Author: Andrew George
Practice area: public order offences
Andrew is a founding Director of Doogue + George, ranked by Doyle's Guide as a Leading Criminal Defence Lawyer in Victoria (2026) and an LIV Accredited Criminal Law Specialist since 1995 with over 30 years of experience across all Victorian courts, tribunals and Royal Commissions. His depth of experience in this area means clients receive accurate, considered advice.
View full profile →Andrew authored this content and last revised it for accuracy on 7 August 2026.
What is the offence of Unlawfully Take, Use or Divert Water?
Unlawfully Take, Use or Divert Water is an offence under s 289(1)(a) of the Water Act 1989 (Vic). It targets unauthorised interference with regulated water resources, including water managed by a Water Authority or supplied for another person’s use, and is commonly treated as water theft.
Key points
- Legal elements: Taking, using or diverting water under an Authority’s control, or water supplied by an Authority for another person’s use.
- Typical conduct: Exceeding water entitlements, installing unauthorised extraction infrastructure, or tampering with a water meter.
- Court jurisdiction: Summary offence dealt with in the Magistrates’ Court.
The maximum penalty for Unlawfully Take, Use or Divert Water is 10 years imprisonment or 1200 penalty units ($250,920.00 as at 2026–27) or both; For a body corporate, 6000 penalty units ($1,254,600.00 as at 2026–27).
Common defences may include factual dispute, beyond reasonable doubt, impossibility, or lack of intent.
Have you been accused of Unlawfully Take, Use or Divert Water?
Interview
The investigator interviewing you will have already gathered the evidence they need to charge you. The interview is not a fact finding mission or a search for the truth which will be assisted by your answers to their questions. The investigator is interviewing you to gather further evidence in the case against you and build their case. You should call us for advice regarding the interview process.
Pleading Not Guilty
Our lawyers are experts in criminal law and many of our lawyers are accredited criminal law specialists. We have in-house counsel who can work with you from the beginning of your matter. Our firm has an open-door policy which means that multiple expert lawyers will assist your lawyer with ideas and advice regarding how to handle your matter.
With complex matters such as this, it is important that a strong team works together to test the evidence. You may have a reasonable defence such that you did not know the matter was false or misleading. Our lawyers can help you fight the case against you.
Pleading Guilty
It is important that if you are pleading guilty to such a charge that all relevant mitigatory material is placed before the Court to ensure you receive the fairest possible sentence.
Which court will the case be heard in?
As a summary offence, any summons for this charge will primarily be handled by the Magistrates’ Court.
What is the legal definition of Unlawfully Take, Use or Divert Water?
Water Act 1989 – Section 289
S. 289 Wrongful Taking, Use, or Diversion of Water
1. Knowing Contravention (Intentional)
A person must not knowingly take, use, or divert an Authority’s water without consent or authorization if that action results in:
A) Serious damage to land, works, or water; or
B) Substantial economic loss to another person.
Penalty:
For an individual: 10 years imprisonment, 1200 penalty units ($250,920.00 as at 2026–27), or both.
For a body corporate: 6000 penalty units ($1,254,600.00 as at 2026–27).
2. Reckless Contravention
A person must not recklessly take, use, or divert an Authority’s water without consent or authorization if that action results in:
A) Serious damage to land, works, or water; or
B) Substantial economic loss to another person.
Penalty:
For an individual: 5 years imprisonment, 600 penalty units ($125,460.00 as at 2026–27), or both.
For a body corporate: 3000 penalty units ($627,300.00 as at 2026–27).
Examples of Unlawfully Take, Use or Divert Water
- A person takes more water than they are entitled to from a Dam that supplies them water.
- A person installs a pipe to extract water that they do not have lawful access to.
- A person tampers with the water meter to relay a false reading.
Elements of the offence
The prosecution must prove:
- That the accused has taken, used or diverted water that is under the control or management of a Water Authority; or
- That the accused has taken, used or diverted water that is supplied by a Water Authority from the use of another person.
Legislation
The legislation for this offence can be found on section 289(1)(a) of the Water Act 1989.
Defences
Defences that are used in response to this charge include factual dispute, concept of beyond reasonable doubt, impossibility or lack of intent.
Questions in cases like this
- Was your water use unlawful?
- How much water are you allowed access to?
- How much water was taken, used or diverted?
Whether you should plead guilty or not guilty to this charge depends on a lot of factors that can best be assessed by a criminal lawyer. Contact one to discuss your case.
Maximum penalty for section 289(1)(a) of the Water Act 1989
The offence of Wrongful Taking, Use or Divert Water (s289(1) of the Water Act 1989) has a maximum penalty of a fine of 1200 penalty units ($250,920.00 as at 2026–27) or 10 years imprisonment for knowing conduct. Reckless offending may result in a fine of 6000 penalty units ($1,254,600.00 as at 2026–27) or 5 years imprisonment as the maximum.
