Document ID: chunk:federal_register_of_legislation:C2024C00557:section:73b:p2
Version: federal_register_of_legislation:C2024C00557
Segment Type: section
Provision Reference: s 73B (pt 2/3)
Character Range: 238728–241434

units, or both.
 (3) For the purposes of subsection (2):
 (a) recklessness applies to paragraphs (1)(b) and (e); and
 (b) strict liability applies to paragraphs (1)(c) and (d).
 (4) In a prosecution for an offence against subsection (2), it is not necessary to prove the existence of any fault element or state of mind requirement in relation to the potential State contravention.

Alternative verdict
 (5) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 73A(2), if:
 (a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and
 (b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 73A(2); and
 (c) the defendant has been accorded procedural fairness in relation to that finding of guilt.

Civil penalty provision
 (6) A person is liable to a civil penalty if the person contravenes subsection (1).
Note: In proceedings against a person for a contravention of a civil penalty provision, it is generally not necessary to prove the person's state of mind (see section 154C).
Civil penalty:
 (a) for an individual—5,000 penalty units; or
 (b) for a body corporate—50,000 penalty units.

Presumption about taking water by means of works
 (7) For the purposes of subsection (6), if water was taken from a water resource by means of works that were on or beneath land (whether or not the works were attached to the land) at any time when the water was taken, then it must be presumed (in the absence of evidence to the contrary) that the water was taken by:
 (a) unless paragraph (b) applies, the person (the owner) who owned the land at any time when the water was taken; or
 (b) if a person other than the owner occupied the land at all times when the water was taken—that person.

Defences
 (8) In a proceeding against a person (the first person) for an alleged contravention of subsection (1), it is not necessary for the person who instituted the proceeding to prove that no exception, exemption, excuse, qualification or justification provided by the law of the State applies in relation to the potential State contravention.
 (9) However:
 (a) the first person may rely on an exception, exemption, excuse, qualification or justification referred to in subsection (8) if the exception, exemption, excuse, qualification or justification does not involve determining the first person's state of mind; and
 (b) if the first person wishes to rely on such an exception, exemption, excuse, qualification or justification, the first person bears an evidential burden in relation to that