Page 2500 - Week 09 - Tuesday, 6 August 2013
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Section 77C deals specifically with the criminal offence for a person who does waterway work in a waterway without a licence. It has a high burden of evidential proof and provides a maximum penalty of $11,000 for an individual or five times that for a corporation; imprisonment for one year or both.
Clause 7 provides a new strict liability offence in Section 77C. The new offence at clause 7 provides an enforcement option better suited for environmental incidents where low level environmental harm may have occurred in a waterway, such as the construction of an unauthorised shallow water crossing. The offence has a lower evidential burden of proof and does not carry a criminal record. For clause 7, the infringement notice fine of $1,000 for an individual or five times for a corporation provides a suitable deterrent.
Section 77F provides a general offence for contravening a licence condition. The penalty for this criminal offence is a maximum of $5,500 for an individual or five times that for a corporation.
Clause 8 adds a new offence specific to provision of a bore completion report. Bore completion reports provide valuable information to help authorities manage groundwater as an important natural resource. The strict liability offence at clause 8 for failure to provide such a report provides an enforcement option that is appropriately scaled in preference to the current criminal offence. The new infringement notice penalty is $500 for an individual and higher for a corporation. The infringement notice option is more reasonable and preferable to a criminal offence.
The choice of strict liability offences was carefully considered for both the unauthorised waterway work offence and bore completion report offence. The rationale for their inclusion was centred on the protection of water resources. Strict liability offences, as members know, displace the fault element of an offence. However, strict liability does not oust a range of defences to criminal responsibility under territory law. For example, a person may raise a defence of honest and reasonable mistake of fact.
For clauses 7 and 8 the infringement notice scheme at clause 1.1, schedule 1 is the most appropriate regulatory tool to use. This is because the associated penalty is considered proportional to the consequential environmental impact of non-compliance. Current alternative offences available in the act carry large penalties, have a high burden of proof and are inadequate deterrents. The strict liability offences are the least restrictive means available to achieve the objective of the amendment.
The bill will ensure that the people of Canberra have water resource laws that are in harmony with other state and territory laws. The bill delivers on the government’s commitment to national water reform by introducing a new offence at clause 9 for a person who tampers with a water meter. The act did not have a specific offence for meter tampering. Clause 9 follows contemporary best practice and provides a criminal offence for a person who tampers with a meter and is modelled on similar offence provisions in the New South Wales Water Management Act 2000.
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