Commonwealth: Water Legislation Amendment (Inspector-General of Water Compliance and Other Measures) Act 2021 (Cth)

Water Legislation Amendment (Inspector‑General of Water Compliance and Other Measures) Act 2021 No. 74, 2021 An Act to amend the Water Act 2007 and the Basin Plan 2012, and for related purposes Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Amendment of the Water Act 2007 Part 1—Management of Basin water resources Water Act 2007 Part 2—Compliance and enforcement Water Act 2007 Part 3—Transitional provisions Water Act 2007 Schedule 2—Amendment of the Basin Plan 2012 Basin Plan 2012 Schedule 3—Other amendments of the Water Act 2007 Water Act 2007 Water Legislation Amendment (Inspector-General of Water Compliance and Other Measures) Act 2021 No. 74, 2021 An Act to amend the Water Act 2007 and the Basin Plan 2012, and for related purposes [Assented to 30 June 2021] The Parliament of Australia enacts: 1 Short title This Act is the Water Legislation Amendment (Inspector‑General of Water Compliance and Other Measures) Act 2021. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. The whole of this Act A single day to be fixed by Proclamation. 5 August 2021 A Proclamation must not specify a day earlier than the day after the day the Minister is satisfied that the amendments of the referred provisions to be made by this Act have been approved by all referring States. The Minister must announce by notifiable instrument the day the Minister is so satisfied. (F2021N00176) However, if the provisions do not commence within the period of 6 months beginning on the day after the day the Minister is satisfied that the amendments of the referred provisions to be made by this Act have been approved by all referring States, they commence on the day after the end of that period. If the provisions commence in this way, the Minister must announce by notifiable instrument the day the provisions commenced. Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. (3) In this section, referred provisions and referring State have the meanings given by section 18B of the Water Act 2007. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Note: The provisions of the Basin Plan 2012 amended or inserted by this Act, and any other provisions of that instrument, may be amended or repealed by a legislative instrument prepared and adopted under Division 1 of Part 2 of the Water Act 2007 (see subsection 13(5) of the Legislation Act 2003). Schedule 1—Amendment of the Water Act 2007 Part 1—Management of Basin water resources Water Act 2007 1 Section 9 (after note 2) Insert: Note 3: See also sections 73C and 73D, which clarify the constitutional basis for sections 73A and 73B, and sections 73J and 73K, which clarify the constitutional basis for sections 73F to 73H. 2 After Division 3 of Part 2 Insert: Division 3A—Offences and civil penalty provisions Subdivision A—Contraventions of laws relating to taking water from a water resource 73A Taking water when not permitted under State law—basic contravention (1) A person contravenes this subsection if: (a) the person engages in conduct; and (b) the conduct results in water being taken from a water resource; and (c) a water resource plan for a water resource plan area applies to the water resource; and (d) the taking of the water would constitute a contravention of the law of a State if any fault element or state of mind requirement were to be satisfied in relation to the taking of the water (the potential State contravention). Fault‑based offence (2) A person commits an offence if the person contravenes subsection (1). Note: See section 170A in relation to the physical elements of the offence. Penalty: Imprisonment for 3 years or 180 penalty units, or both. (3) For the purposes of subsection (2): (a) recklessness applies to paragraph (1)(b); 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. Civil penalty provision (5) 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—1,000 penalty units; or (b) for a body corporate—10,000 penalty units. Presumption about taking water by means of works (6) For the purposes of subsection (5), 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 (7) 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. (8) However: (a) the first person may rely on an exception, exemption, excuse, qualification or justification referred to in subsection (7) 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 matter. Note: For evidential burden, see subsection 4(1) of this Act. (9) To avoid doubt, nothing in subsection (7) or (8) is intended to exclude the operation of Part 2.3 of the Criminal Code or section 154D of this Act (mistake of fact in relation to contraventions of civil penalty provisions) in relation to an alleged contravention of subsection (1). 73B Taking water when not permitted under State law—aggravated contravention (1) A person contravenes this subsection if: (a) the person engages in conduct; and (b) the conduct results in water being taken from a water resource; and (c) a water resource plan for a water resource plan area applies to the water resource; and (d) the taking of the water would constitute a contravention of the law of a State if any fault element or state of mind requirement were to be satisfied in relation to the taking of the water (the potential State contravention); and (e) any of the following circumstances exists: (i) tier 3 water sharing arrangements are in place when the water is taken; (ii) the water is taken from a place that is downstream from where held environmental water is, or was, being delivered during a period of environmental watering, and the taking of some or all of the water occurred within the period of 60 days starting on the first day the held environmental water started to be delivered; (iii) the circumstance in paragraph 6.12(1)(a) of the Basin Plan exists in relation to the surface water SDL resource unit from which the water is taken, and at the time the water is taken the State is taking, or is proposing to take, steps of the kind referred to in subsection 6.12(5) of the Basin Plan in relation to that circumstance; (iv) the circumstance in paragraph 6.12C(1)(a) of the Basin Plan exists in relation to the groundwater SDL resource unit from which the water is taken, and at the time the water is taken the State is taking, or is proposing to take, steps of the kind referred to in subsection 6.12C(5) of the Basin Plan in relation to that circumstance; (v) the taking of the water significantly contributes to, or is likely to significantly contribute to, harm to the environment in a State other than the State where the water was taken; (vi) the taking of the water significantly contributes to, or is likely to significantly contribute to, serious harm to the environment; (vii) the water is taken from a wetland (including declared Ramsar wetlands) that is protected under a law of the Commonwealth or a law of a State. Fault‑based offence (2) A person commits an offence if the person contravenes subsection (1). Note: See section 170A in relation to the physical elements of the offence. Penalty: Imprisonment for 5 years or 300 penalty 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 matter. Note: For evidential burden, see subsection 4(1) of this Act. (10) To avoid doubt, nothing in subsection (8) or (9) is intended to exclude the operation of Part 2.3 of the Criminal Code or section 154D of this Act (mistake of fact in relation to contraventions of civil penalty provisions) in relation to an alleged contravention of subsection (1). Definitions (11) In this section: environment includes environmental assets and environmental outcomes. groundwater SDL resource unit has the same meaning as in the Basin Plan. harm includes direct harm, indirect harm, and the cumulative effect of any harm. surface water SDL resource unit has the same meaning as in the Basin Plan. tier 3 water sharing arrangements means the tier 3 water sharing arrangements provided for in the Agreement. 73C Constitutional basis of sections 73A and 73B Sections 73A and 73B rely on the Commonwealth's legislative powers under paragraph 51(xxix) (external affairs) of the Constitution as it relates to giving effect to Australia's obligations under relevant international agreements, in particular: (a) paragraph 1 of Article 3 and paragraph 1 of Article 4 of the Ramsar Convention; and (b) subparagraphs (a), (c) to (e) and (k) of Article 8 and subparagraph (a) of Article 10 of the Biodiversity Convention. 73D Additional operation of sections 73A and 73B (1) In addition to section 73C, sections 73A and 73B have effect as provided by this section. Corporations (2) Each of sections 73A and 73B also has the effect it would have if the relevant contravening conduct were expressly confined to: (a) conduct by a constitutional corporation; or (b) conduct by another person that affects the activities of a constitutional corporation. Trade and commerce (3) Each of sections 73A and 73B also has the effect it would have if the relevant contravening conduct were expressly confined to conduct that takes place in the course of trade and commerce: (a) with other countries; or (b) among the States; or (c) between a State and a Territory. Territories (4) Each of sections 73A and 73B also has the effect it would have if the relevant contravening conduct were expressly confined to conduct that takes place in a Territory. Agencies of the Commonwealth (5) Each of sections 73A and 73B also has the effect it would have if the relevant contravening conduct were expressly confined to conduct by an agency of the Commonwealth. Definitions (6) In this section: conduct includes an act or omission. relevant contravening conduct, in relation to section 73A or 73B, means conduct that constitutes, or would constitute, a contravention of a provision of that section. 73E Restrictions on taking action under Part 8 or 10AA in relation to alleged contravention of section 73A or 73B (1) The Inspector‑General or an authorised compliance officer must not take action under Part 8 or 10AA in relation to an alleged contravention of section 73A or 73B unless the Inspector‑General has given the appropriate agency of the State where the contravention is alleged to have occurred a written notice stating that: (a) the Inspector‑General intends to take action under Part 8 or 10AA in relation to the alleged contravention; and (b) the appropriate agency of the State may, within 28 days after receiving the notice, notify the Inspector‑General, in writing, that the appropriate agency of the State is investigating or taking other enforcement action in relation to the conduct constituting the alleged contravention. (2) If: (a) under subsection (1), the Inspector‑General gives the appropriate agency of a State a written notice in relation to an alleged contravention; and (b) within 28 days after receiving the notice, the appropriate agency of the State notifies the Inspector‑General, in writing, under paragraph (1)(b); the Inspector‑General or an authorised compliance officer must not, within 3 months after the Inspector‑General receives the notification, take action under Part 8 or 10AA in relation to the alleged contravention. (3) Despite subsection (2), if, within 3 months after the Inspector‑General receives a notification from the appropriate agency of a State under paragraph (1)(b), the appropriate agency of the State: (a) withdraws the notification by written notice to the Inspector‑General; or (b) requests the Inspector‑General, in writing, to take action under Part 8 or 10AA in relation to the relevant alleged contravention; the Inspector‑General or an authorised compliance officer may, at any time after receiving the withdrawal notice or request, take action under Part 8 or 10AA in relation to the relevant alleged contravention. (4) A failure to comply with subsection (1) or (2) in relation to an alleged contravention does not affect the validity of any action taken by the Inspector‑General or an authorised compliance officer under this Act in relation to the alleged contravention. (5) A notice or notification under this section is not a legislative instrument. (6) To avoid doubt, subsection (2) does not prevent the Inspector‑General from exercising powers under this Act, other than under Part 8 or 10AA, during the 3 month period to which that subsection applies in relation to conduct constituting an alleged contravention of section 73A or 73B. Note: For example, the Inspector‑General may disclose information to a State or other body under Division 5 of Part 9A. Subdivision B—Contraventions of the Basin Plan 73F Failing to give reasons for restricting trade of water delivery right as required by the Basin Plan (1) A person contravenes this subsection if: (a) the person is required to give a notification under subsection 12.30(1) of the Basin Plan; and (b) the person fails to give the notification in accordance with subsection 12.30(2) of the Basin Plan. (2) Subsection (1) does not apply if the person has a reasonable excuse. Note: The person bears an evidential burden in relation to the matter in this subsection (see section 154E). Civil penalty provision (3) A person is liable to a civil penalty if the person contravenes subsection (1). Note 1: 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). Note 2: This section applies in relation to conduct described in section 73J. Civil penalty: 60 penalty units. 73G Failing to report price for trade of water access right as required by the Basin Plan (1) A person contravenes this subsection if: (a) the person is required to give a notification under subsection 12.48(1) or (2) of the Basin Plan; and (b) the person fails to give the notification in accordance with subsection 12.48(3) of the Basin Plan. (2) Subsection (1) does not apply if the person has a reasonable excuse. Note: The person bears an evidential burden in relation to the matter in this subsection (see section 154E). Civil penalty provision (3) A person is liable to a civil penalty if the person contravenes subsection (1). Note 1: 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). Note 2: This section applies in relation to conduct described in section 73J. Civil penalty: 60 penalty units. 73H Trading water access right before water announcement made or generally available in contravention of the Basin Plan (1) A person contravenes this subsection if the person contravenes subsection 12.51(2) of the Basin Plan. Civil penalty provision (2) A person is liable to a civil penalty if the person contravenes subsection (1). Note 1: 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). Note 2: A person who wishes to rely on the exception in section 12.52 of the Basin Plan bears an evidential burden in relation to the matter in that section (see section 154E of this Act). Note 3: This section applies in relation to conduct described in section 73J or 73K. Civil penalty: (a) for an individual—1,000 penalty units; or (b) for a body corporate—10,000 penalty units. 73J Application of sections 73F to 73H (1) Sections 73F to 73H apply in relation to relevant contravening conduct of any of the following kinds: (a) relevant contravening conduct by a constitutional corporation; (b) relevant contravening conduct by another person that affects the activities of a constitutional corporation; (c) relevant contravening conduct that takes place in the course of trade and commerce: (i) among the States; or (ii) between a State and a Territory; (d) relevant contravening conduct that: (i) takes place in a Territory; or (ii) relates to tradeable water rights in relation to a water resource in a Territory; (e) relevant contravening conduct by an agency of the Commonwealth. Definitions (2) In this section: conduct includes an act or omission. relevant contravening conduct, in relation to section 73F, 73G or 73H, means conduct that constitutes, or would constitute, a contravention of a provision of that section. 73K Additional application of section 73H Postal, telegraphic, telephonic or other like services (1) In addition to section 73J, section 73H also applies in relation to relevant contravening conduct that takes place using postal, telegraphic, telephonic or other like services (within the meaning of paragraph 51(v) of the Constitution). Definitions (2) In this section: conduct includes an act or omission. relevant contravening conduct means conduct that constitutes, or would constitute, a contravention of section 73H. Part 2—Compliance and enforcement Water Act 2007 3 Subsection 4(1) Insert: authorised compliance officer means an individual whose appointment by the Inspector‑General under section 222G is in force. designated compliance provision means any of the following provisions: (a) a provision of Part 2 or regulations made for the purposes of that Part; (b) section 166; (c) section 222C; (d) section 222D; (e) section 237A; (f) section 238. enforcement body has the meaning given by the Privacy Act 1988. enforcement related activity has the meaning given by the Privacy Act 1988. evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. 4 Subsection 4(1) (definition of evidential material) Repeal the definition, substitute: evidential material means any of the following: (a) a thing with respect to which a designated compliance provision has been contravened or is suspected, on reasonable grounds, to have been contravened; (b) a thing that there are reasonable grounds for suspecting will afford evidence as to the contravention of a designated compliance provision; (c) a thing that there are reasonable grounds for suspecting is intended to be used for the purpose of contravening a designated compliance provision. 5 Subsection 4(1) Insert: Inspector‑General means the Inspector‑General of Water Compliance referred to in section 215B. investigation warrant means: (a) a warrant issued by a magistrate under section 226; or (b) a warrant signed by a magistrate under section 227. monitoring warrant means a warrant issued by a magistrate under section 225. paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise). relevant chief executive, in Division 5 of Part 8, has the meaning given by section 155A. 6 Section 9 (note 5) Omit "Note 5", substitute "Note 4". 7 Section 9 (note 6) Repeal the note, substitute: Note 5: See also subsection 165(6), which clarifies the constitutional basis for giving a direction under subsection 165(2) in certain circumstances. 8 Paragraph 18E(5)(a) Omit "section 216 or 219 or by subsection 238(1)", substitute "section 219 or by subsection 222D(1)". 9 After subsection 22(8) Insert: Basin Plan may confer functions or powers on Inspector‑General (8A) A provision of the Basin Plan that relates to a matter set out in the table in subsection (1), or a matter prescribed by the regulations for the purposes of subsection (8), may confer functions or powers on the Inspector‑General: (a) for the purpose of ensuring compliance with provisions of the Basin Plan that relate to that matter; or (b) otherwise relating to that matter. 10 After subsection 46(2) Insert: (2A) In preparing an amendment of a provision of the Basin Plan that confers functions or powers on the Inspector‑General or otherwise relates to the Inspector‑General, the Authority must obtain, and have regard to, the advice of the Inspector‑General. 11 Subsection 71(1) (note) Omit "Note", substitute "Note 1". 12 At the end of subsection 71(1) Add: Note 2: A Basin State must also provide information, in writing, to the Inspector‑General about some of the matters referred to in this subsection (see the Basin Plan). 13 At the end of section 71 Add: (3) The Authority must give a copy of each report received under subsection (1) to the Inspector‑General as soon as practicable after the Authority receives it. 14 Before Division 4 of Part 2 Insert: Division 3B—Audits 73L Audits (1) The Inspector‑General may conduct, or appoint or establish a person or body (an auditor) to conduct, periodic audits to assess the extent of compliance with either or both of the following: (a) the Basin Plan; (b) water resource plans. (2) In conducting an audit, the auditor must have regard to the following: (a) guidelines (if any) issued by the Inspector‑General relating to the conduct of an audit; (b) any applicable guidelines issued by the Inspector‑General under section 215V; (c) any applicable standards issued by the Inspector‑General under section 215VA. (3) The auditor must: (a) prepare a report setting out the findings of the audit and any recommendations arising from the audit; and (b) before the report is finalised, provide any person or body to which the audit relates with an opportunity to comment on the proposed findings and recommendations. (4) After a report prepared under subsection (3) is finalised, the Inspector‑General must publish a copy of the report on the Inspector‑General's website or the Department's website. 73M Responses to audit reports including recommendations that an agency take certain action (1) This section applies if: (a) the Inspector‑General publishes a report under subsection 73L(4); and (b) the report includes a recommendation that an agency of the Commonwealth, or an agency of a State or Territory, take certain action. (2) The agency to which the recommendation is made must give a written response to the Inspector‑General, within 90 days after the report was published or within any longer period agreed to by the Inspector‑General, that sets out: (a) whether the agency accepts the recommendation (in whole or in part); and (b) if the agency accepts the recommendation (in whole or in part)—details of any action that the agency proposes to take to give effect to the recommendation (in whole or in part); and (c) if the agency does not accept the recommendation (in whole or in part)—the reasons for not accepting the recommendation (in whole or in part). (3) The Inspector‑General may publish a copy of a response received under subsection (2) on the Inspector‑General's website or the Department's website. 15 Subsection 86J(2) Omit "section 216 or 219 or by subsection 223(1) or 238(1)", substitute "section 219 or by subsection 222D(1)". 16 Subsection 86J(3) Repeal the subsection, substitute: (3) Part 10 so applies as if references in section 221 to the Authority's functions under section 219 included references to the Authority's functions under this Part. 17 Paragraphs 86J(4)(b) and (c) Repeal the paragraphs. 18 At the end of Part 2A Add: 86K Additional functions of the Inspector‑General (1) The Inspector‑General has, in connection with: (a) the performance of the Inspector‑General's functions and duties under this Part; and (b) the exercise of the Inspector‑General's powers under this Part; such powers in a Basin State that is a referring State, or in the Australian Capital Territory, as the Inspector‑General has in connection with the performance of the Inspector‑General's other functions under this Act. (2) The application of subsection (1) to the Inspector‑General's powers under Part 10AA in relation to premises in, or information held in, a referring State or the Australian Capital Territory is not limited by subsection 223(1) or 238(1). (3) Part 10AA applies as if: (a) for the purposes of Subdivision B of Division 1 of that Part, a reference in the definition of evidential material in subsection 4(1) to a designated compliance provision included a reference to a provision of this Part or regulations made for the purposes of this Part; and (b) a reference in Subdivision B of Division 1 and Division 3 of that Part to a designated compliance provision included a reference to a provision of this Part or regulations made for the purposes of this Part. (4) However, an authorised compliance officer must not: (a) enter premises under Subdivision B of Division 1 of Part 10AA as applied by this section; or (b) exercise any of the powers under that Subdivision; except: (c) to the extent that this is reasonably necessary for any of the following purposes: (i) determining whether a provision of this Part or regulations made for the purposes of this Part has been, or is being, complied with; (ii) determining whether information given in compliance, or purported compliance, with section 222D, in its application under section 86J, is correct; (iii) determining whether information given in compliance, or purported compliance, with section 238, as applied by this section, is correct; or (d) if the authorised compliance officer has reasonable grounds for suspecting that there may be evidential material on the premises relating to a possible contravention of a provision of this Part or regulations made for the purposes of this Part. (5) Also, the Inspector‑General must not require a person to give information under Division 3 of Part 10AA as applied by this section unless the Inspector‑General has reason to believe that information relating to a matter that is relevant to the performance of the Inspector‑General's functions or duties, or the exercise of the Inspector‑General's powers, under this Part is in the person's possession, custody or control (whether held electronically or in any other form). 86L Functions and powers of the Inspector‑General The Inspector‑General has, for the purposes of this Part, the functions and powers conferred on it under Part 8 as an appropriate enforcement agency. 19 Paragraph 137(a) Repeal the paragraph, substitute: (a) the Inspector‑General if the contravention is a contravention of: (i) a designated compliance provision; or (ii) a provision of Part 2A or regulations made for the purposes of that Part; or (iii) a provision of Part 10AB; or 20 At the end of section 137 Add: ; or (d) if the contravention is of subsection 168(1) (the executive officer contravention)—the person or body that is the appropriate enforcement agency under paragraph (a), (b) or (c) of this section for the contravention by the body corporate of the civil penalty provision referred to in paragraph 168(1)(a) that relates to the executive officer contravention. 21 Section 140 (heading) Repeal the heading, substitute: 140 Grant of injunctions 22 Paragraph 140(5)(a) After "this Act,", insert "the Basin Plan,". 23 Paragraphs 147(3)(a) and (b) Repeal the paragraphs, substitute: (a) if the wrongdoer is an individual and a single amount is specified for the civil penalty provision—the specified amount; or (b) if the wrongdoer is an individual and separate amounts for individuals and bodies corporate are specified for the civil penalty provision—the amount specified for an individual; or (c) if the wrongdoer is a body corporate and a single amount is specified for the civil penalty provision—an amount equal to 5 times the specified amount; or (d) if the wrongdoer is a body corporate and separate amounts for individuals and bodies corporate are specified for the civil penalty provision—the amount specified for a body corporate. 24 At the end of section 147 Add: Civil double jeopardy (6) A Court must not make a pecuniary penalty order against a person for a contravention of a civil penalty provision if a pecuniary penalty order has been made against the person under a civil penalty provision of a law of the Commonwealth or a law of a State in relation to conduct that is substantially the same as the conduct constituting the contravention. Note: See also Subdivision B of this Division and section 250B. 25 Sections 148 and 149 Repeal the sections, substitute: 148 Multiple contraventions (1) A Court may make a single pecuniary penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. Note: For continuing contraventions of civil penalty provisions, see section 154B. (2) However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. 148A Proceedings may be heard together A Court may direct that 2 or more proceedings for pecuniary penalty orders are to be heard together. 149 Civil evidence and procedure rules for pecuniary penalty orders A Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a pecuniary penalty order. 26 Section 151 After "offence", insert "against a law of the Commonwealth or a law of a State". 27 Paragraph 152(1)(a) Repeal the paragraph, substitute: (a) criminal proceedings for an offence against a law of the Commonwealth or a law of a State are started, or have already been started, against the person; and 28 Subsection 152(2) Repeal the subsection, substitute: (2) The proceedings for the order (the civil proceedings) may be resumed if the person is not convicted of the offence. Otherwise: (a) the civil proceedings are dismissed; and (b) costs must not be awarded in relation to the civil proceedings. 29 Section 153 After "proceedings", insert "for an offence against a law of the Commonwealth or a law of a State". 30 Section 154 After "in criminal proceedings", insert "for an offence against a law of the Commonwealth or a law of a State". 31 At the end of Division 4 of Part 8 Add: Subdivision C—Miscellaneous 154A Ancillary contravention of civil penalty provisions (1) A person must not: (a) attempt to contravene a civil penalty provision; or (b) aid, abet, counsel or procure a contravention of a civil penalty provision; or (c) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or (d) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision; or (e) conspire with others to effect a contravention of a civil penalty provision. Civil penalty provision (2) A person who contravenes subsection (1) in relation to a civil penalty provision is taken to have contravened the provision. Note: Section 154C (which provides that a person's state of mind does not need to be proven in relation to a civil penalty provision) does not apply to the extent that proceedings relate to a contravention of subsection (1) of this section (see subsection 154C(2)). 154B Continuing contraventions of civil penalty provisions (1) If an act or thing is required under a civil penalty provision to be done: (a) within a particular period; or (b) before a particular time; then the obligation to do that act or thing continues until the act or thing is done (even if the period has expired or the time has passed). (2) A person who contravenes a civil penalty provision that requires an act or thing to be done: (a) within a particular period; or (b) before a particular time; commits a separate contravention of that provision in respect of each day during which the contravention occurs (including the day the relevant pecuniary penalty order is made or any later day). 154C State of mind (1) In proceedings for a pecuniary penalty order against a person for a contravention of a civil penalty provision, it is not necessary to prove: (a) the person's intention; or (b) the person's knowledge; or (c) the person's recklessness; or (d) the person's negligence; or (e) any other state of mind of the person. (2) Subsection (1) does not apply to the extent that the proceedings relate to a contravention of subsection 154A(1) (ancillary contravention of civil penalty provisions). (3) Subsection (1) does not affect the operation of section 154D (mistake of fact). (4) Subsection (1) does not apply to the extent that the civil penalty provision, or a provision that relates to the civil penalty provision, expressly provides otherwise. 154D Mistake of fact (1) A person is not liable to have a pecuniary penalty order made against the person for a contravention of a civil penalty provision if: (a) at or before the time of the conduct constituting the contravention, the person: (i) considered whether or not facts existed; and (ii) was under a mistaken but reasonable belief about those facts; and (b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision. (2) For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if: (a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and (b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion. (3) A person who wishes to rely on subsection (1) or (2) in proceedings for a pecuniary penalty order bears an evidential burden in relation to that matter. 154E Exceptions etc. to civil penalty provisions—burden of proof If, in proceedings for a pecuniary penalty order against a person for a contravention of a civil penalty provision, the person wishes to rely on any exception, exemption, excuse, qualification or justification that applies in relation to the civil penalty provision, then the person bears an evidential burden in relation to that matter. 32 After section 155 Insert: 155A Relevant chief executive The relevant chief executive for the purpose of exercising powers under this Division in relation to an infringement notice that has been given to a person by an appropriate enforcement agency is: (a) if the infringement notice was given by the Inspector‑General—the Inspector‑General; or (b) if the infringement notice was given by the ACCC—the ACCC; or (c) if the infringement notice was given by the Minister—the Secretary of the Department. 33 Subsection 156(3) Repeal the subsection, substitute: (3) A single infringement notice must relate only to a single contravention of a single designated civil penalty provision unless subsection (4) applies. (4) The appropriate enforcement agency may give a person a single infringement notice relating to multiple contraventions of a single designated civil penalty provision if: (a) the provision requires the person to do a thing within a particular period or before a particular time; and (b) the person fails or refuses to do that thing within that period or before that time; and (c) the failure or refusal occurs on more than 1 day; and (d) each contravention is constituted by the failure or refusal on one of those days. However, the infringement notice must not require the person to pay more than one penalty in respect of the same conduct. Note: For continuing contraventions of civil penalty provisions, see section 154B. 34 Sections 157 to 159 Repeal the sections substitute: 157 Matters to be included in an infringement notice (1) An infringement notice must: (a) be identified by a unique number; and (b) state the day on which it is given; and (c) state the name of the person to whom the notice is given; and (d) state the name and contact details of the appropriate enforcement agency that gave the notice; and (e) give brief details of the alleged contravention, or each alleged contravention, to which the notice relates, including: (i) the civil penalty provision that was allegedly contravened; and (ii) the maximum penalty that a court could impose for each contravention, if the provision were contravened; and (iii) the time (if known) and day of, and the place of, each alleged contravention; and (f) state the amount that is payable under the notice; and (g) give an explanation of how payment of the amount is to be made; and (h) state that, if the person to whom the notice is given pays the amount to the appropriate enforcement agency, on behalf of the Commonwealth, within 28 days after the day the notice is given, then (unless the notice is withdrawn), proceedings seeking a pecuniary penalty order will not be brought in relation to the alleged contravention; and (i) state that payment of the amount is not an admission of liability; and (j) state that the person may apply to the relevant chief executive to have the period in which to pay the amount extended; and (k) state that the person may choose not to pay the amount and, if the person does so, proceedings seeking a pecuniary penalty order may be brought in relation to the alleged contravention; and (l) set out how the notice can be withdrawn; and (m) state that, if the notice is withdrawn, proceedings seeking a pecuniary penalty order may be brought in relation to the alleged contravention; and (n) state that the person may make written representations to the relevant chief executive seeking the withdrawal of the notice; and (o) set out such other matters (if any) as are prescribed by the regulations. Amount of penalty (2) If the infringement notice relates to only one alleged contravention of the provision by the person, the amount to be stated in the notice for the purposes of paragraph (1)(f) is the lesser of the following: (a) one‑fifth of the maximum penalty that a court could impose on the person for that contravention; (b) 12 penalty units where the person is an individual, or 60 penalty units where the person is a body corporate. Note: To work out the maximum penalty for the purposes of paragraph (a) of this subsection, see subsection 147(3). (3) If the infringement notice relates to more than one alleged contravention of the provision by the person, the amount to be stated in the notice for the purposes of paragraph (1)(f) is the lesser of the following: (a) one‑fifth of the amount worked out by adding together the maximum penalty that a court could impose on the person for each alleged contravention; (b) either: (i) if the person is an individual—the number of penalty units worked out by multiplying the number of alleged contraventions by 12; or (ii) if the person is a body corporate—the number of penalty units worked out by multiplying the number of alleged contraventions by 60. Note 1: Under subsection 156(4), a single infringement notice may only deal with multiple contraventions if they are contraventions of a single provision continuing over a period. Note 2: To work out the maximum penalty for the purposes of paragraph (a) of this subsection, see subsection 147(3). 158 Extension of time to pay amount (1) A person to whom an infringement notice has been given may apply to the relevant chief executive for an extension of the period referred to in paragraph 157(1)(h). (2) If the application is made before the end of that period, the relevant chief executive may, in writing, extend that period. The relevant chief executive may do so before or after the end of that period. (3) If the relevant chief executive extends that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 157(1)(h) is taken to be a reference to that period so extended. (4) If the relevant chief executive does not extend that period, a reference in this Division, or in a notice or other instrument under this Division, to the period referred to in paragraph 157(1)(h) is taken to be a reference to the period that ends on the later of the following days: (a) the day that is the last day of the period referred to in paragraph 157(1)(h); (b) the day that is 7 days after the day the person was given notice of the relevant chief executive's decision not to extend the period. (5) The relevant chief executive may extend the period more than once under subsection (2). 159 Withdrawal of an infringement notice Representations seeking withdrawal of infringement notice (1) A person to whom an infringement notice has been given may make written representations to the relevant chief executive seeking the withdrawal of the notice. Withdrawal of infringement notice (2) The relevant chief executive may withdraw an infringement notice given to a person (whether or not the person has made written representations seeking the withdrawal). (3) When deciding whether or not to withdraw an infringement notice (the relevant infringement notice), the relevant chief executive: (a) must take into account any written representations seeking the withdrawal that were given by the person to the relevant chief executive; and (b) may take into account the following: (i) whether a court has previously imposed a penalty on the person for a contravention of a provision subject to an infringement notice under this Division; (ii) the circumstances of the alleged contravention; (iii) whether the person has paid an amount, stated in an earlier infringement notice, for a contravention of a provision subject to an infringement notice under this Division if the contravention is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention in the relevant infringement notice; (iv) any other matter the relevant chief executive considers relevant. Notice of withdrawal of infringement notice (4) Notice of the withdrawal of the infringement notice must be given to the person. The withdrawal notice must state: (a) the person's name and address; and (b) the day the infringement notice was given; and (c) the identifying number of the infringement notice; and (d) that the infringement notice is withdrawn; and (e) that proceedings seeking a pecuniary penalty order may be brought in relation to the alleged contravention. Refund of amount if infringement notice withdrawn (5) If: (a) the relevant chief executive withdraws the infringement notice; and (b) the person has already paid the amount stated in the notice; the Commonwealth must refund to the person an amount equal to the amount paid. 35 Paragraphs 163(2)(a) and (b) After "this Act,", insert "the Basin Plan,". 36 Section 165 (heading) Omit "Authority", substitute "Inspector‑General". 37 Subsection 165(1) Omit "the Authority", substitute "the Inspector‑General". 38 Subsection 165(2) Omit "The Authority", substitute "The Inspector‑General". 39 At the end of subsection 165(2) Add: Note: The Inspector‑General's power to direct a person under this subsection is limited as provided by subsection (6). 40 Subsection 165(3) Omit "the Authority", substitute "the Inspector‑General". 41 Subsection 165(5) Omit "The Authority", substitute "The Inspector‑General". 42 At the end of section 165 Add: Application of this section (6) If the Inspector‑General is satisfied that a person: (a) has engaged in, is engaging in or is likely to engage in conduct referred to in paragraph (1)(b); or (b) has omitted, is omitting or is likely to omit to perform an act and the omission is covered by paragraph (1)(c); the Inspector‑General may direct the person under subsection (2) only if: (c) the direction gives effect to a relevant international agreement; or (d) the person is a constitutional corporation; or (e) the direction relates to conduct or an omission that has affected, is affecting or is likely to affect the activities of a constitutional corporation; or (f) the direction relates to conduct or an omission that took place, is taking place or is likely to take place in the course of trade or commerce: (i) with other countries; or (ii) among the States; or (iii) between a State and a Territory; or (g) the direction relates to conduct or an omission that took place, is taking place or is likely to take place in a Territory; or (h) the direction relates to conduct that took place, is taking place or is likely to take place using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution); or (i) the person is an agency of the Commonwealth. 43 Section 166 Repeal the section, substitute: 166 Failing to comply with enforcement notice (1) A person contravenes this subsection if: (a) the person has been given a notice under subsection 165(2); and (b) the person fails to comply with the direction in the notice. Strict liability offence (2) A person commits an offence of strict liability if the person contravenes subsection (1). Note: See section 170A in relation to the physical elements of the offence. Penalty: 30 penalty units. (3) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day the person is convicted of the offence or any later day) during which the contravention continues. Civil penalty provision (4) 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: 600 penalty units. (5) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day a relevant pecuniary penalty order is made against the person or any subsequent day) during which the contravention continues. 44 Section 167 Omit "The Authority", substitute "The Inspector‑General". 45 After Division 7 of Part 8 Insert: Division 7A—Public warning notices 167A Inspector‑General may issue public warning notice (1) The Inspector‑General may issue to the public a written notice containing a warning about the conduct of a person if: (a) the Inspector‑General reasonably suspects that the conduct may constitute a contravention of: (i) section 34, 35, 58 or 59; or (ii) a provision of Division 3A of Part 2; and (b) the Inspector‑General is satisfied that one or more of the following has occurred, is occurring or is likely to occur, as a result of the conduct: (i) injury or damage to human beings; (ii) damage to property; (iii) harm to, or loss of, Basin water resources; and (c) the Inspector‑General is satisfied that it is in the public interest to issue the notice. Note 1: The power conferred by this subsection may be delegated only to an SES employee or an acting SES employee (see subsection 215W(3)). Note 2: No civil proceeding lies against the Inspector‑General for loss, damage or injury of any kind suffered by another person as a result of the issue, in good faith, of a notice under this subsection (see section 215X). (2) A notice issued under subsection (1) is not a legislative instrument. (3) In this section: conduct includes an act or omission. 46 Paragraph 168(1)(d) Omit "all". 47 Subsection 168(3) Omit "contravened by the body corporate", substitute "referred to in paragraph (1)(a)". 48 Subsection 169(1) Omit "all reasonable", substitute "reasonable". 49 Subparagraphs 169(1)(a)(i) and (iii) After "this Act,", insert "the Basin Plan,". 50 After subparagraph 169(1)(b)(i) Insert: (ia) the Basin Plan; or 51 Subsection 170(1) After "for the purposes of this Act", insert "and each legislative instrument made under this Act". 52 Subsection 170(2) After "for the purposes of this Act", insert "or any legislative instrument made under this Act". 53 Subsection 170(3) After "for the purposes of this Act", insert "and each legislative instrument made under this Act". 54 Subsection 170(4) After "for the purposes of this Act", insert "or any legislative instrument made under this Act". 55 Paragraphs 170(5)(a) and (c) Omit "this Act, the regulations, the water charge rules and the water market rules", substitute "this Act and each legislative instrument made under this Act". 56 At the end of Part 8 Add: Division 10—General rules about offences and civil penalty provisions 170A Physical elements of offences (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence. (2) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct provision. Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility. 170B Contravening an offence provision or a civil penalty provision (1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty. (2) For the purposes of this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision. 57 Paragraphs 175(2)(c) and (d) Repeal the paragraphs. 58 Subsection 200(3) Omit "section 238 or Part 8", substitute "section 222D". 59 Paragraph 210(1)(i) Omit "(otherwise than under Part 8)". 60 Section 215 (heading) Repeal the heading, substitute: 215 Protection of confidential information 61 Subsection 215(1) Omit "all". 62 Subsection 215(2) Omit "Disclosing", substitute "For the purposes of subsection (1), the disclosure of". 63 Subsection 215(4) Omit "Disclosing", substitute "For the purposes of subsection (1), the disclosure of". 64 Paragraph 215(4)(b) Repeal the paragraph, substitute: (b) the Secretary of the Department, or an officer or employee in the Department, for the purpose of advising the Minister. 65 Subsection 215(6) Omit "this section", substitute "subsection (1)". 66 At the end of Division 6 of Part 9 Add: 215A Disclosure of information to the Minister or the Secretary of the Department (1) This section applies to information obtained in, or in connection with, the performance of the Authority's functions or the exercise of the Authority's powers. Authorisation to disclose information to Minister or the Secretary of Department (2) The Authority may disclose the information to: (a) the Minister; or (b) the Secretary of the Department, or an officer or employee in the Department, for the purpose of advising the Minister. Note 1: This subsection constitutes an authorisation for the purposes of the Privacy Act 1988 and other laws (including the common law). Note 2: The Authority may also disclose information to the Inspector‑General for the purposes of facilitating the performance of the Inspector‑General's functions or the exercise of the Inspector‑General's powers (see section 215UC). 67 After Part 9 Insert: Part 9A—Inspector‑General of Water Compliance (administrative provisions) Division 1—Inspector‑General of Water Compliance: establishment and functions 215B Inspector‑General of Water Compliance There is to be an Inspector‑General of Water Compliance. 215C Functions of the Inspector‑General (1) The Inspector‑General has the following functions: (a) to monitor and provide independent oversight of the performance of functions and exercise of powers by agencies of the Commonwealth under the following: (i) this Act (other than Parts 1A, 2A, 4, 4A, 10A and 11A); (ii) regulations and other legislative instruments made under this Act (other than regulations or other legislative instruments made for the purposes of Part 1A, 2A, 4, 4A, 10A or 11A); (iii) the Basin Plan; (iv) water resource plans; (b) to monitor and provide independent oversight of the performance by agencies of the Basin States of their obligations in relation to the management of Basin water resources under the following: (i) this Act (other than Parts 1A, 2A, 4, 4A, 10A and 11A); (ii) regulations and other legislative instruments made under this Act (other than regulations or other legislative instruments made for the purposes of Part 1A, 2A, 4, 4A, 10A or 11A); (iii) the Basin Plan; (iv) water resource plans; (c) to monitor and provide independent oversight of the implementation by agencies of the Commonwealth and agencies of the Basin States of the commitments in the agreements referred to in subsection (3); (d) to engage with the Australian community in relation to the management of Basin water resources; (e) functions conferred on the Inspector‑General by: (i) Part 8 (enforcement); and (ii) Part 10AA (special powers); and (iii) Part 10AB (inquiry powers); (f) any other functions conferred on the Inspector‑General by this Act, the Basin Plan or any other legislative instrument made under this Act; (g) to do anything incidental to, or conducive to, the performance of the above functions. (2) The Inspector‑General's functions under subsection (1) do not include monitoring and providing independent oversight of the performance of functions or exercise of powers: (a) by the ACCC in giving advice: (i) for the purposes of subsection 42(2) or 46(2) (relating to the water trading rules); or (ii) under subsection 212(2) (relating to fees the Authority may charge for its services); or (b) by the Productivity Commission in conducting an inquiry into a matter referred to the Productivity Commission under section 87 or 88. Basin agreements (3) For the purposes of paragraph (1)(c), the agreements are the following agreements (including any amendments of those agreements): (a) the Murray‑Darling Basin Compliance Compact entered into in June 2018; (b) the Intergovernmental Agreement on Implementing Water Reform in the Murray‑Darling Basin entered into in June 2013; (c) the National Partnership Agreement on Implementing Water Reform in the Murray‑Darling Basin entered into in February 2014; (d) the Project Agreement for Murray‑Darling Basin Water Infrastructure, New South Wales‑Led Efficiency Projects entered into in August 2019; (e) the Project Agreement for Murray‑Darling Basin Water Infrastructure, South Australia‑Led Efficiency Projects entered into in March 2019; (f) the Project Agreement for Murray‑Darling Basin Water Infrastructure, Australian Capital Territory‑Led Efficiency Projects entered into in May 2019; (g) the Murray‑Darling Basin Plan 2012 Implementation Agreement entered into in August 2013; (h) the Intergovernmental Agreement on Federal Financial Relations entered into in July 2011, to the extent that it relates to: (i) the National Partnership Agreement on Implementing Water Reform in the Murray‑Darling Basin entered into in February 2014; and (ii) project agreements relating to Basin water resources; (i) the Intergovernmental Agreement on a National Water Initiative entered into in June 2004, to the extent that it relates to Basin water resources; (j) any other agreement that: (i) is entered into by the Authority, or the Commonwealth Environmental Water Holder, and one or more Basin States; and (ii) is prescribed by the regulations for the purposes of this paragraph; (k) any other agreement that: (i) is entered into by the Commonwealth and one or more Basin States; and (ii) is prescribed by the regulations for the purposes of this paragraph. Note 1: The Compact referred to in paragraph (3)(a) and the Agreement referred to in paragraph (3)(g) could in 2021 be viewed on the Authority's website (http://www.mdba.gov.au). Note 2: The Agreements referred to in paragraphs (3)(b) to (f) and (i) could in 2021 be viewed on the Productivity Commission's website (http://www.pc.gov.au). Note 3: The Agreement referred to in paragraph (3)(h) could in 2021 be viewed on the Federal Financial Relations website (http://www.federalfinancialrelations.gov.au). 215D Minister may give directions to Inspector‑General (1) The Minister may give directions, which must be consistent with the objects of this Act, to the Inspector‑General about the performance of the Inspector‑General's functions. Note: See also subsection 239AA(2) which provides for the Minister to direct the Inspector‑General to conduct an inquiry into a particular matter. (2) However, the Inspector‑General is not subject to direction under subsection (1) in relation to any of the following: (a) the exercise of a power under Division 3B of Part 2 (audits); (b) the performance of a function that is conferred by section 86K (enforcement of Part 2A); (c) the exercise of a power under Part 8 (enforcement); (d) the monitoring of compliance with, or the investigation of possible contraventions of, a designated compliance provision; (e) the exercise of a power under Division 3 of Part 10AA (information gathering). (3) The Inspector‑General must comply with a direction under subsection (1). (4) A direction given under subsection (1) is not a legislative instrument. Division 2—Annual work plans 215E Inspector‑General must prepare annual work plan (1) The Inspector‑General must prepare a work plan, in writing, for each financial year. (2) The work plan for a financial year must set out the key outcomes and priorities for the Inspector‑General for the financial year. (3) A work plan for a financial year is not a legislative instrument. (4) The Inspector‑General must publish the work plan for a financial year on the Inspector‑General's website or the Department's website as soon as practicable after it has been finalised. 215F Review of annual work plan (1) The Inspector‑General must review the work plan for the Inspector‑General for a financial year at least once during the financial year. (2) The review must consider whether the work plan continues to be appropriate having regard to: (a) the nature of the functions to be performed by the Inspector‑General during the financial year; and (b) the resources available to perform those functions. 215G Variation of annual work plan (1) The Inspector‑General may vary the work plan for the Inspector‑General for a financial year: (a) to take account of the findings of a review of the work plan conducted under section 215F; or (b) if the Inspector‑General considers the variation is necessary for any other reason. (2) The Inspector‑General must publish the work plan, as varied, on the Inspector‑General's website or the Department's website as soon as practicable after the work plan has been varied. (3) A varied work plan is not a