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(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)

• 2. 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)

2. 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.

3. 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.

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:

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.

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 Unlawfully Take, Use or Divert Water (s289(1)(a) of the Water Act 1989) 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.

Other important resources

• Water Theft – Australian Institute of Criminology
• NSW authorities launch Murray Darling Basin prosecutions