Water theft and offences
Look out for our previous insight articles (as well as articles still to come) on the following topics:
- understanding water regulation;
- the modern minefield – water approvals for mining projects;
- water theft and offences;
- strategic water sharing options;
- project delivery options for large-scale water infrastructure;
- pricing and competition for water;
- native title and cultural heritage, and water; and
- defects and compliance in construction.
Stealing Water is still stealing
While it may be thought that water, like air, is free to all who want it, the starting point for water management in Queensland and New South Wales is that all rights to the use, flow and control of water (e.g. rivers, lakes and aquifers) are vested in the respective States, who may then allow the use of, or interference with, water.
Legislative instruments (in Queensland, primarily the Water Act 2000 (Qld) (Water Act) and the Water Supply (Safety and Reliability) Act 2008 (Qld) (Safety and Reliability Act) and in New South Wales the Water Management Act 2000 (NSW) (WMA) and the Water Act 1912 (NSW) (1912 Act)) regulate who, when and how water can be used.
At its purest level, given the right to control water is vested in the States, taking it without permission is no different to taking goods without permission – simple theft. But practically, stealing water is different to making off with a stolen car in a number of ways:
- firstly, water theft tends to occur in situations in which some entitlement exists, so it can be difficult to determine if water has, or has not been illicitly taken;
- secondly, unlike your car with identifying marks and central registration, there tends not to be unique markings or identifiers for water; and
- thirdly, water theft tends to occur in more regional or remote areas, and tends to occur over time. Water theft can be hard to even identify, and harder still to prove to a criminal standard.
For these reasons, and others, the bespoke legislative instruments create a series of specific offences for breaching water obligations.
In Queensland, the main offences are contained in the Water Act. Principally, section 808 of the Water Act deems it an offence to take, supply or interfere with water unless otherwise authorised. The maximum offence for non-compliance, (which is quintupled for corporate entities), is 1,665 penalty units, currently $222,194.25.
Specific offences also exist for (among others):
- taking water in excess of the volume or rate allowed under a water entitlement;
- using water contrary to a water use plan;
- tampering with a device used to measure water use;
- contravening conditions of a water entitlement or seasonal water assignment notice of water permit;
- contravening a licence condition; and
- unauthorised water bore drilling activities,
These offences are supplemented by offences in the Water Act relating to integrity (giving false or misleading statements or documents and impersonating or obstructing an inspector, as an example) and offences in other acts which may also be triggered (the Planning Act 2016 (Qld) being a common source for applicable offences relating to unauthorised works). Further offences exist in the Water Supply Act 2008 (Qld) (usually in the domestic context).
New South Wales
Both the WMA and the 1912 Act contain offences covering different aspects of water management in a similar manner to Queensland.
The WMA sorts offences into ‘Tier 1’, ‘Tier 2’ and ‘Tier 3’ penalty offences. For a Tier 1 offence, the penalties can be as high as imprisonment for 2 years or a fine of 10,000 penalty units ($1.1 million), or both, and, in the case of a continuing offence, a further penalty of 1,200 penalty units ($132,000) for each day the offence continues. For a corporation, the maximum penalty of 45,500 penalty units equates to over $5 million, with an ongoing daily penalty of $264,000.
Tier 1 offences can include:
- taking water without, or otherwise authorised by, an access licence;
- taking water for which there is no, or insufficient, water allocation;
- taking water when metering equipment is not working; and
- tampering with a water meter.
Enforcing Water Obligations
While the legislative regimes and steep punishments indicate how seriously the States take water theft, prosecuting and proving the offences can be difficult.
To assist with enforcement, the regulatory authorities in both States have significant power to compel the provision of information. Under the WMA, the Minister may issue a notice requiring a person to furnish such information or records that the Minister ‘may require for the purposes of [the WMA]’. An authorised officer can also compel a person to answer questions. Similar provisions exist in the Queensland legislative regime.
In Harris v Mathieson (In His Capacity As An Authorised Officer Under the Water Management Act 2000 NSW) (Harris) the NSW Supreme Court considered the limits of these information gathering powers. Helpfully, his Honour Justice Davies outlined the key principles for the issuing of an information gathering notice as follows:
- the notice must convey with reasonable clarity to the recipient what information he/she is required to furnish or what documents are required to be produced;
- the documents sought must be capable of being properly regarded as related to the potential contravention;
- the notice must disclose the relationship between the information sought and the matter in respect of which the information is sought;
- these requirements (in the paragraphs above) are not to be applied in a precious, over-technical or hypercritical way;
- provided that the necessary relationship exists between the matter and the information and documents required, the notice is not open to objection on the ground that it is burdensome to furnish the information or to produce the documents;
- the power conferred is in aid of a function of investigation, not of proof of an allegation, and it is not possible to define a priori the limits of an investigation which might properly be made. In that way the power should not be narrowly confined;
- the power may properly be exercised to ascertain facts which may merely indicate a further line of inquiry;
- the invalidity of one question or requirement to produce will not lead to the invalidity of other independent questions unless the blue pencil deletion of what is invalid is not practicable or, if it is, would result in a substantially different question;
- objection may be taken to production on the ground of relevance; and
- the possibility, even the certainty, that the notice will cover documents which are not relevant to the investigation is not a basis for setting aside the notice.
Prosecuting an offence
Prosecuting a water offence can also raise a number of difficult evidentiary issues. How does a prosecuting authority show water has been taken? How can you tell how much has been taken? How can you separate a lawful take of water from an unlawful take?
Regulators are increasingly turning to sophisticated tools to regulate water takes in rural areas. Smart and tamper-proof water meters are increasingly being rolled out (and have recently become mandatory in NSW), many weirs have automatic reporting gauges and the use of drones and LiDAR can be used to show changes in water use over time.
Many of these evidentiary issues were recently considered in a water prosecution in the NSW Land and Environment Court – WaterNSW v Harris (No 3). WaterNSW contended that the Harris’ took water in contravention of a condition of their approval, which required that water not be taken when the Darling River at the Bourke Gauge was below a certain flow rate.
In a decision that may be unusual in other criminal areas (but not for environmental prosecutions), the Court accepted an appropriately scientifically devised estimate of the flow rate of the Darling River, rather than concrete evidence of daily flow rate (which is practically extremely difficult to establish). A more fulsome summary of WaterNSW v Harris (No 3) can be found here.
Harris was separately charged by the Natural Resources Access Regulator for allegedly taking water from a water source when metering equipment was not operating or not operating properly. Harris successfully defended these charges on the basis that the prosecutor could not prove beyond reasonable doubt that the required meters were not operating as required. In fact, around a month before the alleged offence, Harris had installed new digital meters to measure the take a water from the pump, with the old MACE meters and analogue engine meters remaining on the pump platform but no longer operating. The meter inspector failed to identify the new digital meters that had been connected to the water pump. Harris therefore argued that where a work (i.e. a pump) has a meter installed that is functioning properly, it is irrelevant if there is other metering equipment also connected to the work that is not working at the time that water is taken.
These cases also shows the benefits of having specialist courts and tribunals, like the NSW Land and Environment Court and the Queensland Planning and Environment Court, equipped with the judicial tools to deal with complicated and somewhat unusual evidence.
In Queensland, if the Chief Executive of an authorised officer believes an offence against the Water Act has occurred or is occurring, but does not want to proceed down the prosecutorial path, they may issue a compliance notice requiring that action be taken to remedy the offences. A compliance notice must state that:
- the Chief Executive or authorised officer believes that the recipient of the notice has contravened or is contravening a provision of the Water Act and identify the relevant provision;
- how the contravention occurred or is occurring;
- the matter relating to the contravention that the Chief Executive or authorised officer believes is reasonably capable of being rectified;
- the reasonable steps the person must take to rectify the matter;
- that the person must take the steps within a stated reasonable period;
- that the person may apply for an internal review of the decision to give the notice within 30 business days after the day the notice is given; and
- how the person may apply for the internal review.
If a person fails to comply with a compliance notice, the penalty for non-compliance is 1.5 times the maximum penalty for the offence to which the notice relates.
It is important that the compliance notice properly sets out the factual basis for forming the belief that an offence has occurred, and clearly states what action needs to be taken to comply with the notice. In the context of a similar style notice issued under the Planning Act 2016 (Qld) (an ‘enforcement notice’), the Planning and Environment Court emphasised that the level of detail and particularity in a notice should be high, because:
- identification of the nature of the alleged offence is the foundation on which the notice provision is based – without the formation of the belief the power to issue the notice is not enlivened;
- notices can be reviewed and appealed, and therefore sufficient particularity must be provided to enable a recipient to know exactly what it is they may want to appeal against; and
- as it is an offence to fail to comply with a notice, the notice should set out the nature of the alleged offence, and the details of the actions required with respect to it, with sufficient certainty and particularity so that a person of ordinary intelligence and experience can ascertain from the document exactly what is required to be done.
Similarly, in NSW the Minister may accept an enforceable undertaking in connection with a matter arising under the WMA and the Minister may apply to the Land and Environment Court for an order if the person breaches the terms.
Stealing water is not like stealing a bike, and the complicated compliance and regulatory regime reflects that. But, the series of high profile recent cases (including in particular WaterNSW v Harris (No 3)) shows that authorities can, and do, take action to ensure laws are complied with, and specialist courts and tribunals are equipped with the expertise to deal with these technically challenging matters.
What can seem like an extremely burdensome regime (particularly in relation to responding to notices to produce information), is reflective of the challenging nature of prosecuting water offences. Our next article in the understanding water regulation series will help ensure that you don’t end up on the wrong end of a water prosecution.
 Water Management Act 2000 (NSW) s 338A.
  NSWSC 1064.
 at .
  NSWLEC 18.
 Natural Resources Access Regulator v Harris; Natural Resources Access Regulator v Timmins  NSWLEC 104
 Benfer v Sunshine Coast Regional Council  QPEC 6.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.