The Water Bill Exposure Draft (Exposure Draft) proposes major reforms to the water sector in Victoria in a range of areas, including compliance and enforcement. The main proposed changes to the current regime in the Water Act 1989 (Water Act) are:
- the introduction of an enforcement toolbox, which includes a range of alternatives to court action
- the streamlining of offences
- a moderate increase in penalties
- the introduction of new provisions for evidence collection
- minor changes to powers of Authorised Water Offices to enter land to investigate suspected breaches
- additions to recent reforms to powers for entering land, by requiring a water authority to acquire an interest in private land (such as an easement, an access agreement registered on title or the landowner's agreement in writing) in order to enter private land to install or construct works excluding sewerage works and property connection works.
This article summarises some of these changes to the compliance and enforcement regime.
One of the major changes relating to compliance and enforcement is the proposed introduction of the enforcement toolbox.
The toolbox arms water authorities with a wider range of enforcement tools to address offences than is currently available. It adopts a strategy of tiered enforcement – enforcement tools are arranged in a hierarchy or pyramid, with more cooperative strategies at the base, and progressively more punitive approaches moving up the pyramid, to be used if, and only if, the cooperative strategies fail. Not only does this give the water authorities more flexibility, it allows 'minor' offences that may not have been addressed under the current regime, as they were too minor or trivial to warrant prosecution, to be matched with an appropriate penalty.
This approach is referred to as 'responsive regulation' #1 an approach aimed to stimulate the maximum level of compliance. The rationale is that regulatory policy should not be either solely deterrent or solely cooperative, but a combination of both. It is a strategy that is commonly used in legislative enforcement regimes.
The proposed enforcement toolbox includes a range of measures, from education and community awareness initiatives such as advising individuals of their obligations under the Act, to statutory notices that impose an obligation on an individual to remedy specific conduct, to prosecution in court.
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Figure 5, Compliance and enforcement pyramid, Water Bill Exposure Draft: an explanatory guide, pg 35.#2
The proposed enforcement tools include:
- Penalty infringement notices (PINs) – notices that impose administrative fines. PINs are a quick and efficient alternative to prosecution in court, which can often be time consuming and costly. While PINs are available under the current regime, the Exposure Draft proposes to broaden the offences for which they can be used (the offences and the infringement penalty for each offence will be prescribed in regulations)
- Remedial action notices – notices that compel a person to 'make good', if their actions pose a risk to such things as the availability of water, neighbouring properties, the environment or public health and safety. Remedial action notices are a proposed new enforcement tool that replace the notice of contravention that exists under the current regime. The notices will apply to a small number of prescribed offences (to be listed in a regulation) and while they will only be issued where it is believed a person has committed an offence, unlike the current notices of contravention, they will not clearly lead to additional penalties for that offence
- Required work notices – notices that require an owner of a serviced property or land to repair or carry out maintenance, or carry out any other work that is necessary for a water corporation to provide a service to the property or land. The notices are a revised version of the notices to repair, available under the Water Act.
Increases in penalties
The Exposure Draft proposes some increases in the maximum penalties for offences successfully prosecuted in court. This is intended to reflect the severity of the conduct that constitutes the offence and provide greater deterrence.#3
For example, a number of offences under the current Water Act are subject to a maximum fine of 20 or 60 penalty units.#4 The Exposure Draft proposes moderate increases, such as from 20 to 240 penalty units for the offence of interfering with works and any state observation bore#5 and from 60 to 240 penalty units for the offence of taking water without authorisation.#6
Further, in accordance with sentencing principles, and as is commonly included in legislative enforcement regimes, the Exposure Draft proposes higher maximum penalties for corporate or business entities. However, within this context, the Exposure Draft also proposes that, when determining a penalty and considering the financial circumstances of an offender that is a small farm body corporate (defined to mean a body corporate that fulfils certain size, asset and income criteria), a court must have regard to the fact that its capacity to pay a fine is more limited than other body corporates.#7
While there have been increases to penalties, penalties for repeat offences and aggravated offences penalties currently included in the Water Act have been removed.
There is also a proposed change in relation to the ability of a corporate director, to limit the circumstances in which a company can be found liable for an offence that the company has committed in accordance with the principles for directors' liability agreed to by the Council of Australian Governments (COAG).#8
The proposed changes include streamlining the offence provisions to clearly focus on the activities that need to be regulated. Changes have been made in a number of ways, including:
- amending the wording of offence provisions to clarify the offence: for example, changes have been made to the provision relating to liability for flows of water, including by specifying the flows of water for which an owner of land may be held liable – they include flows from tanks, sewers, drains, pipes, fittings or appliances of any kind on the land (currently section 16 of the Water Act 1989, clause 671 of the Exposure Draft)
- combining multiple offences into the one offence: for example, the prohibition against discharging or draining water has been made much simpler by combining the current three provisions under the Water Act to one, general discharge offence that covers the requirement to obtain consent for discharging or draining any matter into the works of a water corporation (clause 464 of the Exposure Draft)
- creating new offences, including a prohibition against the discharge of trade waste in breach of a consent, and the creation of an offence for failing to comply with the conditions placed on an approval to dispose of a matter down a bore (clauses 465 and 566 of the Exposure Draft).
The period for public consultation about the Exposure Draft has ended. It is intended that the new Water Bill be introduced to Parliament in 2014, with a view to the new Act commencing on 1 January 2016.