation warrant. Where the authorised compliance officer entered the premises under a monitoring warrant, the authorised compliance officer would need to believe on reasonable grounds that relevant information within the meaning of new proposed subsection 231(3) may be accessible by operating equipment. Where the authorised compliance officer entered the premises under an investigation warrant, the authorised compliance officer would 91

need to believe on reasonable grounds that evidential material may be accessible by operating equipment. Evidential material would be defined in subsection 4(1). For example, an authorised compliance officer may secure equipment for a 24-hour period to allow an expert sufficient time to arrive at the premises and operate the equipment, provided that the equipment was secured for less than 24 hours. 589. Subsection 232(2) would provide that the authorised compliance officer must give notice to the occupier of the premises of their intention to secure the equipment and that the equipment may be secured for a period of time up to 24 hours. 590. Subsection 232(3) would provide that the equipment may be secured for a period not exceeding 24 hours or until the equipment had been operated by the expert. 591. Subsection 232(4) would permit the authorised compliance officer to apply to a magistrate for an extension of time to secure equipment where the authorised compliance officer believes on reasonable grounds that the requisite expert assistant would not be available within 24 hours. 592. Subsection 232(5) would require that, where the authorised compliance officer intends to apply to a magistrate for an extension of time to secure equipment under new proposed subsection 231(4), the authorised compliance officer must give the occupier notice. The occupier is entitled to be heard in relation to such application. 593. Subsection 232(6) would provide that the 24-hour period for which equipment may be secured for may be extended more than once. Subsection 232(6) would also include a note that would indicate that the process by which a magistrate may extend the period would be under new proposed section 232A. Section 232A Extension of periods in which things secured 594. New section 232A would provide the process by which an authorised compliance officer may be granted an extension of the period during which a thing may be secured. 595. The new proposed section would mirror sections 33 (monitoring) and 74 (investigation) of the Regulatory Powers Act by allowing an authorised compliance officer to apply for an extension of the period during which a thing may be secured. Unlike the Regulatory Powers Act that creates two separate provisions for monitoring warrants and investigation warrants, this new proposed section 232A would apply to both monitoring warrants and investigation warrants. 596. Subsection 232A(1) would provide that this section applies where an authorised compliance officer applies to a magistrate under new proposed subsection 223A(2) or new proposed subsection 232(4) for an extension to the 24-hour period in which things can be secured. 92

597. Subsection 232A(2) would provide that the magistrate may, by order, grant an extension of the period if the magistrate is satisfied by oath or affirmation that information provided to the magistrate demonstrates that:  if the thing is secured under new section 223A that the extension 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  if the thing is equipment that is secured under new proposed section 232 that it is necessary to secure the thing, to ensure that relevant information is not destroyed, altered or otherwise interfered with or to prevent evidential material from being destroyed, altered or otherwise interfered with. 598. Subsection 232A(3) would prohibit the magistrate from granting the extension unless the authorised compliance officer, or some other person, had given 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. For example, the magistrate may require reasons for why the expert assistant was not able to attend the premises within a 24-hour period. 599. Subsection 232A(4) would provide that an order extending the time period must:  describe the thing to which the order relates;  state the period for which the extension is granted;  state that the order is made under new subsection 232A(4); and  state that the authorised compliance officer is authorised to secure the thing for that period. Item 126 Subsection 233(1) 600. Item 126 would repeal subsection 233(1) and substitute a new subsection. 601. New subsection 233(1) would mirror subsection 29(1) (monitoring) and subsection 61(1) (investigation) of the Regulatory Powers Act by providing that a person is entitled to compensation in specific circumstances. 602. Subsection 233(1) would provide that this section would apply if, as a result of being operated as mentioned in Subdivision B of Division 1 of Part 10AA, equipment is damaged, data recorded on the equipment is damaged or programs associated with the use of equipment or data are damaged or corrupted, and the damage or corruption occurs either because insufficient care was exercised in selecting the person operating the equipment, or insufficient care was exercised by the person operating the equipment. Item 127 Subsection 233(2) 603. Item 127 would insert 'to the owner of the equipment, or the user of the data or programs, for the damage or corruption' in subsection 233(2). The new subsection would closely align with subsection 29(2) (monitoring) and subsection 61(2) (investigation) of the Regulatory Powers Act by specifying that the compensation is payable to the owner of the equipment, or to the user of the data or programs, for the damage or corruption. 93

Item 128 After subsection 233(2) 604. Item 128 would insert a new subsection 233(2A) in section 233. 605. The new subsection would closely align with subsection 29(3) (monitoring) and subsection 61(3) (investigation) of the Regulatory Powers Act by permitting the owner or user to initiate proceedings if the owner or user and the Commonwealth fail to agree on an amount for compensation for damage. Unlike the Regulatory Powers Act that creates two separate provisions for monitoring warrants and investigation warrants, this new proposed subsection 233(2A) would apply to both monitoring warrants and investigation warrants. 606. Subsection 233(2A) would provide that, if the owner or user and the Commonwealth do not agree on the amount of compensation for the damage or corruption of the equipment, the owner or user is permitted to institute proceedings for such reasonable amount of compensation as the court determines. Item 129 Subsection 233(3) 607. Item 129 would omit the reference to 'thing' and substitute 'equipment' in subsection 233(3). This would allow consistent referencing to 'equipment' throughout section 233. Item 130 After section 233 608. Item 130 would insert new sections 233A to 233H, after section 233. 609. The new sections would mirror provisions in the Regulatory Powers Act that relate to obligations and incidental powers when investigating. Section 233A Completing execution of warrant after temporary cessation 610. New section 233A would mirror section 59 of the Regulatory Powers Act by enabling an authorised compliance officer to execute an investigation warrant after temporary cessation. 611. This would provide that where an investigation warrant is in force, the execution of the investigation warrant could be temporarily ceased to allow the authorised compliance officer and any person assisting to leave the premises. For example, if the authorised compliance officer had to leave premises due to inclement weather and return to the premises within an hour, when the inclement weather subsided. The execution of the warrant may be ceased for the periods of time set out in new subsection 233A. 612. Subparagraph 233A(2)(b)(ii) would allow the temporary cessation of the execution of the warrant for a period not exceeding 12 hours, in emergency circumstances. 613. Subsections 233A(3) and (4) would set out the circumstances in which this 12-hour period could, on application to a magistrate, be extended. 94

Section 233B Completing execution of warrant stopped by court order 614. New section 233B would mirror section 60 of the Regulatory Powers Act by enabling an authorised compliance officer to complete the execution of a warrant that has been stopped by an order of a court. 615. The purpose of this is to provide that where an investigation warrant has been stopped by an order of a court and that order is later revoked or reversed on appeal, an authorised compliance officer and any persons assisting, is still permitted to execute the warrant, without a new warrant needing to be issued, so long as the warrant is still in force. Section 233C Responsibility to provide facilities and assistance 616. New section 233C would provide that an occupier of premises to which a monitoring warrant or an investigation warrant relates, or another person who apparently represents the occupier must provide facilities and assistance to an authorised compliance officer executing the warrant. A person commits a fault-based offence for failing to provide facilities and assistance. 617. This obligation would recognise that warrant powers are authorised for the purpose of determining whether laws are being complied with and should not be obstructed. An occupier or apparent representative of the occupier who is present when a warrant is executed should be made aware of their responsibilities under this provision. 618. Section 233C would mirror sections 31 (monitoring) and 63 (investigation) of the Regulatory Powers Act. Unlike the Regulatory Powers Act that creates two separate provisions for monitoring warrants and investigation warrants, this new section 233C would apply to both monitoring warrants and investigation warrants. 619. Subsection 233C(1) would impose an obligation on an occupier of premises, or their apparent representative, to provide the authorised compliance officer and any person assisting, the reasonable facilities and assistance, required to effectively carry out the exercise of their powers. 620. Subsection 233C(2) would provide that a person commits a fault-based offence for failing to comply with the obligation to provide reasonable facilities and assistance. The penalty for this fault-based offence would be 30 penalty units. For an offence to be established, it would be necessary for the prosecution to prove the existence of each physical element and the relevant fault element beyond a reasonable doubt. 621. There would be a physical element that is a circumstance - the occupier or their apparent representative, are subject to a monitoring or investigation warrant; and a physical element that relates to the person's conduct - they fail to provide an authorised compliance officer executing a warrant, and any person assisting, with all reasonable facilities and assistance to effectively exercise their powers. 95

622. The respective fault elements would be recklessness and intention. The prosecution would need to prove that the person knew, intended, or was aware of a substantial risk that they were subject to new subsection 233C(1), and that they intentionally failed to comply with it. Section 233D Copies of seized things to be provided 623. New section 233D would mirror section 64 of the Regulatory Powers Act by providing that if an authorised compliance officer seizes a storage device, document, film, computer file or other thing that can be readily copied while executing an investigation warrant, then the occupier of the premises, or their apparent representative, can request a copy of the seized thing or the information. 624. Subsection 233D(1) would provide that this section applies where an investigation warrant is being executed in relation to premises and an authorised compliance officer seizes one or more document, film, computer file or other thing that can be readily copied, or a storage device the information in which can be readily copied. 625. Subsection 233D(2) would provide that the occupier of the premises or another person who represents the occupier and who is present when the warrant is executed, may request a copy of the thing or the information from the authorised compliance officer. 626. Subsection 233D(3) would provide that the authorised compliance officer must comply with the request as soon as practicable after the seizure. This would allow a person to obtain a copy of seized material for their own records or use. 627. Subsection 233D(4) would provide that the authorised compliance officer would not be required to comply with a request made under new subsection 233D(3) if possession of the seized item in question could constitute an offence against a law of the Commonwealth. Section 233E Receipts for seized things 628. New section 233E would mirror section 65 of the Regulatory Powers Act by requiring that an authorised compliance officer must provide a receipt for a thing that is seized under new proposed Subdivision B of Division 1 of Part 10AA. Subsection 233E(2) would provide that a receipt may cover multiple items. This would ensure that a record of seizure is maintained and available to the person from whom material is seized. Section 233F Return of seized things 629. New section 233F would mirror section 66 of the Regulatory Powers Act by providing a process for the return of things that have been seized. 630. Subsection 233F(1) would provide that the Inspector-General must take reasonable steps to return material seized under Subdivision B of Division 1 of Part 10AA. The Inspector-General must return the seized thing within 60 days, or before 60 days if the seized thing is not required for evidence or the reason the thing was seized no longer exists. 96

631. Subsections 233F(2) and (3) would provide exceptions for the obligation to return seized material. 632. Subsection 233F(2) would provide that the requirement under new subsection 233F(1) is subject to any contrary order of the court and does not apply if the thing is forfeited or forfeitable to the Commonwealth or is the subject of an ownership dispute. 633. Subsection 233F(3) would provide that the Inspector-General is not required to take reasonable steps to return a thing:  if it is being used as evidence in unfinished proceedings instituted before the end of the 60 days (and any appeals);  because of an order under new section 233G (Magistrate may permit a thing to be retained); or  because the Commonwealth is otherwise authorised to retain, destroy, dispose of or deal with the seized material. 634. Subsection 233(4) would provide that a thing that is to be returned under this new section must be returned to the person from whom it was seized. Alternatively, the thing must be returned to the owner if the person from whom the thing was seized is not entitled to possess it. Section 233G Magistrate may permit a thing to be retained 635. New section 233G would mirror section 67 of the Regulatory Powers Act by providing for the retention of things that have been seized. 636. Subsection 233G(1) would provide that the Inspector-General may apply to a magistrate to issue an order extending the period a thing seized under Subdivision B of Division 1 of Part 10AA may be retained, if proceedings for which the thing may afford evidence have not commenced before the end of 60 days after the seizure; or if a previous order has been issued under this section, then a period previously specified in an order of a magistrate under new section 233G. 637. Under subsection 233G(2) before making the application, the Inspector-General must make reasonable attempts to identify all persons with an interest in the retention of the thing and notify them of the application if it is practicable to do so. 638. Subsection 233G(3) would provide that a person notified in accordance with subsection 233G(3), is entitled to be heard in relation to the application. 639. The purpose of subsections 233G(2) and (3) is to ensure that persons with an interest in seized material have an opportunity to respond to the application to retain the thing for more than 60 days. 640. Subsection 233G(4) would provide that the magistrate may order that the thing may continue to be retained if the magistrate is satisfied that the continued retention is necessary: 97

 for the purposes of an investigation as to whether a designated compliance provision has been contravened; or  to enable evidence of a contravention to be secured for the purposes of a prosecution or a pecuniary penalty order. Section 233H Disposal of things 641. New section 233H would mirror section 68 of the Regulatory Powers Act by providing for the disposal of things that have been seized. 642. Subsection 233H(1) would provide that the Inspector-General may dispose of a thing seized under Subdivision B of Division 1 of Part 10AA, if the Inspector-General has taken reasonable steps to return the thing to the person and either the person has refused to take possession of the thing or the person to whom the thing should be returned cannot be located. 643. Subsection 233H(2) would provide that the Inspector-General may dispose of the thing in such a manner as considered appropriate by the Inspector-General. For example, paper documents could be disposed of by the Inspector-General by a shredding device. Item 136 Section 235 644. Item 136 would repeal section 235 and insert a new Subdivision C comprising new section 235. 645. New section 235 would mirror section 34 of the Regulatory Powers Act by providing the powers conferred on magistrates by Subdivision B are conferred on the magistrate in a personal capacity and not as a court or a member of a court. There is no obligation on a magistrate to accept the power conferred. 646. If a magistrate exercises such a power they would have the same protection and immunity as if exercising the power as a court or as a member of the court of which he or she is a member. This recognises that issuing a warrant is an executive function and not an exercise of judicial power. Item 137 Section 236 (at the end of the heading) 647. Item 137 would add 'or legal professional privilege' to the heading for section 236. This consequential amendment would reflect the amendments to section 236 made by item 140 Item 138 Section 236 (after the heading) 648. Item 138 would insert the sub-heading 'self-incrimination' after the heading in section 236. This consequential amendment would reflect that section 236 would address two distinct types of privilege that would not be abrogated: self-incrimination and legal professional privilege. 98

Item 139 Section 236 649. Item 139 would insert a subsection number before 'Nothing' in section 236. This consequential amendment would reflect that a new proposed subsection would be inserted below and allow sequential numbering in the section. Item 140 At the end of section 236 650. Item 140 would add a subsection 236(2) to section 236. This amendment would clarify that the right to claim legal professional privilege has not been abrogated under Division 1. 651. Subsection 236(2) would provide that nothing in Division 1 affects the right of a person to refuse to answer a question, give information or produce a document, on the basis that the answer to the question, or the information would be privileged from being given or the document would be privileged from being produced on the ground of legal professional privilege. Item 141 Paragraph 237(1)(a) 652. Item 141 would repeal the current paragraph 237(1)(a) and substitute a new paragraph into subsection 237(1). This consequential amendment would provide that an authorised compliance officers may enter premises under Subdivision B of Division 1 of Part 10AA. Item 146 At the end of Subdivision D of Division 2 of Part 10 653. Item 146 would insert a new section 237A at the end of Subdivision D of Division 2 of Part 10. Section 237A Obstructing authorised compliance officers 654. New section 237A would create a civil penalty where a person obstructs, hinders, intimidates or resists an authorised compliance officer in the performance of the authorised compliance officer's functions or duties or exercise of powers. The penalty for this civil penalty would be 100 penalty units. 655. Section 237A would also include two notes. Note 1 would set out that it would not generally be necessary to prove the person's state of mind under new proposed section 154C. Note 2 would provide that a person who is liable to a civil penalty under this section may also commit an offence under section 149.1 of the Criminal Code. 656. New proposed section 154C would provide that it is not necessary to prove a person's state of mind in proceedings for a civil penalty. This means that the regulator would only need to prove that the accused person obstructed, hindered, intimidated or resisted the authorised compliance officer, but would not need to prove that the person did so knowingly, intentionally, recklessly or negligently. 657. It would be justifiable to prohibit this particular form of conduct without the need to prove the person's state of mind to encourage compliance and deter conduct that would impede an authorised compliance officer from carrying out their functions, duties or 99

powers. Without this protection, authorised compliance officers would not be enabled or permitted to exercise their powers or perform their functions. 658. New section 237A is similar to the new section 222C that creates a civil penalty provision where a person obstructs an authorised officer in performing their functions, duties or exercise of powers. Item 147 Section 238 659. Item 147 would repeal section 238 and substitute a new section 238. Section 238 Power to require information 660. New section 238 would provide the Inspector-General the power to require a person to give compellable information to the Inspector-General. 661. This section would closely align with new section 222D; that section would give the Authority the power to require a person to provide specified compellable information relating to the Authority's functions and the preparation or implementation of the Basin Plan. The new proposed section 238 would enable the Inspector-General to also require a person to give compellable information. 662. Subsection 238(1) would provide that the section applies if the Inspector-General has reason to believe that the person has in their possession, custody or control information (called 'compellable information') that relates to:  the investigation of a designated compliance provision;  an audit being conducted under new section 73L; or  a matter relevant to the Inspector-General's functions, other than those referred to in new paragraphs 215C(1)(a) to (c) that is specified in regulations made for new proposed paragraph 238(1)(c). 663. This would apply whether the compellable information is held electronically or in any other form. 664. Subsection 238(2) would provide that the Inspector-General may require the person to give the compellable information. If so, the Inspector-General must specify, in writing, when the specified compellable information must be provided by and the form or manner that the information should be provided. The time period specified must not be less than 14 days after the requirement is made. New subsection 238(2) would be in line with the Commonwealth Guide. 665. Subsection 238(3) would provide that a person commits a fault-based offence if a person is subject to and fails to comply with a requirement to provide specified compellable information under new subsection 238(2). The penalty for the fault-based offence would be imprisonment for 6 months or 30 penalty units, or both. This penalty would be consistent with the Commonwealth Guide. For an offence to be established, it would be necessary for the prosecution to prove the existence of each physical element and the relevant fault element beyond a reasonable doubt. 100

666. There would be a physical element that is a circumstance - the person is requested to provide specified compellable information to the Authority; and a physical element that relates to the person's conduct - the person fails to provide that information. 667. The respective fault elements would be recklessness and intention. The prosecution would need to prove that the person knew, intended, or was aware of a substantial risk that they were required to provide specified compellable information to the Inspector- General and that they intentionally did not provide this information. 668. Subsections 238(4) and (5) would create civil penalty provisions. 669. Subsection 238(4) would provide that a person is liable to a civil penalty if a person is subject to and fails to comply with a requirement to provide specified compellable information. 670. The physical elements of the civil penalty provision would be the same as the fault- based offence; however, the regulator would only need to establish each of these elements on the balance of probabilities. 671. The regulator would only need to prove that the accused person did not provide the specified compellable information but would not need to prove that the person did so knowingly, intentionally, recklessly or negligently. 672. Subsection 238(4) would also insert a note that would set out that it is generally not necessary to prove the person's state of mind for proceedings involving a contravention of a civil penalty provision. This note would refer to new section 154C. New section 154C would provide that it is not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, unless the civil penalty provision expressly provides otherwise. 673. Subsection 238(5) would provide that a person is liable to a civil penalty if a person is subject to a requirement under new subsection 238(2), gives information to the Inspector-General in compliance or purported compliance with the requirement, knowing that is false or misleading in a material particular, or omits any matter or thing without which the information is misleading in a material particular. 674. Consequently, no particular state of mind would need to be proved for paragraphs 238(5)(a) and (b), but the regulator would need to prove knowledge, as expressly required in new paragraph 238(5)(c), which requires the person to have provided information knowing that information or an omission of some matter or thing to be false or misleading in a material particular. 675. Subsection 238(5) would also include a note that a person may commit an offence under section 137.1 or 137.2 of the Criminal Code if the person provides false or misleading information or documents. 101

676. The penalty for the civil penalty provision for new subsections 238(4) and (5) would both be 100 penalty units. 677. Subsections 238(6) and (7) would create exceptions to the civil penalty provision under new subsection 238(4). 678. Subsection 238(6) would provide that new subsection 238(4) would not apply to the extent that the person had a reasonable excuse. A person would not have a reasonable excuse merely because the information was of a commercial nature, subject to an obligation of confidentially because of a commercial relationship or commercially sensitive. 679. Subsection 238(7) would set out that new subsection 238(4) does not apply in relation to compellable information relating to a matter referred to in new paragraphs 238(1)(a) or (b) if giving the information might incriminate the person or expose the person to a penalty. 680. Subsections 238(6) and (7) would also include a note that the defendant bears the evidential burden in relation to this subsection under new section 154E. Item 148 Before Part 10A 681. Item 148 would insert a new Part 10AB that would comprise eight new sections. These new sections would set out the Inspector-General's powers to conduct inquiries and the arrangements for conducting an inquiry. 682. The power of the Inspector-General to conduct inquiries would relate to the Inspector- General's functions of monitoring and providing independent oversight of Commonwealth and State agencies and their performance under the Act, the Basin Plan and WRPs, as well as the implementation of commitments in relevant intergovernmental agreements. Part 10AB--Inspector-General of Water Compliance (inquiry powers) Section 239AA Inspector-General may conduct inquiry 683. New section 239AA would allow the Inspector-General to conduct an inquiry. 684. Subsection 239AA(1) would provide that the Inspector-General may conduct an inquiry on their own initiative for the purpose of performing their functions under new paragraph 215C(1)(a) to (c). 685. Subsection 239AA(2) would provide that the Minister may direct the Inspector-General to conduct an inquiry into a particular matter related to the Inspector-General's functions in new paragraphs 215C(1)(a) to (c). 686. Subsection 239AA(3) would provide that a direction from the Minister to conduct an inquiry under new subsection 239AA(2) may specify either or both the date by which 102

the inquiry is to be completed and whether a written report should be prepared and given to the Minister. 687. Subsections 239AA(4) and (5) would provide that the Inspector-General must comply with a direction given under new subsection 239AA(2). However, a direction from the Minister must not specify the way in which an inquiry is to be conducted by the Inspector-General. For example, the Minister would be able to direct the Inspector- General to enquire into a certain matter, provided it was a matter related to the Inspector-General's functions in new paragraphs 215C(1)(a) to (c), however the Minister could not influence the findings or recommendations, or prohibit the Inspector-General from looking into a certain compliance matter. 688. Subsection 239AA(6) would clarify that a direction given under new subsection 239AA(2) is not a legislative instrument for the purposes of subsection 8(1) of the Legislation Act. This provision is declaratory of the law and is to assist the reader. A direction is not legislative in nature. This is to recognise that directions are administrative in nature. 689. Subsection 239AA(7) would provide that the Inspector-General must have regard to any applicable guidelines issued under new section 215V and standards issued under new section 215VA. 690. Subsection 239AA(8) would provide that the regulations may make other provision for the process to be followed in conducting an inquiry. 691. Subsection 239AA(8) would also include a note that refers to certain material not being included in a report of an inquiry which is set out in new proposed section 239AE. Section 239AB Terms of reference for inquiry 692. New section 239AB would provide that the Inspector-General may determine an inquiry's terms of reference. 693. Subsection 239AB(1) would provide that the Inspector-General may determine the terms of reference for an inquiry under new section 239AA. The terms of reference would be made in writing. 694. Subsection 239AB(2) would provide that a determination made under new subsection 239AB(1) must specify the legislative powers of the Commonwealth that support the exercise of the Inspector-General's powers to require compellable information and require persons to appear before the Inspector-General to answer questions in relation to the compellable information. The requirement to specify the legislative powers of the Commonwealth that support the exercise would be to clarify that there is a legal basis for the exercise of the Inspector-General's powers. 695. Subsection 239AB(3) would clarify that a determination under new subsection 239AB(1) is not a legislative instrument for the purposes of subsection 8(1) 103

of the Legislation Act. This provision is declaratory of the law and intended to assist the reader. A determination is not legislative in nature. This is to recognise that a determination is administrative in nature. 696. Subsection 239AB(4) would provide that the Inspector-General must publish a determination of the terms of reference for an inquiry on the Inspector-General's website or the Department's website. Section 239AC Inspector-General may require person to give information for the purpose of certain inquiries 697. New section 239AC would enable the Inspector-General to require a person to given information for certain inquiries. 698. Subsection 239AC(1) would provide that this section applies where the Inspector- General has issued written terms of reference for an inquiry, in accordance with new section 239AB. 699. Subsection 239AC(2) would provide that, if the Inspector-General reasonably believes that the person has in their possession, custody or control (whether held electronically or in any other form) information ('compellable information') that may assist the Inspector-General in conducting an inquiry, the Inspector-General may, by written notice, specify that the information must be provided within a certain timeframe and in a particular form or manner. The time period specified by the Inspector-General to provide the information would be at least 14 days after the date of issue. New subsection 239AC(2) would be in line with the Commonwealth Guide. 700. Subsection 239AC(3) would provide that a notice given under new subsection 239AC(2) would also need to set out the effect of new proposed subsections 239AC(4) to (6), and new proposed section 239AH, which deal with the privilege against self- incrimination and professional legal privilege; and section 137.1 of the Criminal Code, which deals with false or misleading information. The purpose of this provision is to ensure that the subject of the notice is aware of their obligations, rights, and the consequences of not complying with the notice. 701. Subsection 239AC(4) would provide that a person commits a fault-based offence if the person is subject to and fails to comply with a requirement to provide specified compellable information under new subsection 238(2). The penalty for the fault-based offence would be imprisonment for 6 months or 30 penalty units, or both. This penalty would be consistent with the Commonwealth Guide. For an offence to be established, it would be necessary for the prosecution to prove the existence of each physical element and the relevant fault element beyond a reasonable doubt. 702. There would be a physical element that is a circumstance - the person is requested to provide specified compellable information to the Inspector-General; and a physical element that relates to the person's conduct - the person fails to provide that information. 104

703. The respective fault elements are recklessness and intention. The prosecution would need to prove that the person knew, intended, or was aware of a substantial risk that they were required to provide specified compellable information to the Inspector- General and that they intentionally did not provide this information. 704. Subsections 239AC(5) and (7) would create civil penalty provisions. 705. Subsection 239AC(5) would provide that a person is liable to a civil penalty if the person is subject to and fails to comply with a requirement to provide specified compellable information under new subsection 239(2). 706. Subsection 239AC(5) would also insert a note that would set out that generally not necessary to prove the person's state of mind for proceedings involving a contravention of a civil penalty provision. This note would refer to new section 154C. 707. The physical elements of the civil penalty provision would be the same as the fault- based offence, however, the regulator would only need to establish each of these elements on the balance of probabilities. 708. The regulator would only need to prove that the accused person did not provide the specified compellable information but would not need to prove that the person did so knowingly, intentionally, recklessly or negligently. 709. Subsection 239AC(6) would provide that new subsection 239AC(5) does not apply if a person had a reasonable excuse. 710. Subsection 239AC(6) would include a note that the defendant bears the evidential burden in relation to this subsection and refer to new section 154E. 711. Subsection 239AC(7) would provide that a person is liable to a civil penalty if the person is subject to a requirement under new subsection 239AC(2), gives information to the Inspector-General in compliance or purported compliance with the requirement and knowingly gives information that is false or misleading in a material particular, or omits any matter or thing without which the information is misleading in a material particular. 712. New section 154C would provide that it is not necessary to prove a person's state of mind in proceedings for a contravention of a civil penalty provision, unless the civil penalty provision expressly provides otherwise. Consequently, no particular state of mind would need to be proved for new paragraphs 239AC(7)(a) and (b), but the regulator would need to prove knowledge, as expressly required in new paragraph 239AC(7)(c), which requires the person to have provided information knowing that information or an omission of some matter or thing to be false or misleading in a material particular. 105

713. Subsection 239AC(7) would also include a note that a person may commit an offence under section 137.1 or 137.2 of the Criminal Code if the person provides false or misleading information or documents. 714. The civil penalty for new subsections 239AC(5) and (7) would be 100 penalty units. Section 239AD Inspector-General may require person to appear to answer questions for the purpose of certain inquiries 715. New section 239AD would permit the Inspector-General to require a person to appear to answer questions for certain inquiries. 716. Subsection 239AD(1) would provide that this section applies where the Inspector- General has issued written terms of reference for an inquiry, in accordance with new section 239AB. 717. Subsection 239AD(2) would provide that, if the Inspector-General reasonably believes that a person had information or knowledge ('compellable information') that may assist the Inspector-General in conducting an inquiry, the Inspector-General may, by written notice, require the person to appear before the Inspector-General to answer questions in relation to the information or knowledge. 718. Subsection 239AD(3) would provide that a notice given under new subsection 239AD(2) must specify:  the time and place the person must appear;  the nature of the compellable information to which the questions relate;  that the person may be accompanied by a lawyer;  whether any other person may accompany that person; and  the effect of new proposed subsections 239AD(5) and (6), new proposed section 239AH, which deals with the privilege against self-incrimination and legal professional privilege, and section 137.1 of the Criminal Code, which deals with false or misleading information. 719. The purpose of this provision is to ensure that the subject of the notice is aware of their obligations, rights, and the consequences of not complying with the notice. 720. Subsection 239AD(5) would provide that a person commits a fault-based offence if the person is subject to and fails to comply with a requirement to appear before the Inspector-General to answer questions in relation to the compellable information under new subsection 239AD(2). The penalty for the fault-based offence would be imprisonment for 6 months or 30 penalty units, or both. This penalty would be consistent with the Commonwealth Guide. For an offence to be established, it would be necessary for the prosecution to prove the existence of each physical element and the relevant fault element beyond a reasonable doubt. 721. There would be a physical element that is a circumstance - the person is requested to provide specified compellable information to the Inspector-General; and a physical 106

element that relates to the person's conduct - the person fails to provide that information. 722. The respective fault elements are recklessness and intention. The prosecution would need to prove that the person knew, intended, or was aware of a substantial risk that they were required to provide specified compellable information to the Inspector- General and that they intentionally did not provide this information. 723. Subsection 239AD(6) would provide that a person is liable to a civil penalty if the person is subject to a notice, and fails to comply with the requirements of the notice to appear before the Inspector-General to answer questions under new subsection 239AD(2). 724. Subsection 239AD(6) would also include a note that would set out that it is generally not necessary to prove the person's state of mind for proceedings involving a contravention of a civil penalty provision. This note would refer to new section 154C. 725. The regulator would only need to prove that the accused person did not provide the specified compellable information but would not need to prove that the person did so knowingly, intentionally, recklessly or negligently. 726. The civil penalty for subsection 239AD(6) would be 100 penalty units. 727. Subsection 239AD(7) would provide that new subsection 239AD(6) does not apply if the person has a reasonable excuse. 728. Subsection 239AD(7) would also insert a note that the person bears the evidential burden in relation to this subsection and refers to new section 154E. 729. Subsection 239AD(8) would provide the Inspector-General must give a person a written record of the answers provided by the person if the person gives answers to questions in compliance with a notice given under new subsection 239AD(2). Section 239AE Reports by Inspector-General 730. New section 239AE would require the Inspector-General to report to the Minister on inquiries conducted under new section 239AA. 731. Subsection 239AE(1) would provide that the Inspector-General must provide a report to the Minister for each inquiry that the Inspector-General has conducted under section 239AA. This obligation would only arise once the inquiry had been completed, and could be fulfilled in writing or otherwise. 732. Subsection 239AE(2) would provide that where the Inspector-General conducted an inquiry under the Minister's direction, the Inspector-General must provide a written report to the Minister, if requested to do so by the Minister. 107

733. Subsection 239AE(3) would provide that the Inspector-General may prepare a single report to cover more than one inquiry conducted under new subsection 239AA. For example, the report may be provided as part of the annual report, unless the inquiry was conducted at the direction of the Minister and the Minister requested a written report on the inquiry. 734. Subsection 239AE(4) would provide that a report of an inquiry may include findings and recommendations in relation to any matter in the report. 735. Subsection 239AE(5) would provide that the Inspector-General may publish the report on the Inspector-General's or the Department's website. Section 239AF Responses to inquiry reports including recommendations that an agency take certain action 736. New section 239AF would require Commonwealth, State and Territory agencies to respond to recommendations made to the agency by the Inspector-General, where the Inspector-General's inquiry report has been published online. 737. Subsection 239AF(1) would provide that this section applies if the Inspector-General has published a report of an inquiry on the Inspector-General's website or the Department's website under new subsection 239AE(5) and the report includes a recommendation that an agency of the Commonwealth or a State or Territory take certain action. 738. Subsection 239AF(2) would provide that where an inquiry report makes recommendations to a Commonwealth, State or Territory agency to take certain action, the agency must give a written response to the Inspector-General within 90 days after the report was published or within any longer agreed period. 739. The written response must set out whether the agency accepts the recommendation (in whole or in part), and if the agency does accept the recommendation, details of any action to give effect to the recommendation. If the agency does not accept the recommendation, in whole or in part, the agency must provide reasons for not accepting that recommendation. 740. Subsection 239AF(3) would provide that the agency to which a recommendation is made is not required to comply with new subsection 239AF(2) if the recommendation relates to a function of the Inspector-General referred to in new paragraph 215C(1)(c), which is to monitor and provide independent oversight of the implementation by agencies of commitments in certain agreements referred to in new subsection 215C(3). 741. Subsection 239AF(4) would provide that the Inspector-General may publish a copy of a response provided pursuant to new subsection 239AF(2) on either the Inspector- General's website or the Department's website. 108

Section 239AG Including criticism in reports 742. New section 239AG would require the Inspector-General to give a person or body an opportunity to comment on material proposed to be included in a report that is expressly or impliedly critical of them, before the report is finalised. 743. Subsection 239AG(1) would provide that if the Inspector-General proposes to include material that is expressly or impliedly critical of a person or body in either a report prepared under new section 239AE or in an annual report prepared under new section 215Y, the Inspector-General must give the person or body an opportunity to comment on the report prior to finalising the report. 744. Subsection 239AG(2) would provide that the person or body may give comments, referred to in new subsection 239AG(1), orally or in writing. 745. Subsection 239AG(3) would provide that a person or body is not liable to civil proceedings or proceedings for contravening a law of the Commonwealth in relation to giving the comments, provided the comments are given in good faith. 746. Subsection 239AG(4) would provide that information or documents included or referred to in comments given under this section do not cease to be the subject of legal professional privilege. Section 239AH Privilege against self-incrimination and legal professional privilege not abrogated 747. New section 239AH would clarify that the right against self-incrimination and to claim legal professional privilege has not been abrogated under Part 10AB. 748. Subsection 239AH(1) would provide that nothing in Part 10AB 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 production of the document, might tend to incriminate the person or make the person liable to a penalty. 749. Subsection 239AH(2) would provide that nothing in Part 10AB would affect 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 document would be privileged from being given or produced on the ground of legal professional privilege. Item 149 At the end of subsection 251(2) 750. Item 149 would add paragraph (k) to subsection 251(2). Section 251 deals with the Minister's powers of delegation under the Act. New paragraph 251(2)(k) would prohibit the Minister from delegating the power to give directions to the Inspector- General under new proposed section 215D. 109

Part 3--Transitional Provisions Overview 751. Part 3 of Schedule 1 to the Bill would provide transitional arrangements to manage the transition of some functions from the Authority to the Inspector-General. These provisions would enable the Inspector-General to take enforcement action concerning contraventions occurring prior to the Bill's commencement. The purpose of these provisions is to ensure that the Inspector-General can deal with contraventions of the Act occurring prior to the Inspector-General's appointment, noting that the newly inserted or amended criminal offences and civil penalty provisions do not apply retrospectively to acts or omissions that occur before commencement of the Water Legislation Amendment (Inspector-General of Water Compliance and Other Measures) Act 2021. Water Act 2007 Item 150 At the end of Part 2 of Schedule 10 752. Item 150 would insert a new Division 2 at the end of Part 2 of Schedule 10. The new Division 2 would comprise 16 new clauses. Division 2--Other amendments Clause 2 Definitions 753. Clause 2 would consist of a new definition of 'commencement day', to mean the day that Schedule 1 to the Water Legislation Amendment (Inspector-General of Water Compliance and Other Measures) Act 2021 commences. Clause 3 Appropriate enforcement agency 754. Clause 3 would provide that the amendment of paragraph 137(a) of the Act made by item 19 applies in relation to contraventions occurring before, on or after the commencement day. Item 19 would establish the Inspector-General as the appropriate enforcement agency for contraventions of designated compliance provisions, a provision of Part 2A or regulations made for the purposes of that Part, or a provision of Part 10AB. 755. This would mean that the Inspector-General would become the appropriate enforcement agency for contraventions of the provisions noted above, that occur before the commencement day. This would enable the Inspector-General to continue to progress any compliance actions commenced by the Authority before the commencement day. Clause 4 Legal proceedings involving the Murray-Darling Basin Authority 756. Subclause 4(1) would provide that the Inspector-General is substituted as a party to proceedings on and after the commencement day, if immediately before the commencement day:  the Authority was a party to the proceedings pending in any court or tribunal; and  the proceedings were brought as permitted by Part 8 of the Act, as in force before the commencement day or related to the exercise of powers under Part 10 of the 110

Act, as in force before the commencement day. This would ensure continuity in the carriage of any proceedings that the Authority is engaged in before the time of commencement. 757. Subclause 4(2) would set out that subclause 4(1) would not apply in relation to pending proceedings relating to the payment of compensation to a person under sections 233 or 254 of this Act that arise from the exercise of powers under Part 10 of this Act, as in force before the commencement day. This would have the effect that any pending proceedings that relate to the payment of compensation for damage under section 233 or for acquisition of property under section 254 that arise from the exercise of powers under Part 10, the Authority would remain as a party to proceedings on or after commencement day. Clause 5 Enforceable undertakings 758. Clause 5 would provide that an enforceable undertaking given under section 163 of the Act that has been accepted by the Authority before the commencement day and has not been withdrawn or cancelled before that day, would continue to have effect as if the undertaking had been accepted by the Inspector-General under section 163 in place of the Authority. This would ensure that enforceable undertakings remain in force while functions transfer from the Authority to the Inspector-General. Clause 6 Enforcement notices 759. Subclause 6(1) would provide that the amendments to section 165 of the Act by items 36 to 42 apply in relation to contraventions, conduct and omissions occurring before, on or after the commencement day. This would mean that the Inspector-General would be able to issue enforcement notices for contraventions, conduct and omissions described in section 165 that occur before, on or after commencement of Schedule 1 of this Bill. This would allow the Inspector-General to take action in issuing enforcement notices for contraventions, conduct and omissions that were not actioned by the Authority before commencement of Schedule 1 of this Bill. 760. Subclause 6(2) would provide that new section 166, as substituted by item 43, applies in relation to notices given on or after the commencement day. New section 166 creates a strict liability offence and retains the original civil penalty provision of previous section 166 for failing to comply with a notice given under subsection 165(2) of this Act. This would mean that the new strict liability offence introduced by new section 166 would only apply to notices issued on or after the commencement day. The civil penalty in new section 166 would also apply on or after the commencement day, though this provision has not been substantively amended. 761. Subclause 6(3) would provide that the amendments to section 167, made by item 44, which substitute the Inspector-General for the Authority, would apply in relation to a section 165 notice before, on or after the commencement day. This would mean that the Inspector-General would be able to vary or revoke section 165 notices given by the Authority before, on or after the commencement day. 111

Clause 7 Public warning notices 762. Clause 7 would provide that new section 167A, which allows the Inspector-General to issue a public warning notice, would only apply in relation to conduct occurring on or after the commencement day. This would reflect that new section 167A is a new provision that does not have an equivalent provision in the current Act. Clause 8 Offences and civil penalty provisions 763. Clause 8 would provide that an offence provision or a civil penalty provision that was inserted into this Act by Schedule 1 or amended by Schedule 1 to the Water Legislation Amendment (Inspector-General of Water Compliance and Other Measures) Act 2021 would apply if the act or omission constituting the contravention or alleged contravention occurs on or after the commencement day. This would make clear that the newly inserted or amended criminal offences and civil penalty provisions do not apply retrospectively to acts or omissions that occurred before commencement of the Water Legislation Amendment (Inspector-General of Water Compliance and Other Measures) Act 2021. Clause 9 Credits to the Murray-Darling Basin Special Account 764. Clause 9 would provide that item 59, which amends paragraph 210(1)(i) of this Act to remove reference to Part 8 (Enforcement), and which reflects that the Authority would no longer be the appropriate enforcement agency under Part 8, applies in connection with the performance of the Authority's functions under this Act or regulations, on or after the commencement day. Clause 10 Disclosure of information by the Authority 765. Clause 10 would provide that new section 215A applies to information obtained before, on or after commencement day. New section 215A would allow the Authority to disclose information obtained in, or in connection with, the performance of its functions or the exercise of its powers, to the Minister or to the Secretary of the Department, or an officer or employee in the Department, for the purpose of advising the Minister. Clause 11 Inquiry may relate to matters occurring before, on or after commencement day 766. Clause 11 would provide that the Inspector-General may conduct an inquiry under new section 239AA into the Commonwealth and Basin States agencies' performance of functions or obligations, exercise of powers or implementation of commitments referred to in new paragraphs 215C(1)(a), (b) or (c) of this Act before, on or after the commencement day. This would ensure that the Inspector-General can inquire into matters occurring prior to the Inspector-General's appointment. Clause 12 Inspector-General's first annual work plan 767. Clause 12 would provide that, for the purposes of new subsection 215E(1) of the Act, the Inspector-General must prepare a work plan for the financial year within 3 months after the commencement day. The commencement day would be included in the 3- month period. This transitional clause would mean that the Inspector-General would be able to operate with a work plan soon after the commencement day without a gap until the next financial year. 112

Clause 13 Inspector-General's compliance powers 768. Subclause 13(1) would provide that 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, acts or omissions occurring before, on or after the commencement day. Subclause 13(2) would provide that subclause 13(1) has effect subject to clause 8 of this Schedule. 769. These amendments would relate to an authorised compliance officer's powers to enter land for designated compliance provisions: determining whether a designated compliance provision has been or is being complied with, determining whether information given in compliance with a designated compliance provision is correct, executing monitoring or investigation warrants, etc. The effect of this clause would be to allow authorised compliance officers to utilise their powers to enter land for compliance purposes immediately, including in investigating contraventions, acts or omissions that occurred before the commencement day. This would mean that authorised compliance officers do not have to wait for another contravention, act or omission to occur after the commencement day, but can instead undertake compliance action immediately. Clause 14 Declaration by the Authority before commencement day relating to restrictions on trading water access right 770. Subclause 14(1) would provide that if a declaration were made by the Authority under subsection 12.20(1) of the Basin Plan before the commencement day and that declaration was in force immediately before that day, the declaration made by the Authority continues in force on and after that day as if the Inspector-General had made the declaration. This would ensure that relevant Basin Plan declarations-related restrictions on water trading remain in force while functions transfer from the Authority to the Inspector-General. 771. Subclause 14(2) would provide that if a Basin State had made a request to the Authority to make a declaration under paragraph 12.20(1)(a) of the Basin Plan before the commencement day and no decision had been made on the request before the commencement day, the request is taken to be a request to the Inspector-General on or after the commencement day. This would ensure that any Basin State requests to make a declaration on water trading remain as taken while functions transfer from the Authority to the Inspector-General. Clause 15 Declaration by the Authority before commencement day permitting application of exchange rate to trade of water access entitlement 772. Subclause 15(1) would provide that if a declaration were made by the Authority under subsection 12.22(3) of the Basin Plan before the commencement day and that declaration was in force immediately before that day, the declaration made by the Authority continues in force on and after that day as if the Inspector-General had made the declaration. This would ensure that Basin Plan declarations related to restrictions on water trading remain in force while functions transfer from the Authority to the Inspector-General. 113

773. Subclause 15(2) would provide that if a Basin State had made a request to the Authority to make a declaration under subsection 12.22(2) of the Basin Plan before the commencement day and no decision had been made on the request before the commencement day, the request is taken to be a request to the Inspector-General on or after the commencement day. This would ensure that the Basin State requests to make a declaration permitting application of exchange rate on water trading remain as taken while functions transfer from the Authority to the Inspector-General. Clause 16 Audits 774. Subclause 16(1) would provide that the Inspector-General may conduct an audit under new section 73L before, on or after the commencement day to assess the extent of compliance with the Basin Plan or WRPs. 775. Subclause 16(2) would provide that, if an audit were being conducted under Division 3 of Part 3 of Chapter 13 of the Basin Plan before the commencement day and the audit had not been completed before commencement day, the Basin Plan audit provisions would continue to apply on and after the commencement day, despite the repeal of Division 3 of Part 3 of Chapter 13 and section 13.20 of the Basin Plan. This would enable repealed sections 13.10 and 13.20 to continue to apply to those audits in progress so that they may be completed appropriately. 776. Subclause 16(3) would further provide that new subsection 73M(2) applies to an audit that has been completed after the commencement day under Division 3 of Part 3 of Chapter 13 of the Basin Plan if a report setting out the findings and recommendations of the audit is published under section 13.20, and that report includes a recommendation that an agency of the Commonwealth, State or Territory take certain action. New subsection 73M(2) requires that an agency to which an audit recommendation is made must give a written response to the Inspector-General within 90 days, setting out whether they accept the recommendation, any action they propose to take, or reasoning for not accepting the recommendation. Clause 17 Regulations may provide for other transitional matters relating to the Inspector- General 777. Clause 17 would provide that regulations may prescribe matters of a transitional nature (including prescribing any savings or application provisions) relating to the establishment of the Inspector-General and the transfer of functions from the Authority to the Inspector-General. This would allow flexibility to deal with any unforeseen transitional issues that may arise in the future in regulations. 114

Schedule 2--Amendment of the Basin Plan 2012 Basin Plan 2012 Item 1 Subsection 6.12(3) 778. Item 1 would amend subsection 6.12(3) by inserting 'and to the Inspector-General' after 'the Authority'. The current section provides that a Basin State may not claim a reasonable excuse for exceeding the sustainable diversion limit unless it has provided a report to the Authority setting out the reasons for the excess. 779. The amendment made by this item would have the effect of requiring a Basin State to provide a report to the Inspector-General, in addition to the current requirement to provide a report to the Authority. This amendment would reflect the above proposed amendments that would require a Basin State to provide information to the Inspector- General about some matters referred to in subsection 71(1) of the Act, and that the Authority must give a copy of reports received under subsection 71(1) of the Act to the Inspector-General. Item 2 Subsection 6.12(5) 780. Item 2 would amend subsection 6.12(5) by inserting 'and the Inspector-General' after 'the Authority'. This would be a consequential change to the above amendment that requires the Basin State to provide a report to the Authority and Inspector-General under subsection 6.12(3). 781. A Basin State that relies on a reasonable excuse claim must provide the Authority with a report setting out the steps that the state would take to reduce the cumulative balance of the water take register to zero or less. The amendment would ensure that the report is also provided to the Inspector-General to ensure that the regulator has the necessary information to assess a claim for a reasonable excuse. Item 3 Section 6.12 (note 2) 782. Item 3 would repeal the current Note 2 in section 6.12 and substitute a new Note 2. This amendment would reflect that the Inspector-General may conduct, or appoint or establish a person or body to conduct, an audit for compliance purposes under the Act, referring to the above sections that would transfer the power to conduct audits from the Authority to the Inspector-General. Item 4 Subsection 6.12C(3) 783. Item 4 would amend subsection 6.12C(3) by inserting 'and to the Inspector-General' after 'the Authority'. The current section provides that a Basin State may not claim that there is a reasonable excuse for an excess of groundwater unless the Basin State has provided a report to the Authority setting out the reasons for the excess. This amendment would require the Basin State to also provide the report to the Inspector- General. Item 5 Subsection 6.12C(5) 784. Item 5 would amend subsection 6.12C(5) by inserting 'and to the Inspector-General' after 'the Authority'. This would be a consequential change to the above amendment 115

that requires the Basin State to provide a report to the Authority and the Inspector- General under subsection 6.12C(3). Item 6 Section 6.12C (note 2) 785. Item 6 would repeal the current Note 2 in section 6.12C and substitute a new Note 2. This amendment would reflect that the Inspector-General may conduct, or appoint or establish a person or body to conduct, an audit for compliance purposes under the Act, referring to the above sections that would transfer the power to conduct audits from the Authority to the Inspector-General. Item 7 Section 12.19 (heading) 786. Item 7 would omit the reference to 'the Authority' from the heading in section 12.19 and substitute 'the Inspector-General'. This amendment would reflect that the Basin States are required to notify the Inspector-General rather than the Authority if a Basin State decides to impose a restriction in section 12.16. Item 8 Subsection 12.19(1) 787. Item 8 would omit the reference to 'the Authority' from subsection 12.19(1) and substitute 'the Inspector-General'. This would be a consequential amendment to item 7 above. Items 9, 10, 11 and 12 Section 12.20 (heading), Subsection 12.20(1), Paragraphs 12.20(1)(a) and (b) and Subsections 12.20(2) and (3) 788. These items are consequential amendments which would omit the reference to 'the Authority' (wherever occurring in section 12.20) and substitute with 'the Inspector- General'. These amendments would reflect that if a Basin State requests the Inspector- General to make a declaration and the Inspector-General is satisfied that the restriction is necessary because of a reason listed in subsection 12.18(1), the Inspector-General must make a written declaration that a restriction referred to in section 12.16 is necessary. Before making a declaration, the Inspector-General would be able to consult with the Basin States, the ACCC and any other interested party. Item 13 Subsection 12.20(3) 789. Item 13 is a consequential amendment which would omit the reference to 'its' from subsection 12.20(3), wherever occurring, and substitute 'the Inspector-General's'. The Inspector-General would be required to publish the declaration and the reasons for being satisfied that the restriction is necessary on the Inspector-General's website. Items 14 and 15 Section 12.22 (heading) and Section 12.22 790. These items would omit the reference to 'Authority' and substitute 'Inspector-General' in the section 12.22 heading and throughout section 12.22 wherever occurring. These amendments would reflect the transfer of the Authority's responsibility to permit exchange rates from the Authority to the Inspector-General. Item 16 Subparagraph 13.01(2)(b)(i) 791. Item 16 is a consequential amendment which would omit the reference to ', conducting audits,' from subparagraph 13.01(2)(b)(i) in the simplified outline for Chapter 13. 116

Item 17 Part 3 of Chapter 13 (heading) 792. Item 17 is a consequential amendment which would omit the reference to ', audits' from the Part 3 of Chapter 13 heading. This amendment would reflect that the Authority would no longer conduct audits to assess the extent of compliance with the Basin Plan. Item 18 Division 3 of Part 3 of Chapter 13 793. Item 18 would repeal Division 3 of Part 3 of Chapter 13. Division 3 enabled the Authority to conduct, or engage or establish others to conduct, audits to assess the extent of compliance with the Basin Plan. This power to conduct audits would be given to the Inspector-General as set out in new section 73L in Schedule 1 to the Bill. Item 19 Paragraph 13.12(1)(e) 794. Item 19 is a consequential amendment which would omit the reference to 'Division 3' and substitute 'Division 3B of Part 2 of the Act' in paragraph 13.12(1)(e). This amendment would reflect that the provisions that relate to audits conducted would be under Division 3B of Part 2 of the Act. Item 20 Section 13.20 795. Item 20 is a consequential amendment which would repeal section 13.20. Section 13.20 requires the Authority to take all reasonable steps to publish finalised audit reports prepared under section 13.10 on its website. 796. This would reflect that the power to conduct audits will be given to the Inspector- General, and that the requirement to publish audit reports would be transferred to the Inspector-General as set out in new subsection 73L(4) of the Bill. The Inspector- General would be required to publish a copy of the report on either the Inspector- General's website or the Department's website. 117

Schedule 3--Other amendments of the Water Act 2007 Water Act 2007 Item 1 Subsection 4(1) (paragraph (f) of the definition of State water management law) 797. Item 1 would insert 'or a part of such law' after 'Basin State' in paragraph (f) of the definition of 'State water management law'. This would mean that a State water management law may also refer to a part of such law that is relevant to the management of Basin water resources and is prescribed by the regulations for the purposes of this definition. This would allow flexibility in providing reference to parts of State laws, such as only select elements of a larger provision. Item 2 After subsection 18C(2) 798. Item 2 would insert a new subsection 18C(2A), which would provide that subsection 14(2) of the Legislation Act does not apply to regulations made for the purposes of subsection 18C(1). Subsection 18C(1) allows the regulations to make amendments to the Murray-Darling Basin Agreement, with the consent of the Murray- Darling Basin Ministerial Council. 799. This item would provide the necessary contrary intention such that the prohibition in subsection 14(2) of the Legislation Act against legislative or notifiable instruments making provision in relation to a matter by reference to any matter contained in an instrument or other writing as in force or existing from time to time does not apply. This means that regulations made for the purposes of subsection 18C(1) may make reference to a matter contained in an instrument or other writing as in force or existing from time to time, if necessary, to do so. Items 3 and 4 Paragraph 193(2)(a) and Subsection 197(3) 800. These items would substitute a reference to repealed section 183 with a reference to rules in force for the purposes of paragraph 29(2)(c) of the PGPA Act. Paragraph 29(2)(c) refers to whole-of-government rules that govern how an official of a Commonwealth entity must manage their disclosure of a material personal interest that relates to the affairs of the entity, including participating at meetings and voting on matters. Item 5 At the end of Schedule 10 801. Item 5 would add a new Part 2 in Schedule 10. This new Part 2 would contain one transitional provision that relates to the application of amendments. 802. The new transitional provision would provide that subsection 18C(2A) of this Act, as inserted by item 2 of Schedule 3 to this Bill applies in relation to regulations made after commencement of that subsection, and regulations made before the commencement of that subsection, as if that subsection had been in force when the regulations were made. 118

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