Unlawfully Take, Use or Divert Water

– section 289(1)(a) of the Water Act 1989
Wrenches Hooked on a PipeThis is the section generally used to prosecute a person who has taken, used or diverted water that is under the control and management of an Authority without their consent, otherwise known as water theft. Water theft covers not just that from natural water courses but the stealing of harnessed or piped water that is supplied by an Authority for the use of another person.

Wrongful taking of water as described above is in breach of section 289(1)(a) of the Water Act 1989.

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.
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?
What are some of the possible defences to Unlawfully Take, Use or Divert Water?

Defences that are used in response to this charge include factual dispute, concept of beyond reasonable doubt, impossibility or lack of intent.

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 and court that deals with this charge

Magistrates' CourtThis offence has a maximum penalty of a fine of 60 penalty units (around $8,400) or 6 months imprisonment for a first offence. Subsequent offending may result in a fine of 120 penalty units (around $16,800) or 12 months imprisonment as the maximum. 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(1)

  1. A person must not, without the consent of the Authority or without any other lawful authority—
    1. take, use or divert water—
      1. that is under the control and management of an Authority; or
      2. that is supplied by an Authority for the use of another person; or

S. 289(1)(b)

    1. interfere with the flow of water in any waterway, aquifer or works under the control and management of an Authority.
       

    Penalty: For a first offence, 60 penalty units or imprisonment for 6 months.
    For a subsequent offence, 120 penalty units or imprisonment for 12 months.

S. 289(2)

  1. A person who is guilty of an offence under subsection (1) that is of a continuing nature is liable, in addition to the penalty set out at the foot of that subsection, to a further penalty of not more than 5 penalty units for each day during which the offence continues (up to a maximum of 20 additional penalty units)—

S. 289(2)(a)

    1. after service of a notice of contravention on the person under section 151 of this Act; or
    2. if no notice of contravention is served, after conviction.
  1. If in a proceeding for an offence under subsection (1) it is proved that water that is under the control and management of an Authority was used on, or taken or diverted to, land owned or occupied by a person, the using, taking or diversion must be presumed, in the absence of evidence to the contrary, to have been done by that person.

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Legislation

The legislation for this offence can be found on section 289(1)(a) of the Water Act 1989.

“Have you been accused of stealing water?”
Elements of the offence

The prosecution must prove:

  1. That the accused has taken, used or diverted water that is under the control or management of a Water Authority; or
  2. That the accused has taken, used or diverted water that is supplied by a Water Authority from the use of another person.
Other important resources