Natural Resources Access Regulator v Harris; Natural Resources Access Regulator v Timmins

[2020] NSWLEC 104

Land and Environment Court

New South Wales

Medium Neutral Citation:

Natural Resources Access Regulator v Harris; Natural Resources Access Regulator v Timmins [2020] NSWLEC 104

Hearing dates:

13-15 July 2020

Date of orders:

31 July 2020

Decision date:

31 July 2020

Jurisdiction:

Class 5

Before:

Pain J

Decision:

See [144] of judgment

Catchwords:

PROSECUTION – three charges of failure of occupier to operate or operate properly water metering equipment not proved beyond reasonable doubt

PROSECUTION – three charges of failure of farm manager to operate or operate properly water metering equipment not proved beyond reasonable doubt

Legislation Cited:

Evidence Act 1995 (NSW) s 156

Interpretation Act 1987 (NSW) ss 6, 33

Natural Resources Access Regulator Act 2017 (NSW) s 11

Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012 (NSW)

Water Management Act 2000 (NSW) s 3, Ch 3 Pt 2 (ss 56, 60A, 60B, 66), Ch 3 Pt 3 (ss 88A, 89, 90, 91G, 91I, 91L, 100, 101, 102, 103), ss 326, 338A, 338B, 338C, 339, 339B, 367, 390, Dictionary

Water Management Amendment Act 2018 (NSW) s 101A

Cases Cited:

Attorney General of New South Wales v WB [2020] NSWCA 7

Beckwith v R (1976) 135 CLR 569; [1976] HCA 55

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2

Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15

Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36

Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314; [2008] FCA 369

Mule v R (2005) 221 ALR 85; [2005] HCA 49

Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 262; [2017] HCA 34

The Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Trade Practices Commission v TNT Management Pty Limited (1984) 56 ALR 647

Category:

Principal judgment

Parties:

Proceedings Nos 18/238837-9
Natural Resources Access Regulator (Prosecutor)
Peter Harris (Defendant)

Proceedings Nos 18/238877-9
Natural Resources Access Regulator (Prosecutor)
Justin Timmins (Defendant)

Representation:

COUNSEL:
Edward Muston SC and G Wright (Prosecutor)
Michael Elliott SC and G Lewer (Defendants)

SOLICITORS:
Crown Solicitor’s Office (Prosecutor)
Horton Rhodes Lawyers (Defendants)

File Number(s):

18/238837-9, 18/238877-9

Judgment

1. The Defendant Mr Peter Harris is charged with three offences under s 91I(2) of the Water Management Act2000 (NSW) (WM Act) of taking water when metering equipment was not operating or not operating properly on the properties known as “Mercadool” and “Four G” (Mercadool) near Walgett, occupied by him between 6 and 8 August 2015, being proceedings Nos 18/238837, 18/238838 and 18/238839. The three charges relate to three different pumps located on the Barwon River at Mercadool. The other Defendant Mr Justin Timmins the farm manager of Mercadool faces three similar but not identical charges arising from the same circumstances on 6 August 2015, being proceedings Nos 18/238877, 18/238878 and 18/238879. The Defendants have pleaded not guilty to all six charges. The offences charged are strict liability so that mens rea is not an element of the offence.

2. The evidence relied on by all parties applies to all six offences in relation to Elements 1 to 4. An additional element of the offence in the Harris matters, identified below as Element 5, is the subject of additional evidence as outlined below in relation to that element.

Legislation

Water Management Act 2000 (NSW) as in force in August 2015

3. Relevant sections of the WM Act as in force in August 2015 during the charge periods provided:

Chapter 1 Preliminary

…

3   Objects

The objects of this Act are to provide for the sustainable and integrated management of the water sources of the State for the benefit of both present and future generations and, in particular:

(a)   to apply the principles of ecologically sustainable development, and

(b)   to protect, enhance and restore water sources, their associated ecosystems, ecological processes and biological diversity and their water quality, and

(c)   to recognise and foster the significant social and economic benefits to the State that result from the sustainable and efficient use of water, including:

(i)   benefits to the environment, and

(ii)   benefits to urban communities, agriculture, fisheries, industry and recreation, and

(iii)   benefits to culture and heritage, and

(iv)   benefits to the Aboriginal people in relation to their spiritual, social, customary and economic use of land and water,

(d)   to recognise the role of the community, as a partner with government, in resolving issues relating to the management of water sources,

(e)   to provide for the orderly, efficient and equitable sharing of water from water sources,

(f)   to integrate the management of water sources with the management of other aspects of the environment, including the land, its soil, its native vegetation and its native fauna,

(g)   to encourage the sharing of responsibility for the sustainable and efficient use of water between the Government and water users,

(h)   to encourage best practice in the management and use of water.

…

Chapter 3 Water management implementation

…

Part 2 Access licences

Division 1 Preliminary

…

56   Access licences

(1)   An access licence entitles its holder:

(a)   to specified shares in the available water within a specified water management area or from a specified water source (the share component), and

(b)   to take water:

(i)   at specified times, at specified rates or in specified circumstances, or in any combination of these, and

(ii)   in specified areas or from specified locations,

(the extraction component).

…

Division 1A Offences

60A   Taking water without, or otherwise than authorised by, an access licence

(1)   A person:

(a)   who takes water from a water source to which this Part applies, and

(b)   who does not hold an access licence for that water source, and

(c)   who intentionally or negligently takes that water without obtaining an access licence for that water source,

is guilty of an offence.

Tier 1 penalty.

(2)   A person:

(a)   who takes water from a water source to which this Part applies, and

(b)   who does not hold an access licence for that water source,

is guilty of an offence.

Tier 2 penalty.

(3)   A holder of an access licence:

(a)   who takes water from a water source to which this Part applies otherwise than as authorised by the licence, and

(b)   who intentionally or negligently takes that water without obtaining an access licence that authorises the taking of that water,

is guilty of an offence.

Tier 1 penalty.

(4)   A holder of an access licence who takes water from a water source to which this Part applies otherwise than as authorised by the licence is guilty of an offence.

Tier 2 penalty.

…

(7)   It is a defence to a prosecution under this section in relation to the taking of water from a water source to which this Part applies if the accused person establishes that the water was taken:

(a)   by means of a nominated water supply work for that water source, or

(b)   by means of a water supply work that, at all material times, was nominated in relation to the interstate equivalent of an access licence,

and was otherwise taken in accordance with the terms and conditions of the access licence in connection with which it is nominated.

(8)   The defence established by subsection (7) (b) is not available unless the Minister has been duly notified that the relevant water supply work has been nominated as referred to in that paragraph.

60B   Contravention of terms and conditions of access licence

(1)   A person (other than the holder) who takes water pursuant to an access licence is guilty of an offence if the person contravenes any term or condition of the licence.

Tier 2 penalty.

(2)   If any term or condition of an access licence is contravened by any person, each holder of the access licence is guilty of an offence.

Tier 2 penalty.

(3)   It is a defence to a prosecution under subsection (2) if the accused person establishes:

(a)   that the contravention of the term or condition was caused by another person, and

(b)   that the other person was not associated with the holder at the time the term or condition was contravened, and

(c)   that the holder took all reasonable steps to prevent the contravention of the term or condition.

A person is associated with the holder for the purposes of this subsection (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the holder.

…

Division 3 Conditions, duration and amendment of access licences

66   Conditions of access licence generally

(1)   An access licence is subject to such conditions as the Minister may from time to time impose:

(a)   which must include such conditions as are required to be imposed on the licence by this Act or by any relevant management plan (mandatory conditions), and

(b)   which may include such other conditions, such as:

(i) conditions to give effect to any agreement between an applicant and objector under section 62 (5), and

(ii)   conditions relating to the protection of the environment,

as the Minister thinks fit (discretionary conditions).

…

Part 3 Approvals

Division 1 Preliminary

88A   Application of Part

(1)   This Part applies to:

(a)   each part of the State or each water source, and

(b)   each type or kind of approval that relates to that part of the State or that water source,

that is declared by proclamation to be a part of the State or water source, and type or kind of approval, to which this Part applies.

(2)   Despite subsection (1), specified provisions of this Part may be declared by proclamation to apply to the whole of the State, and apply accordingly.

89   Water use approvals

(1)   A water use approval confers a right on its holder to use water for a particular purpose at a particular location.

(2)   A water use approval may authorise the use within New South Wales of water taken from a water source outside New South Wales.

90   Water management work approvals

(1)   There are three kinds of water management work approvals, namely, water supply work approvals, drainage work approvals and flood work approvals.

(2)   A water supply work approval authorises its holder to construct and use a specified water supply work at a specified location.

…

Division 1A Offences

…

91G   Contravention of terms and conditions of approval

(1)   A person (other than the holder) who uses water, constructs or uses a water management work or carries out a controlled activity or an aquifer interference activity, pursuant to an approval is guilty of an offence if the person contravenes any term or condition of the approval.

Tier 2 penalty.

(2)   If any term or condition of an approval is contravened by any person, each holder of the approval is guilty of an offence.

Tier 2 penalty.

(3)   It is a defence to a prosecution under subsection (2) if the accused person establishes:

(a)   that the contravention of the term or condition was caused by another person, and

(b)   that the other person was not associated with the holder at the time the term or condition was contravened, and

(c)   that the holder took all reasonable steps to prevent the contravention of the term or condition.

A person is associated with the holder for the purposes of this subsection (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the holder.

…

91I   Taking water when metering equipment not working

(1)   A person who takes water from a water source to which this Part applies by means of a metered work while its metering equipment is not operating properly or is not operating and:

(a)   who intentionally or negligently fails to ascertain whether the metering equipment is not operating properly or is operating, or

(b)   who knows or has reasonable cause to believe that the metering equipment is not operating properly or is not operating,

is guilty of an offence.

Tier 1 penalty.

(2)   A person who takes water from a water source to which this Part applies by means of a metered work while its metering equipment is not operating properly or is not operating is guilty of an offence.

Tier 2 penalty.

(3)   Subsection (2) does not apply if:

(a)   the person is authorised by the Minister in writing to take water by means of a metered work while its metering equipment is not operating properly or is not operating, and

(b)   the water is taken in accordance with any conditions specified in the authorisation and any requirements prescribed by the regulations for the purposes of this subsection.

(4)   In this section, metered work means a water management work in connection with which metering equipment has been installed.

…

91L   Liability of occupier of premises for certain offences

(1)   The occupier of premises at which:

(a)   a water management work has been constructed or used in contravention of a provision of this Division, or

(b)   a controlled activity or aquifer interference activity has been carried out in contravention of a provision of this Division,

is taken to have contravened that provision.

(2)   However, subsection (1) does not apply if it is established that:

(a)   the work was constructed or used, or the activity was carried out, by a person other than the occupier, and

(b)   the other person was not associated with the occupier at the time the work was constructed or used or the activity was carried out, and

(c)   the occupier took all reasonable steps to prevent the work being constructed or used or the activity being carried out.

A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier.

(3)   Subsection (1) does not prevent proceedings being taken under this Act against the person who actually committed the offence.

…

Division 3 Conditions and duration of approvals

100   Conditions of approval generally

(1)   An approval is subject to such conditions as the Minister may from time to time impose:

(a)   which must include such conditions as are required to be imposed on the approval by this Act or by any relevant management plan (mandatory conditions), and

(b)   which may include such other conditions, such as:

(i)   conditions to give effect to any agreement between an applicant and objector under section 93 (5), and

(ii)   conditions relating to the protection of the environment,

as the Minister thinks fit (discretionary conditions).

…

Chapter 7 Enforcement

Part 1 Directions to landholder and other persons

…

Division 2 Conservation of water

…

326   Directions to install and maintain metering equipment

(1) The Minister may, by order in writing served on:

(a)   a landholder on whose land is situated a water supply work, or

(b)   any person having the control and management of such a work,

direct the landholder or person to take specified measures to install, replace or to properly maintain metering equipment for use in connection with that work.

(2)   Unless the direction otherwise specifies, a direction to take specified measures to install or replace metering equipment is taken to include:

(a)   a direction that the equipment be properly maintained, and

(b)   a direction that the equipment not be used unless it is properly sealed.

(2A)   A direction under this section may specify the only person or persons who may install, replace, maintain or seal metering equipment.

(3)   Metering equipment is properly maintained and properly sealed only if it is maintained and sealed by a duly qualified person or a person specified under subsection (2A).

(4)   In this section, duly qualified person means a person who has such qualifications, skills and experience as are prescribed by the regulations.

…

Part 2 Other enforcement powers

…

Division 2 Powers to require information or records

…

338A Powers of authorised officers to require information and records

(1) The Minister may, by notice in writing given to a person, require the person to furnish to the Minister such information or records (or both) as he or she may require for the purposes of this Act.

(2)   An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as he or she may require for the purposes of this Act.

(3)   A notice under this Division must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.

(4)   A notice under this Division may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.

(5)   The person to whom any record is furnished under this Division may take copies of it.

(6)   If any record required to be furnished under this Division is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.

…

Part 5 Legal proceedings and appeals

Division 1 Legal proceedings

…

367   Evidentiary certificates

(1)   A certificate that is issued by the Minister and that states:

(a)   that an instrument, a copy of which is set out in or annexed to the certificate, being an instrument purporting:

(i)   to be issued, made or given for the purposes of this Act, and

(ii)   to have been signed by the person authorised to issue, make or give the instrument, or by another person acting as delegate or on behalf of the person,

was issued, made or given on a specified day, or

…

(c)   that an image, a copy of which is set out in or annexed to the certificate:

(i)   is a photograph or other remotely-sensed image of a specified kind, and

(ii)   portrays specified land as at a specified date, or

…

(2)   A certificate that is issued by the Minister and that states that, on a date or during a period specified in the certificate:

…

(g)   a specified water management work was, or was not, at a specified location within a specified parcel of land, or

(h)   a specified water management work was, or was not, the subject of a specified water management work approval, or

…

(k)   a specified person was, or was not, an authorised officer in relation to a specified provision of this Act, or

…

(o)   a specified access licence or approval was, or was not, in force, or

…

(s2) Part 2 or 3 of Chapter 3 of this Act does, or does not, apply to a specified water source or part of a specified water source, or

…

Dictionary

                                                                                                                                                                                                                 (Section 4)

…

metering equipment includes any device used for or in connection with measuring the flow of water and any ancillary wiring, pipework, telemetry equipment or apparatus and any supporting structure.

…

use a water management work means—

(a)   in relation to a water supply work—

(i)   to operate the work for any purpose referred to in paragraph (a), (b) or (c) of the definition of water supply work, or

(ii)   to allow the work to operate for that purpose, or

…

water management work means a water supply work, a drainage work or a flood work, and includes any part of such a work.

…

water supply work means—

(a)   without limiting paragraphs (b)–(g), a work (such as a water pump or water bore) for the purpose of taking water from a water source, or

…

Evidence Act 1995 (NSW)

4. Section 156(1) of the Evidence Act 1995 (NSW) provides:

Part 4.3 Facilitation of proof

…

Division 2 Matters of official record

…

156   Public documents

(1)   A document that purports to be a copy of, or an extract from or summary of, a public document and to have been—

(a)   sealed with the seal of a person who, or a body that, might reasonably be supposed to have the custody of the public document, or

(b)   certified as such a copy, extract or summary by a person who might reasonably be supposed to have custody of the public document,

is presumed, unless the contrary is proved, to be a copy of the public document, or an extract from or summary of the public document.

Summons concerning Harris

5. The three summonses stating the charges concerning Mr Harris are in similar terms. The summons in proceedings No 18/238837 is set out:

The prosecutor claims:

1. An order that the Defendant, Peter Harris of 92 Hargrave Street, Paddington, in the State of New South Wales, appear before a Judge of the Court to answer to the charge that between about 6 August 2015 and 8 August 2015 inclusive, at the properties known as Mercadool and Four G at Mercadool Road, Walgett, in the County of Denham, the Parishes of Denuleroi, Pagan, Manilla, Barwon and Terribie in the State of New South Wales (together, Mercadool), the Defendant committed an offence contrary to s 91I(2) of the Water Management Act 2000 (the Act) pursuant to s 91L of the Act in that water was taken from a water source to which Part 3 of Chapter 3 of the Act applied by means of a metered work while its metering equipment was not operating properly or was not operating on land occupied by the Defendant.

                                                         Particulars

(a)   Mercadool

The Defendant was the occupier of Mercadool at all relevant times.

(b)   Water supply work

The pump identified as “Pump 3” in the photograph annexed to this Summons and marked “Annexure 1” at Mercadool, authorised for use on the Barwon River pursuant to Water Supply Works and Water Use Approval 85WA753317 (Pump 3).

(c)   Metering equipment

Pump 3 had the following metering equipment installed in connection with it:

(i)   engine hour meter; and

(ii)   MACE meter.

(d)   Water source

The Barwon-Darling Unregulated River Water Source is a water source to which Part 3 of Chapter 3 of the Act applies in relation to all approvals other than drainage work approvals, flood work approvals and aquifer interference approvals, as proclaimed in the Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012.

(e)   Taking water

Pump 3 was used to take water from the Barwon-Darling Unregulated River Water Source between about 6 August 2015 and 8 August 2015 inclusive.

(f)   Metering equipment not operating properly or not operating

At the time Pump 3 was used to take water as specified in sub-paragraph (e) above:

(i)   the engine hour meter was not working at all; and

(ii)   the MACE meter was not working properly.

2.   An order that the Defendant be dealt with according to law for the commission of the above offence.

3.   An order that the Defendant pay the Prosecutor's costs.

4.   Such orders as the Court in its discretion sees fit to make.

6. Photographs attached to the summons show pumps labelled Pumps 1, 2, 3, 4 and 5. Pumps 3, 4 and 5 are on a raised platform.

7. In the charges against Mr Harris the elements which the Prosecutor must prove beyond reasonable doubt are as follows:

Element 1:	Water was taken from the Barwon River
Element 2:	From a water source to which Pt 3 of Ch 3 of the WM Act applied
Element 3:	By means of a metered work
Element 4:	While its metering equipment was not operating properly or not operating
Element 5:	On land occupied by the Defendant (his liability being pursuant to s 91L of the WM Act).

8. The Defendant Mr Harris does not dispute Elements 1, 2 and 5. Mr Harris does dispute that the Prosecutor is able to prove Elements 3 and 4 beyond reasonable doubt.

Summons concerning Timmins

9. The three summonses stating the charges concerning Mr Timmins are in similar terms. The summons in proceedings No 18/238878 is set out:

The prosecutor claims:

1. An order that the Defendant, Justin Timmins of “Mercadool”, Mercadool Road, Walgett, in the State of New South Wales, appear before a Judge of the Court to answer to the charge that on 6 August 2015 at the properties known as Mercadool and Four G at Mercadool Road, Walgett, in the County of Denham, the Parishes of Denuleroi, Pagan, Manilla, Barwon and Terribie in the State of New South Wales (together, Mercadool), the Defendant committed an offence contrary to s 91I(2) of the Water Management Act 2000 (the Act) in that he took water from a water source to which Part 3 of Chapter 3 of the Act applied by means of a metered work while its metering equipment was not operating or not operating properly.

                                                                       Particulars

(a)   Mercadool

The Defendant was the Farm Manager of Mercadool and was responsible for operating all Water Supply Works located at Mercadool at all relevant times.

(b)   Water supply work

The pump identified as “Pump 4” in the photograph annexed to this Summons and marked “Annexure 1” at Mercadool, authorised for use on the Barwon River pursuant to Water Supply Works and Water Use Approval 85WA753317 (Pump 4).

(c)   Metering equipment

Pump 4 had the following metering equipment installed in connection with it:

(i)   engine hour meter; and

(ii)   MACE meter.

(d)   Water source

The Barwon-Darling Unregulated River Water Source is a water source to which Part 3 of Chapter 3 of the Act applies in relation to all approvals other than drainage work approvals, flood work approvals and aquifer interference approvals, as proclaimed in the Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012.

(e)   Taking water

Pump 4 was used to take water from the Barwon-Darling Unregulated River Water Source on 6 August 2015.

(f)   Metering equipment not operating properly or not operating

At the time Pump 4 was used to take water as specified in sub-paragraph (e) above:

(i)   the engine hour meter was not working properly; and

(ii)   the MACE meter was not working altogether.

2.   An order that the Defendant be dealt with according to law for the commission of the above offence.

3.   An order that the Defendant pay the Prosecutor's costs.

4.   Such orders as the Court in its discretion sees fit to make.

10. Photographs attached to the summons show pumps labelled Pumps 1, 2, 3, 4 and 5. Pumps 3, 4 and 5 are on a raised platform.

11. In the case against Mr Timmins the elements which the Prosecutor must prove beyond reasonable doubt are as follows:

Element 1:	The Defendant took water from the Barwon River
Element 2:	From a water source to which Pt 3 of Ch 3 of the WM Act applied
Element 3:	By means of a metered work
Element 4:	While its metering equipment was not operating properly or not operating

12. The Defendant Mr Timmins does not dispute Elements 1 and 2. He does dispute that the Prosecutor is able to prove Elements 3 and 4 beyond reasonable doubt.

Evidence of Prosecutor

Certificates of evidence

13. The Prosecutor tendered identical certificates of evidence of Ms Kirsty Ruddock dated 17 May 2019, in all matters (Exhibit A). The certificates were issued pursuant to s 367 of the WM Act and s 11(1)(e) of the Natural Resources Access Regulator Act 2017 (NSW). The certificates referred to factual matters relevant to s 367(1)(a) and (c), and (2)(g), (h), (k), (o) and (s2) of the WM Act, being matters admissible in any legal proceedings as evidence of the fact or facts so stated (set out above in [3]).

14. The Water Management (Application of Act to Certain Water Sources) Proclamation (No 2) 2012 (NSW) (the Proclamation) annexed to the certificates was made on 3 October 2012 (per s 367(1)(a), that an instrument purporting to be issued, made or given for the purposes of the WM Act was issued, made or given on a specified day).

15. From 4 October 2012 to the date the certificates were made, Pt 3 of Ch 3 of the WM Act applied to the Barwon-Darling Unregulated River Water Source as shown on Plan Map WSP022_Version 1, annexed to the certificates (per s 367(2)(s2), that Pt 2 or 3 of Ch 3 of the WM Act does, or does not, apply to a specified water source or part of a specified water source).

16. A satellite image annexed to the certificates depicted Mercadool consisting of various lots including Lot 32 (per s 367(1)(c). That image, a copy of which is set out in or annexed to the certificate, is a photograph or other remotely-sensed image of a specified kind, and portrays specified land as at a specified date). In the period 6-8 August 2015, Pumps 3, 4 and 5 were located at GPS coordinates – 29.771836, 148.375228 on Lot 32 (per s 367(2)(g), that a specified water management work was, or was not, at a specified location with a specified parcel of land).

17. Mr Zachary Blackwood and Mr Jason Curry were authorised officers in relation to the WM Act generally, including ss 338B, 338C, 339 and 339B, from 10 July 2014 until 20 August 2015. Mr Paul O’Neill was an authorised officer in relation to the WM Act generally, including s 338A, from September 2017 until 31 March 2019 (per s 367(2)(k), that a specified person was, or was not, an authorised officer in relation to a specified provision of the WM Act).

18. In the period 6-8 August 2015, Pumps 3, 4 and 5 identified in photographs annexed to the certificates were the subject of Water Supply Works Approval 85WA753317 (Water Supply Works Approval) (per s 367(2)(h), that a specified water management work was, or was not, the subject of a specified water management work approval). The Water Supply Works Approval was in force in the period 6-8 August 2015 inclusive (per s 367(2)(o), that a specified access licence or approval was, or was not, in force).

Trevor Pearce

19. The Prosecutor read the affidavit of Mr Trevor Pearce affirmed 17 May 2019. Mr Pearce was employed by WaterNSW and its predecessors between 1987 and October 2017 in roles involving checking and recording water meter readings. Mr Pearce said he conducted a round of meter readings in the Barwon-Darling river system between June and August and a second round between January and February each year. Throughout his career Mr Pearce has read and used various meters including MACE meters. In his experience the meters used most commonly in the Barwon-Darling river system were MACE Series II and MACE Series III meters. Mr Pearce described MACE meters as a type of ultrasonic flow (or “doppler”) meter which measures the velocity of water movement with ultrasonic beams to calculate volume of flow.

20. Mr Pearce said an alternative type of meter found in the Barwon-Darling river system was an engine hour meter. The reading on an engine hour meter ticks over each time a pump’s motor is switched on. Engine hour meters usually measure time in six minute increments and are used to provide an indication to the owners of how long a pump has been operational for. Mr Pearce said he has been reading engine hour meters for over 30 years.

21. Mr Pearce described his meter reading trips to the Barwon-Darling river region during which he would drive to the relevant pumps on each property, manually record in his diary the engine hours of the diesel motor recorded on the engine hour meter located on each pump (or kilowatt hours for electric motors), and the number of megalitres displayed on the MACE meter as having been extracted by each pump. When possible, he would download the MACE data onto his laptop. Mr Pearce said he would replace batteries on MACE Series II meters if required. Mr Pearce maintained a diary for the purpose of recording meter data for each water year. His usual practice when making observations and recording readings at properties was to refer to previous diary entries for previous visits to check against previous meter readings.

22. Regarding Mercadool, Mr Pearce said he attended Mercadool from 2009 until his retirement. On 6 August 2015 Mr Pearce attended Mercadool as part of his meter reading trip to the Barwon-Darling river region. Mr Pearce described the location of Pumps 3, 4 and 5 as being located on a raised platform on the left bank of the Barwon River when looking downstream, less than 50 metres downstream from Pumps 1 and 2. Mr Pearce said three MACE meters were located on the platform. Pumps 3, 4 and 5 each had mechanical (analogue) engine hour meters on the motors. During his inspection on 6 August 2015 Mr Pearce drove straight to Pumps 3, 4 and 5 and could immediately see and hear that they were all running and extracting water from the Barwon River. The MACE meters installed on the pumps were affixed to the structural support posts for the roof of the platform, with each meter affixed to the support post closest to its corresponding pump. Mr Pearce attempted to take readings from these meters by looking at the screen of the meter and pressing the silver button on the meter to scroll between flow rate and totaliser. Mr Pearce said that none of the MACE meters were working properly. When he inspected them, the MACE meters displayed the following:

1. Pump 3: Flow Rate = “No Flo”; Totaliser = “0.0” (taken to mean 0.0ML).

2. Pump 4: Flow Rate = the screen was completely blank; Totaliser = the screen was completely blank.

3. Pump 5: Flow Rate = “No Flo”; Totaliser = “111.4” (taken to mean 111.4ML).

23. Mr Pearce inspected the MACE meters a number of times to check whether the data was changing. He saw that the numerical figure shown as the totaliser readings for Pumps 3 and 5 were not increasing at all during his visit, despite the fact that water was being extracted by those pumps. The MACE meter installed on Pump 4 did not show any totaliser reading.

24. Mr Pearce took readings from the engine hour meters located in the control panel attached to the motor and noted the results in his diary as follows:

1. Pump 3: 5989.0 hours

2. Pump 4: 4250.4 hours

3. Pump 5: 4384.1 hours

25. Mr Pearce said his usual practice was to refer to the engine hours recorded during his previous visit to calculate how long the engine had been operational in the time between visits. After checking his diary entry for his last visit on 26 February 2015, Mr Pearce realised the engine hours for Pumps 3 and 5 had not moved since last inspection. The engine hour meter for Pump 4 had only moved from 4250.2 hours on 26 February 2015 to 4250.4 hours on 6 August 2015, meaning approximately 12 minutes.

26. Mr Pearce said his usual practice would be to check whether an engine hour meter is moving. Mr Pearce did not recall seeing the engine hour meter for Pump 4 move that day. If it had moved, he probably would have made a notation in his diary to that effect. It appeared that the engine hour meter for Pump 4 was not working properly and that the engine hour meters for Pumps 3 and 5 were not working at all. After taking meter readings from the pumps Mr Pearce took photographs of Pumps 3, 4 and 5. As he was unwell, he left Mercadool and went to Walgett Hospital with suspected food poisoning. Mr Pearce arrived at Mercadool at approximately 9:00am and arrived at Walgett Hospital at approximately 11:00am.

27. In cross-examining Mr Pearce, the Defendants referred to a bundle of documents that became Exhibit 2. This bundle consisted of: a document titled “NSW Water Metering Scheme – Murray Pilot” issued by the NSW Office of Water; an email from Richard Cooke, senior hydrologist at the NSW Office of Water, to Mr Pearce advising him that the NSW Office of Water would no longer be supporting or requiring secondary MACE meters be installed in the Barwon-Darling river system; minutes of the general meeting of the Barwon-Darling River Council dated 17 July 2013; and minutes of the general meeting of the Barwon-Darling River Council dated 19 March 2014.

28. In cross-examination, Mr Pearce agreed that he would visit 30 to 40 properties in the Barwon-Darling river system twice a year from 2009 onwards, and on top of that an additional 60 properties in other locations up to six to eight times a year. When asked how many properties he visited each day, Mr Pearce said it would depend on how far he needed to travel. He agreed that on some days he would see a few properties and on other days he would see a lot more. He agreed that at a large number of those properties he would look at more than one meter.

29. Mr Pearce agreed that he kept a diary because he appreciated that he would not be able to remember the information he observed just by looking and storing it in his head.

30. Regarding his visit to Mercadool in 2015, Mr Pearce agreed that he remembered the visit vividly because he was sick that day. Mr Pearce confirmed he was sick when he arrived at the property and his illness worsened. Mr Pearce confirmed that within half an hour he felt so unwell that he wanted to go to hospital. He said he finished what he was doing at Mercadool before leaving the property. It was put to him that he did not remember the details of the inspection any more than any other inspection, which he agreed to. He agreed to an extent that it was not possible for him to actually remember what he did on any particular visit to any particular property.

31. Mr Pearce agreed that he recorded in his diary the engine hours from engine hour meters located on panels at Mercadool. He agreed that he could not actually remember the numbers and that the numbers in his affidavit were taken from his diary.

32. Mr Pearce was shown a photograph taken by Mr Blackwood on 19 August 2015 of an engine hour meter (at tab 4 of Exhibit ZB-1 to the affidavit of Mr Blackwood), reproduced below:

33. Mr Pearce agreed this was a photograph of an engine hour meter and that this was what the engine hour meters looked like on the day of his inspection in August 2015. Mr Pearce agreed that when he talked about engine hours meters in his affidavit, he was referring to the type of meter depicted in the photograph. He agreed that the engine hour meters he looked at in August 2015 had circular faces with numbers on them, and that when he referred to whether the engine hour meter was “moving” or not, he meant whether the numbers displayed below the word “QUARTZ” were ticking forward or not.

34. Mr Pearce was then shown a photograph taken by Mr Blackwood on 19 August 2015 of a MACE meter (at tab 4 of Exhibit ZB-1 to the affidavit of Mr Blackwood). That photo is reproduced below:

35. Mr Pearce agreed this photograph depicted the housing box of a MACE meter. He agreed that when he said the pumps had MACE meters installed on them, he meant he saw three boxes fitted to the posts that were holding up the roof of the pump platform for Pumps 3, 4 and 5. Mr Pearce agreed that he pressed the silver button as shown in the photograph and saw on the display panel of each box the results he described in his affidavit (see [22] above), as recorded in his diary.

36. Mr Pearce was shown an email from Mr Richard Cook dated 5 December 2011 (p 3, Exhibit 2). Mr Pearce agreed that he was told in this email that WaterNSW would no longer be supporting or requiring secondary MACE meters be installed in the Barwon-Darling river system. He agreed that this was publicly announced, including to the Barwon-Darling Water Council. Mr Pearce agreed that the announcement came after a period in which a growing number of complaints and reports from farmers using the river system were coming in, to the effect that the MACE meters were unreliable and did not work.

37. When shown the document titled “NSW Water Metering Scheme – Murray Pilot” (p 1, Exhibit 2), Mr Pearce confirmed he was aware of the initiative for new national standards for water meters and water data collection systems. Mr Pearce confirmed he was aware of the “Murray pilot project” in which 1,200 water meters would be replaced, as a precursor to rolling out the metering scheme in the Murray-Darling Basin.

38. Mr Pearce did not agree that in 2011 there were a large number of sites with existing meters that were not compliant. He did not know whether the new meters were to be rolled out to replace existing meters regarded by the government as being non-compliant.

39. Having been shown the minutes of the Barwon-Darling River Council dated 17 July 2013 (pp 4-8, Exhibit 2), Mr Pearce confirmed that he was aware as at July 2013 that the rollout of compliant meters had not occurred and that people were still complaining about the MACE meters not working properly or at all. Mr Pearce did not agree that WaterNSW had a maintenance contract; rather, he said he was instructed by WaterNSW that the onus was on the irrigators to maintain their water meters. Mr Pearce agreed that there was “to-ing and fro-ing” about whose fault it was that the MACE meters were not working properly, adding that the onus was on irrigators to make sure that their meter was in good order and repair.

35. Having been shown the minutes of the Barwon-Darling River Council dated 19 March 2014 (pp 9-14, Exhibit 2), Mr Pearce said he did not remember that meters had been installed by the NSW Office of Water and State Water in a pilot project in the Murray and Murrumbidgee Rivers. Mr Pearce said he was not aware that whoever was to supply the meters in the rollout project would be responsible for their maintenance. He agreed that the position in 2014 was that there had not been a rollout of the new metering system. Mr Pearce did not agree that there was an ongoing dispute between the NSW Department of Primary Industries (Water) (Department) and the farmers about who was responsible for maintaining the MACE meters. He said State Water took the view that he was not responsible for maintaining the MACE meters. He agreed that some farmers were arguing for the Department to maintain the meters. He agreed that this dispute was going on whilst the government was publishing the fact that there would be a rollout of a new and compliant metering system.

Zachary Blackwood

41. The Prosecutor read the affidavit of Mr Blackwood affirmed 29 June 2020. Mr Blackwood commenced employment as an Investigator with the Department on 10 July 2014 and was an authorised officer under s 390(1) of the WM Act from that date and at the time of the alleged offences.

42. On 17 August 2015 Mr Blackwood was requested to undertake a site inspection with another investigator, Mr Curry of Mercadool. Mr Blackwood and Mr Curry attended the properties on 19 August 2015. Mr Blackwood inspected three pumps located on a platform adjacent to the Barwon River. None of the pumps were operating at that time. Mr Blackwood saw a MACE meter located near each pump in a box attached to a pole in proximity to the pump. He observed that each pump also had an engine hour meter installed on its engine.

43. Mr Blackwood noted in his diary his observations of the readings of each MACE meter and engine hour meter.

3rd Pump:

Mace Meter: 0.0/OFF

Hour Meter: 5898

Second pump:

MACE Meter: 0.0/No Flow

Hour Meter: 4250

First pump:

MACE Meter: 111.4/No Flow

Hour Meter: 4384.1

44. There is no dispute these are Pumps 3, 4 and 5

45. Mr Blackwood observed that the pumps led to channels which led to dams which he saw were full of water. It appeared that water had recently been pumped as the dams were full and the channels were wet. There had not been any change in the meter readings compared to the readings taken by the meter reader on his recent visit. Mr Blackwood said he had spoken to the meter reader earlier that day and had been told those readings over the phone. Mr Blackwood also saw the meter reader’s photographs taken on the meter reader’s visit depicting diesel coming out of the exhaust of the pumps and the meter reader’s written records of his observations.

46. Mr Blackwood said there was a second inspection on 20 August 2015 during which he observed water in various channels.

47. On 2 November 2015 Mr Blackwood drafted and issued to Mr Peter Harris and Mrs Jane Harris (the Harrises) a notice under s 338A of the WM Act regarding the alleged taking of water on 6 August 2015. On or about 25 November 2015 Mr Blackwood received a response from Rhodes Kildea Lawyers to the notice he had issued.

48. Exhibit ZB-1 to the affidavit of Mr Blackwood affirmed 28 June 2020, consisting of various documents, became Exhibit C (except tabs 8 and 9 in all matters and except tabs 10 and 11 in the Timmins matters). A series of photographs at tab 4, taken by Mr Blackwood on 19 and 20 August 2015, showed the MACE meters and engine hour meters on Pumps 3, 4 and 5 (see for example above in [32] and [34]).

49. A “Notice to Provide Information and/or Records” issued to the Harrises by Mr Blackwood annexed at tab 10 included the following questions:

M.   Do any of the pumps marked from 1-5 in “Annexure A” have metering devices installed? If so what metering devices are installed? Please provide meter type, make and model.

N.   Are the meters functioning accurately and in good working order? When was the last time the meters were checked for faults?

O.   Were the meters working properly on 6^th August 2015?

…

Q.   Are you aware that it is a condition of the work approval that the pumps must have installed, a functioning meter and data-logger to accurately record and measure water usage?

50. The response to the Notice to Provide Information and/or Records provided by Rhodes Kildea Lawyers acting for the Harrises annexed at tab 11 provided the following answers:

M.   All of the pumps have Mace Mark 2 meters installed.

N.   All of the meters are functioning accurately and in good working order. They have recently been checked and repaired by our clients’ contractor Mick Allen who is a certified meter installer and is a former employee of the DPI – Water.

O.   No. The meters had been removed for repair sometime prior to the 6 August, 2015. State Water were aware of this arrangement and were in agreement.

…

Q.   Our clients are not aware of this. The meters were installed prior to the 30 June, 2010 and accordingly, pursuant to the grandfathering provisions relating to meters, they currently comply with the Department’s requirements.

51. In cross-examination, Mr Blackwood was shown three photographs. One of these photographs is reproduced below:

52. When asked if he recognised the photographs, Mr Blackwood confirmed they were photographs he took when he inspected Mercadool on 19 August 2015 of the boards associated with Pumps 3, 4 and 5. The three photographs were tendered by the Defendants and marked Exhibit 1.

Additional affidavit evidence

53. The Prosecutor read the affidavit of Mr O’Neill sworn 2 August 2018. Mr O’Neill was appointed as an authorised officer for the purposes of the WM Act on 29 September 2017 and worked as an investigator for the Natural Resources Access Regulator (NRAR) at the time of swearing his affidavit. Since October 2017 Mr O’Neill has been investigating potential breaches of the WM Act at Mercadool. Mr O’Neill described how WaterNSW kept its electronic files.

54. Mr O’Neill deposed that he knew that Mr Blackwood issued a notice pursuant to s 338A(2) of the WM Act to Frank Hadley Pty Ltd on or about 10 September 2015 and that Mr Blackwood received a response on or about 25 September 2015 with a signed lease attached showing the Harrises as lessees of the property. Mr O’Neill said that at the relevant times in respect to these proceedings, Frank Hadley Pty Ltd was the holder of the Water Supply Works Approval.

55. On 22 January 2018 Mr O’Neill issued a notice pursuant to s 338A(2) of the WM Act to Mr Harris requiring the provision of information and records in respect of Mercadool. On 23 January 2018 Mr O’Neill also issued a notice to Mr Timmins. On 24 January 2018 Mr O’Neill also issued a notice to Mr Mick Allen, a certified meter installer who Mr O’Neill understood had been contracted by the Harrises to perform maintenance on meters at Mercadool.

56. The Prosecutor read the affidavit of Mr Andrew Mannall sworn 17 May 2019. Mr Mannall is an authorised officer. In his position of employment as a Senior Investigator with the NRAR Mr Mannall has access to electronic records from the WaterNSW investigation file for Mercadool. Mr Mannall confirmed that Frank Hadley Pty Ltd and Franklin Carrick Hadley were the approval holders for the Water Supply Works Approval as at 24 April 2015. The Water Supply Works Approval was annexed to the affidavit and the relevant section is set out below:

Work 2

660MM AXIAL FLOW PUMP x 5

32//752231 Whole Lot

COLLARENEBRI TO UPSTREAM WALGETT WEIR POOL MANAGEMENT ZONE

BARWON DARLING UNREGULATED RIVER WATER SOURCE

BARWON DARLING UNREGULATED AND ALLUVIAL WATER SOURCES

57. The Prosecutor read a second affidavit of Mr Mannall sworn 25 June 2020. Mr Mannall described searches he conducted concerning Lot 32 DP 752231 (Lot 32) including historic title and land searches.

Certified land dealings

58. The Prosecutor tendered copies of public documents certified by the Registrar General for NSW pursuant to s 156 of the Evidence Act 1995 (NSW) relating to land dealings at Mercadool. The documents were tendered in both the Harris and Timmins matters and were marked as Exhibit B. A lease commencing 15 May 2009 and ending 15 June 2013 showed Frank Hadley Pty Ltd as lessor and the Harrises as joint tenancy lessees. A variation of lease increased the lease term to expire on 7 August 2014. A further variation of lease increased the lease term to expire on 7 August 2015. A Transfer dated 28 September 2015 showed the transfer of the property from Frank Hadley Pty Ltd to the Harrises as tenants in common.

Evidence of Defendants

Timmins affidavit

59. The Defendants read the affidavit of Mr Timmins affirmed 14 July 2020 (MFI-2) set out in full as follows (annexures omitted):

I affirm:

1   I make this affidavit on the basis of my direct knowledge unless I state otherwise. Where I make statements on the basis of information provided to me, that information is true to the best of my knowledge and belief and I state the source of that information.

Background

2   I am 36 years of age.

3   I am a qualified diesel mechanic and worked from 2001 to 2007 for a Case IH and John Deere dealer in Walgett, NSW.

4   I commenced work at Mercadool in 2007 and have 13 years of experience as working as the Farm Manager at Mercadool.

5   My responsibilities as Farm Manager included responsibility for the irrigation and pumping of water from 17 pumping sites on the property. It is my role to turn on the pumps at Mercadool.

Meters used on Mercadool - Pumps 3, 4 and 5

6   Pumps 3, 4 and 5 are Cummins pump engines which are sited on the Barwon River.

7   From 2007 to July 2015, engine hour meters were recorded by an analog meter on the Murphy box for each pump. A Murphy box is a box which has fitted into it various dials, switches and devices, with holes being cut into the top face of the box to suit the shape of what is being inserted into it, with the wiring for those items underneath and away from the box. The face of a Murphy box has a perspex cover over it. ln order to install whatever appears on the face of Murphy board to whatever equipment it is to be associated with, there needs to be wiring and cables between the object on the board and the equipment in question.

8   To my observation, there were also MACE Meter boxes fixed on to vertical posts on the pumping platform.

9   Before about 2009 I used to look at information recorded on the MACE meters from time to time relating to the flow of water through the discharge pipes. However my experience with using these meters was so bad that, by about 2009, I did not use them in making any assessment about the flow or amount of water taken using the pumps or how long they had been operating for. I thought they were completely unreliable. By this I mean that I observed there was no display on the front of the panel at all, or it would be stating something that I thought could not be correct.

10   These problems with the MACE meters became worse and worse over time in the years leading up to and including 2009. I did not know of any way in which the meters could be repaired, and from the end of 2011 I understood that the Department of Water would not be supporting or requiring farmers in the Barwon­ Darling system to use MACE meters and that there was going to be a roll out of new meters by the government which were of a standard that the government considered acceptable.

New engine hour meters

11   In about July 2015 I decided to replace the existing analog engine hour meters with new digital engine hour meters, and to get new tachometers fitted to each of the Murphy boxes for the pumps at Mercadool. I discussed this with Mr Pearce at the time. A tachometer is an instrument that can measure the rotation of a disk or shaft, usually in terms of the number of time [sic] it revolves around in a minute.

12   In late July 2015, I met with Brock Murcum, an electrical engineer at Mercadool, and I showed him the pumps 3, 4 and 5 on Mercadool as well as other pumps and engines. Prior to meeting him at the property on that day, I had contacted him and said to him words to the effect of "Can you please replace the engine hour meters with some new ones and also install some new tachos?" Brock said to me words to the effect of "Yes, I can give you a tacho that also records engine hours".

13   After that conversation, Brock came to Mercadool, and I saw him installing new tachometers that recorded the number of revolutions per minute by way of a needle on a dial, and digitally recorded the engine hours on an LCD display inside the same circular face. I did not stay with Brock for the whole time he did the work, but instead would come and go based on how long he said he would take to do each task. I was there when he started installing each new meter, and also towards the end of the installation of each new meter.

14   Before Brock started work I said to him words to the effect of “Can you make sure that each of the new meters are wired to the Murphy switch.” A Murphy switch is a switch that will disengage the engine for safety reasons, such as where there is a detected oil problem or the engine overheats. I said this because I wanted to ensure that if the pump stopped operating if the Murphy switch went off, the engine hours being recorded by the new meters would also stop at this time.

15   I also discussed with Brock at the time leaving in the analog faces as he asked if I had plugs to fit in the board if he removed the faces. I said words to the effect of "Can you just leave the gauges for the old meters in there?". Brock told me he would.

16   After the new digital engine hour meters were installed, Brock turned on the engine for each pump and gave me a demonstration of the new meters in operation. I saw that when the engine was engaged to make the pumps work, the needle on the tacho component of the new meter rose up to signal the revs, and the time for engine hours started to tick over. With each new meter, I watched as Brock adjusted the tacho dial so that it corresponded with the correct RPM of the engine.

17   A tax invoice for the work at Mercadool and addressed to P & J Harris & Sons. Annexed to this affidavit and marked "A" is a copy of invoice dated 31 July 2015.

18   I have been shown photographs which I am informed were taken on 19 August 2015 by DPI Water Investigators. I can recognise that these photographs show the Murphy boards for the 3 pumps. This was what the boards looked like on 6 August 2015. Annexed to this affidavit and marked "B" is a copy of those photographs. [Photographs not replicated in judgment, same as photographs in Exhibit 1]. The face of the digital meters are the large circular objects located on the left hand side of these photographs. In these photographs the ignition is off. I can see that the needle pointing to the revolutions per minute is pointing - to my observation of the way this meter works, when the ignition is turned off the needle does not return to zero. This only happens the next time the ignition is turned on.

19   ln these same photographs the display face of the old analog meters is at the bottom left of the four circular items which appear on the right hand side of each picture.

20   Earlier this year I took a video of the Murphy board for pump 5 once the ignition was turned on in order to demonstrate what occurs when this happens. A USB stick containing a copy of that video is annexed and marked “C”.

Meters used on Mercadool in August 2015

21   I do not now have a specific recollection of turning on pumps 3, 4 and 5 in early August 2015.

22   It is my practice to check the engine hours prior to pumping as I may select the pump with the most time before a service is due.

23   When I turn on the pumps, it is my practice to check that it is operating correctly. I would have noticed if the engine hours were not being displayed when the pump engine was engaged. I would have remembered if the digital engine hour meter was not working when the pumps were running in August 2015, as that would have been very surprising to me given that I had only recently arranged for them to be installed and had seen them working when they were installed. I would not have looked at the old engine hour dials that were still on the Murphy Board because I had given an instruction for them to be replaced with the new digital engine hour meters, and was operating on the basis that the old meters were no longer connected and would not work once the digital meters were installed in July 2015. did not inspect or use any of the information on the display face of the old meters following July 2015.

24   I am familiar with the component parts of a MACE meter. A MACE meter includes a housing box which contains a display face and other electronics within it, battery and solar power systems, a sensor located in the discharge pipe through which the water travels after it is pumped, and a cable between the inside of the housing box and sensor. The socket inside the housing box to which the cable connects is located up inside the box itself, and not at the edge of the box, so that to connect it you need to open the box up and push the cable into the socket. The cable is housed inside a white poly-pipe as it travels up the pole and to the base of the box.

25   I do not have any recollection as to the location of the components of the MACE meters as at 6 August 2015. I do recall that, prior to installing the new engine hour meters, I met someone called Mick Allen at the pump site at Mercadool. I had been told by Peter Harris that Mr Allen was coming to seek if he could fix the MACE meters, and to meet him on site.

26   I saw Mr Allen on site at the pumping platform at Mercadool on a number of occasions both before and after the new engine meters were installed. I saw him opening up the MACE housing boxes for pumps 3, 4 and 5, taking things out and putting things in. At times he appeared to me to be taking things out of the inside of one box and put [sic] them in another. On some occasions he would take a box away, and come back with the box some time later. When he returned with a box he would reattach it to a pole and see if it worked. I recall that there were times that, after appearing to move parts from the boxes from one to the other or after returning a box and reattaching it, I looked at the MACE meters and saw they were not working, and Mr Allen would then appear to do more things to the inside of the box and say to me that he had not been able to fix the problems and would need to come back another day.

27   During this period of activity with Mr Allen, which began before the new engine hour meters were installed and continued on for some months, I continued to treat the MACE meters as I had since 2009. I understood that the MACE meters continued to be completely unreliable and as a result I did not use them to make any assessment about the flow or amount of water taken using the pumps or how long they had been operating for. I had overseen the installation of the new engine hour meters and was only using them at the time, and nothing else.

28   I was not made aware that there was any issue concerning the take of water in August 2015 until I was served with a notice from WaterNSW in early 2018, and since then I have not been asked to provide a statement or be interviewed about what happened in August 2015. Since early 20181 have sought and obtained legal advice in relation to this matter and how I should respond to action taken by WaterNSW, and the content of that advice is privileged.

Documentary evidence

60. The Defendants tendered Exhibit 1, photographs referred to in cross-examination of Mr Blackwood (above in [51]) and Exhibit 2, a bundle of documents referred to in cross-examination of Mr Pearce (above in [27]).

61. The Defendants also tendered a bundle of emails exchanged between Mr Ian Cole, Chairman of Darling River Food & Fibre, and Mr Paul Pendlebury, NSW Office of Water, in July 2011 regarding the Barwon-Darling metering project (Exhibit 3).

Element 1: water was taken (Harris) / the Defendant took water (Timmins)

62. At the date of the alleged offence the Harrises held a lease from Frank Hadley Pty Ltd in respect of land comprising Lot 32 (Land Titles search: CB tabs 26-1 and 26-2 (Affidavit, Andrew Mannall, 25 June 2020, tab 1 of Ex AJM-1), see also: CB tabs 27-30 (Ex B)). Lot 32 forms part of Mercadool (certificate of Kirsty Ruddock, 17 May 2019 at par 3: CB tab 10 (Ex A)). The water supply works relevant to the charges (known as Pumps 3, 4 and 5) were located within Lot 32 at all relevant times (certificate, Kirsty Ruddock,17 May 2019 at par 6: CB tab 10 (Ex A)).

63. It is the Prosecutor’s case that on the dates relevant to the charge against him (being 6-8 August 2015 inclusive), Mr Harris occupied Mercadool – relevantly including Lot 32 – pursuant to the terms of his lease and had full and exclusive use of the water supply works located on that property (as outlined below). He also operated and was involved in the management of the farming business undertaken at Mercadool during that period (Item A in notice response: CB tab 17-11 and answer at 1.3(a) in notice response: CB tab 20-T (both of which are only in evidence against Mr Harris). Mr Harris’ occupation is also dealt with more extensively in relation to Element 5 in [80]-[81] below.

64. As at 6 August 2015 Mr Timmins was the farm manager at Mercadool (Mr Timmins’ response to statutory notice at 1.2(b): CB tab 20-V / at 1.3(b) CB tab 20-T). As at 6 August 2015, Mr Timmins has conceded that he operated the water supply works on Mercadool – including Lot 32 – and was responsible for the taking and/or the authorising and directing of the taking of water on that property (Mr Timmins’ response to statutory notice at 1.2(b) and (d): CB tab 20-V (only in evidence against Mr Timmins); being consistent with Mr Harris’ responses at Items B and I-L:CB tab 17-11 and at 1.3: CB tab 20-T) (both of which are in evidence only against Mr Harris)).

Water supply works at Mercadool

65. Mercadool is located approximately 45 kilometres north-east of Walgett, in the Barwon-Darling river system catchment in far north-west NSW and was used for the production of “irrigated cash crops” (Affidavit, Trevor Pearceat par 24: CB tab 12; response to statutory notice by Mr Harris at Item C: CB Tab 17-11). The Barwon River borders Lot 32 on which the water supply works relevant to the charges were located (Affidavit, Trevor Pearce at par 30: CB tab 12; see also map attached to certificate Kirsty Ruddock: CB tab 10).

66. During the charge periods, the Water Supply Works Approval was held in the name Frank Hadley Pty Ltd and Franklin Carrick Hadley (Water Supply Works Approval: CB tab 23-A (Affidavit Andrew Mannall)). It relevantly authorised the construction and use of five 660 millimetre axial flow pumps on Lot 32 with respect to the Barwon-Darling unregulated river water source, subject to the conditions of the approval. Those conditions included requirements regarding the use, construction and maintenance of the water supply works (such as use in a safe and proper manner). Pumps 3, 4 and 5 were among the five pumps authorised in “Work 2” of Sch 2 to the Water Supply Works Approval with respect to Lot 32 (Water Supply Works Approval: CB tab 23-A).

67. That Pumps 3, 4 and 5 are those present on Lot 32 and referred to in the Water Supply Works Approval is established by:

1. The certificate which attests to the location of the “Pumps 3, 4 and 5” as being on Lot 32 and identifies them as those in the Water Supply Works Approval (certificate, Kirsty Ruddock, 17 May 2019 at pars 5-6 and Annexure 4: CB tab 10 (Ex A)).

2. Mr Blackwood’s evidence as to the location of the pump site, by reference to a map which he prepared based on GPS coordinates he took while standing at Pumps 3, 4 and 5 and his description of the three pumps as having been on a platform, which he photographed (that photograph making clear that the three pumps he was observing are the same as those referred to in the certificate) (Affidavit, Zachary Blackwood at pars 12, 14 (including photo at tab 17-2), 29, 44, 51: CB tab 15).

3. Mr Pearce's evidence as the location of Pumps 3, 4 and 5 in respect of which he took meter readings as being on a raised platform on the left bank of the Barwon River when looking downstream, the precise location of which he identified on a map (consistent with Mr Blackwood's identification of the location and description of the pumps) (Affidavit, Trevor Pearce at pars 25-26, 30, Annexure B map: CB tab 12).

4. The identical readings taken by Mr Blackwood and Mr Pearce from the engine hour meters on the pumps, which demonstrates that their evidence relates to the same three works.

5. In the case against Mr Harris only, the answer given at “F” in his “Statutory Notice response” provided on 25 November 2015 (CB tab 17-11 (when read in conjunction with notice at CB tab 17-10) (in evidence only against Mr Harris)).

Water was taken on 6 August 2015 (and on 7-8 August 2015 in the case against Mr Harris)

68. Proof that water was taken by means of the water supply work on 6 August 2015 is based on the direct observations of Mr Pearce, a WaterNSW customer field officer.

69. On 6 August 2015, Mr Pearce attended Mercadool for the purpose of reading the meters at the property and thus monitoring the extraction of water from the Barwon-Darling unregulated river water source (namely, Barwon River). Mr Pearce arrived at Mercadool at around 9.00am.

70. Mr Pearce gave evidence that he inspected five pumps, including three pumps located together on a raised platform known as Pumps 3, 4 and 5 (Affidavit, Trevor Pearce at par 30: CB tab 12). Mr Pearce identified the location of what he described as Pumps 3, 4 and 5 by reference to a map which shows that they were located on Lot 32 (Annexure B: CB p 176).

71. Mr Pearce’s evidence establishes that between his arrival and departure from the pump site on 6 August 2015, Pumps 3, 4 and 5 were running and extracting water from the Barwon River (Affidavit, Trevor Pearce at pars 31, 35, 39: CB tab 12). He heard the pumps’ motors running, saw exhaust fumes coming from their exhaust pipes and saw water being discharged into a channel. Mr Pearce took photographs during the visit and recorded his observations contemporaneously in his diary. His evidence should satisfy the Court to the criminal standard in respect of all charges that water was taken on 6 August 2015.

72. As against Mr Harris, the Prosecutor also relies upon admissions he made through his solicitors in response to a statutory notice, namely that “3 of the 5 pumps were in use for part of the 6 August, all of the 7 August and all of the 8 August” (response to statutory notice dated 25 November 2015: CB tab 17-11). The Court should only use that admission if satisfied that it was made by the Defendant Mr Harris and is reliable. The admission could only have been made by Mr Harris as the statutory notice in question (November 2015) was issued to him and his wife, but according to the response Mrs Harris had no apparent involvement in the business. The weight to be given to an admission is a matter for the Court, however, the fact it is against interest clearly requires that it be given weight (that it should be given more weight than an exculpatory statement is a “statement of the obvious” Mule v R (2005) 221 ALR 85; [2005] HCA 49 at [21]). Moreover, the admission is reliable given that:

• It is consistent with Mr Pearce’s observations on 6 August 2015.

• It was carefully considered, having been made in writing.

• It was made through a lawyer (the Court would readily find that an admission made by legal advisors on behalf of their client is an admission made under authority under s 87(1)(a) or (b): Trade Practices Commission v TNT Management Pty Limited (1984) 56 ALR 647 at 663; Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314; [2008] FCA 369 at [18] per Rares J; The Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [19] per Bathurst CJ with whom Beazley and McColl JJA agreed.).

• There is no ambiguity in the language used in the admission, the Defendant having carefully considered whether the pumps were used for only part or the whole of the days in question and where the water was directed (“the water pumped was placed into storage”).

73. The Prosecutor submits that the admission about use of water on 7 and 8 August 2015 proves beyond reasonable doubt in the case against Mr Harris that water was also taken on those dates.

74. In the case against Mr Timmins, the Prosecutor must establish not only that water was taken on Lot 32 on 6 August 2015 but also that the water was taken by him. To establish this the Prosecutor relies upon Mr Timmins’ admission that he was the person responsible for taking and/or authorising and directing the taking of water at the property at the relevant time (response to statutory notice by Mr Timmins: CB tab 20-V, read with statutory notice at tab 20Q). ln the absence of any evidence to the contrary, the inescapable inference is that he was responsible for and/or directed the taking of water on this occasion.

75. As already identified, the Defendants did not make any submissions to contradict the Prosecutor’s submissions. The Prosecutor has established Element 1 in all the offences for both Defendants beyond reasonable doubt based on the evidence outlined above.

Element 2: water was taken from a water source to which Pt 3 of Ch 3 of the Water Management Act 2000 (NSW) applied

76. Section 88A of the WM Act provides (and provided at the time of the offence) that Pt 3 of Ch 3 of the WM Act applies to “(a) each part of the State or each water source; and (b) each type or kind of approval that relates to that part of the State or that water source, that is declared by proclamation to be a part of the State or water source, and type or kind of approval, to which this Part applies”.

77. On 3 October 2012, the Proclamation was made (certificate, Kirsty Ruddock dated 17 May 2019 at par 1: CB tab 10; Proclamation: CB tab 9). Clause 3 of the Proclamation applied Pt 3 of Ch 3 of the WM Act to the Barwon-Darling unregulated river water source in relation to all approvals, other than drainage work approvals, flood work approvals and aquifer interference approvals, from 4 October 2012. None of those exceptions (being terms defined in the WM Act and addressed in ss 89-91) apply to the Water Supply Works Approval or Pumps 3, 4 or 5. It is also uncontroversial that the Barwon River forms part of the Barwon-Darling unregulated river water source.

78. Schedule 2 of the Water Supply Works Approval expressly identified the Barwon-Darling unregulated river water source as the water source to which the approval given in respect of Work 2 related.

79. As already identified the Defendants did not make any submissions to contradict the Prosecutor’s submissions on Element 2. The Prosecutor has established Element 2 in all the offences for both Defendants beyond reasonable doubt.

Element 5: occupation for proceedings nos 18/238837, 18/238838, 18/238829 (Harris)

80. The Prosecutor relies on the following circumstances to prove that Mr Harris occupied the land on which Pumps 3, 4 and 5 were located, pursuant to s 91L of the WM Act:

1. He was the lessee of Lot 32 during the charge period. In 2009 Frank Hadley Pty Ltd granted the Harrises a lease for a period of four years expiring 15 June 2013 in respect of lands listed in a schedule to the lease, including Lot 32 (registered lease: CB tab 27). The lease was later varied to increase the term to five years and 84 days expiring 7 August 2014 (registered variation to lease: CB tab 28). The lease was the subject of a second variation on 11 August 2014, by which it was varied to provide a term of six years two months and 23 days so as to expire on 7 August 2015, which happens to be in the middle of the charge period (registered variation to lease: CB tab 29). The lessees purchased the property (as tenants in common) pursuant to a registered transfer dated 28 September 2015 (registered transfer: CB tab 30). Mr Harris became registered proprietor (with Mrs Harris) on 2 November 2015 (Land Titles search: CB tabs 26-1 and 26-2 (Affidavit, Andrew Mannall, 25 June 2020, tabs 1 and 2 of Ex AJM-1); CB tab 20-C (Affidavit, Paul O’Neill, 2 August 2018, tab C of Ex Mercadool-1)). There is an irresistible inference that he held over the lease until the date of purchase (Mr Harris’ responses to statutory notices issued to him in 2015 and 2018 also support this inference).

2. Mr Harris, as lessee, held water rights authorising him to use pumps on Lot 32 for irrigation purposes on the property. By cl 11.1 of the lease, the lessees took the benefit of the “Water Rights” pursuant to which allocations of water attached to and benefited the land from year to year (CB p 517). Water Rights was defined in cl 1.1 (CB p 508) as including, relevantly, any approvals associated with the water licences which attached to or benefited the land issued by any relevant authority (“Land” included Lot 32 and all the lands listed in the schedule to the lease, by reference to the definition in cl 1.1 and Item 3 of the schedule). The Water Rights granted under the lease thus included the Water Supply Works Approval authorising use of water supply works, including Pumps 3, 4 and 5 on Lot 32 (Affidavit, Andrew Mannall, 17 May 2019 Annexure A: CB tab 23A).

3. In response to a statutory notice, an admission was made by Mr Harris that he was occupier of Mercadool comprising parcels of land including Lot 32 during a timeframe including the charge period (response to statutory notice: CB 20-T par 1.3(a); read with notice at CB tab 20-0). The statutory notice asked for “details of the conduct of the business during the 2014/2015 and 2015/2016 water years and currently including the identity of the Occupier of the Premises”. The answer given was “Peter Harris” (response to statutory notice: CB tab 20-T).

4. Admissions were also made by Mr Harris in response to a statutory notice that during the 2015/2016 water year:

1. he undertook management of the business at MercadooI (response to statutory notice at par 1.3(c): CB tab 20-T);

2. water supply works were located at the premises (response to statutory notice at par 1.2(a)(i): CB tab 20-T; read with notice at par 1.2: CB tab 20-O pp 378-379);

3. the pumps were used on 6-8 August 2015 and on 15-17 September 2015 (the latter being dates before his purchase of the land) (statutory notice 2 November 2015 and response 25 November 2015 at Items G and H: CB tabs 17-10 and 17-11);

4. Mr Timmins was responsible for operating pumps on 6 August 2015, which demonstrates Mr Harris’ knowledge of how the property was used (response to statutory notice 25 November 2015: CB tab 17-11, items and B).

81. Further, Statement of Approval 85UA753339 (CB tab 23-D) authorised the holder to use water for irrigation purposes on specified parcels of land (falling within the lease) (being Lots commencing 101, 34, 36, 35 and 102: CB p 526). Mr Harris thus had the benefit of an approval authorising him to use water extracted (by means of Pumps 3, 4, and 5) from the Barwon River for irrigation purposes.

82. The above circumstances establish beyond reasonable doubt that Mr Harris occupied the property during the charge period for the purposes of s 91L of the WM Act. Moreover, that as lessees and occupiers of the land, the Defendant and Mrs Harris had full and exclusive use of the water supply works authorised by the Water Supply Works Approval (response to statutory notice at pars 1.2(a)(i) and 1.3J: CB tab 20-T).

83. As already identified, the Defendant Mr Harris did not make any submissions to contradict the Prosecutor’s submissions in relation to Element 5. The Prosecutor has established Element 5 in all the offences in relation to Mr Harris beyond reasonable doubt.

Element 3: by means of a metered work

84. Element 3 requires proof beyond reasonable doubt that the water being taken was by means of a metered water supply work (pump). Metering equipment is defined in the Dictionary of the WM Act as any device which measures the flow of water inter alia.

Prosecutor submissions

85. In closing submissions, the Prosecutor submitted that it could not exclude the reasonable possibility that Pumps 3, 4 and 5 had functioning digital engine hour meters installed on them in the charge periods. The reasons for this concession arose from Mr Timmins’ affidavit, discussed further below. Concerning engine hour meters, the Prosecutor conceded that only the MACE meters can be relevant to Element 3 and this requires the Prosecutor to establish that these were installed in connection with Pumps 3, 4 and 5. A pump is a water management work as defined in the Dictionary to the WM Act, MACE meters are metering equipment given their purpose (not disputed) and these meters were installed (disputed) on a water management work.

86. The Prosecutor relied on the unchallenged evidence of Mr Pearce that he saw three MACE meters on the raised platform containing Pumps 3, 4 and 5. He described them as being affixed to the structural support posts for the roof at eye level with each being affixed to the post closest to the corresponding pump. He used the word “installed” to describe what he saw. Mr Blackwood confirmed this evidence by stating that he saw MACE meters located near each of the three pumps in 2015.

87. In the case against Mr Harris, the Prosecutor submitted that the Court should also take into account his admission in response to a statutory notice that Pumps 3, 4 and 5 had “Mace Mark 2 meters installed” (Item M) (response to statutory notice 25 November 2015 at Item M: CB tab 17-11). In response to a further question as to whether he was aware that it was “a condition of the Supply Works Approval that the pumps must have installed a functioning meter”, he responded in the affirmative, adding that “[t]he meters were installed prior to the 30 June 2010” (Item Q). That fact is repeated at p 3 of the statutory response (CB tab 17-11 p  274).

Prosecutor unable to prove Element 3

All offence particulars not proved

88. In the Prosecutor’s primary case it submits that analogue engine hour meters are metering equipment as defined in the Dictionary. While particulars (c) and (f) of the summonses refer to engine hour meters, all of the evidence of Mr Pearce and Mr Blackwood refers to analogue engine hour meters. The evidence of Mr Timmins of the installation of digital engine hour meters for Pumps 3, 4 and 5 prior to, and their use during, the charge periods was disclosed for the first time at the hearing. Mr Timmins’ affidavit is set out in full above in [59]. He attests to the use of engine hour meters on Pumps 3, 4 and 5, the problems with unreliability of MACE meters and the cessation of their use from 2011 (pars 9, 10), the installation of new digital engine hour meters in July 2015 (pars 11-17) and the types of meters used at Pumps 3, 4 and 5 in August 2015 (pars 21-28). Mr Timmins said electrical engineer Brock Murcum attended Mercadool in late July 2015. Mr Timmins saw Mr Murcum installing new tachometers that recorded the number of revolutions per minute by way of a needle on a dial, and digitally recorded the engine hours on an LCD display inside the same circular face. Mr Timmins asked Mr Murcum to leave the gauges of the old meters where they were. Mr Timmins described the engine hour meters by reference to photographs annexed to his affidavit at “B”, which I note were identical to those marked Exhibit 1 taken by Mr Blackwood during his visit to Mercadool, above in [51]-[52]. Mr Timmins described the face of the digital meters as the large circular objects located on the left side of the photographs. He said the display face of the old analogue meters is at the bottom left of the four circular items which appear on the right side of the photographs. I note that the photograph of an engine hour meter taken by Mr Blackwood shown to Mr Pearce in cross-examination depicted only the analogue dial (photograph shown above in [32]).

88. Mr Timmins said that prior to the installation of the new engine hour meters, he met someone named Mick Allen at the pump site at Mercadool who was coming to see if he could fix the MACE meters. Mr Timmins saw Mr Allen on site at the pump platform on a number of occasions, opening up the MACE housing boxes for Pumps 3, 4 and 5, taking things out and putting things in. He would occasionally take a box away and later reattach it to a pole and see if it worked. Upon seeing that the MACE meters were not working Mr Allen told Mr Timmins he had not been able to fix the problems. During this period Mr Timmins continued to treat the MACE meters as completely unreliable.

89. As already identified above, the Prosecutor submitted in closing submissions that it could not exclude the reasonable possibility that Pumps 3, 4 and 5 had functioning digital engine hour meters installed on them in the charge periods. This concession has substantial implications for the Prosecutor’s overall case in relation to all six offences. All summonses contain similar particulars as set out above in [5] and [9]. As a result of this concession, the Defendants submitted that particulars (c) and (f) were not made out, a fatal consequence for all six summonses being able to be established by the Prosecutor.

90. The Defendants submitted that the particulars in the summons at (c) require that the Prosecutor establish that the analogue engine hour meters and MACE meters were installed at each of the three pumps and were being used for or in connection with measuring the flow of water taken from the water source by the pumps. By reason of the particularised meters each pump was a metered work and both types of meters as particularised were not working at all or correctly, so that s 91I(2) was contravened. The engine hour meters referred to in all six summonses are analogue engine hour meters as that is what is identified throughout the Prosecutor’s evidence. As the Prosecutor has accepted that it cannot establish its case in relation to the analogue engine hour meters, all summonses should be disposed of as the Prosecutor’s pleaded case requires proof of both the engine hour meter and MACE meter aspects of the case. Particular (c) uses “and” not “or”. The two types of meters are not presented as alternatives.

91. I agree with the Defendants’ submissions. In all six summonses the Prosecutor’s case is that an analogue engine hour meter and a MACE meter were not working properly or at all in the charge periods. While the Prosecutor submitted that it could prove its case in the alternative, so that proof that the MACE meters did not operate or not operate properly in the charge periods was sufficient to establish the offences, that does not reflect the case as pleaded in all the summonses and the case the Defendants have been brought to the Court to meet. It is also the case the Prosecutor must prove in order to succeed on the charges. This failure provides a sufficient basis to dismiss all the charges.

92. There are a number of other matters identified by the Defendants in relation to Elements 3 and 4. I will not consider further evidence or submissions on the analogue engine hour meters identified in the evidence of Mr Pearce and Mr Blackwood. It is necessary to consider all the Defendants’ submissions on Elements 3 and 4 together as both are informed by considering s 91I in the wider context of the WM Act.

Element 4: meters on Pumps 3, 4 and 5 not operating / not operating properly between 6 and 8 August 2015

Prosecutor’s submissions

94. The Prosecutor argued that none of the MACE meters installed were operating or operating properly in the charge periods as identified by Mr Pearce. As against Mr Harris relevant admissions were made by him in a statutory notice dated 25 November 2015. The MACE meters have been installed at some point in the past and were therefore installed in the charge periods. The evidence of Mr Pearce demonstrated that they were not operating at all or not properly in the charge periods.

Defendants’ submissions on Elements 3 and 4

95. The Defendants made several additional submissions as to why the Prosecutor’s case on Elements 3 and 4 must fail. These require consideration of the meaning of s 91I(2) in its statutory context. To that end, the Defendants made a number of submissions on the approach to statutory construction that should be applied and also identified that there is no evidence before the Court of any requirement to have metering equipment installed for Pumps 3, 4 and 5. These overarching submissions assist in construing the parts of s 91I(2) the subject of Elements 3 and 4.

Principles of statutory interpretation

96. The starting point for ascertaining the meaning of a statutory provision is the text of the provision considered in light of its context and purpose, as the plurality said in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 262; [2017] HCA 34 at [14]; see also Gageler J (who was in dissent but not on the principles of statutory construction) at [37]-[39].

97. Provisions are to be given their ordinary and natural (or conventional) meaning that is appropriate having regard to the immediately surrounding words and their grammatical usage: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78] per McHugh, Gummow, Kirby and Hayne JJ; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; Interpretation Act 1987 (NSW) s 6. Section 33 of the Interpretation Act provides that a construction that promotes the purpose or object of the statute is to be preferred.

98. The purposes of the WM Act are contained in s 3. It must be acknowledged, however, that a statute may, expressly or impliedly, have a number of different, and potentially competing, purposes: Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36.

99. Another important principle of interpretation, especially when considering a statute regarding a criminal offence, is the principle of legality. As such, it is assumed that, absent clear language, Parliament did not intend to abrogate or curtail citizens’ rights, including by the imposition of criminal sanction and if so, only to the extent clearly delineated: Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 (Coco).

100. In construing such provisions, the convenience in carrying out an object authorised by the legislation is not a ground for eroding fundamental common law rights: Coco at 436 (quoting with approval Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5 at 654).

101. In the present case, where Parliament purports to prohibit certain conduct and to make it an offence (with a nearly unlimited maximum penalty, currently up to $5,005,000.00 and $264,000.00 per day thereafter), the onus is upon the State to clearly and unambiguously draft the terms upon which such punishment may be imposed.

102. If, applying the principles of construction set out above, there is ambiguity in the section, that ambiguity is to be resolved in favour of the Defendants, or in other words, if there are at least two reasonably open meanings, the Court must give effect to the more lenient one: Beckwith v R (1976) 135 CLR 569; [1976] HCA 55 per Gibbs J at 576.

103. I adopt as correct the Defendants’ submissions on the proper approach to statutory construction, particularly in light of the need to construe criminal provisions fairly.

Context of s 91I

104. When construing s 91I, it is important to understand how the provision operates in the context of the WM Act as a whole. The WM Act permits the taking of water by means of water access licences (WAL). The use of water is permitted by means of water use approvals and water management work approvals.

105. WALs are governed by Pt 2 of Ch 3 of the Act. Section 56 specifies that: (i) a licence entitles the holder the specified shares of available water, and (ii) permits the taking of water at specified times and/or in specified circumstances. The conditions of the licence are to be determined by the Minister: s 66. It would be open to the Minister to impose a condition requiring the installation of metering equipment and/or the taking of water only by means of metering equipment. It is an offence both to take water in certain circumstances, including without or otherwise than authorised by a WAL (s 60A), and to take water in contravention of the conditions of the licence (s 60B).

106. Part 3 of Ch 3 of the WM Act deals with water use approvals. These can be: (i) water use approvals, which permit the use of water for a purpose (s 89), or (ii) water management works approvals, which include water supply work approvals (s 90). As extracted above, the Dictionary to the WM Act defines “water supply work” as works including those that are constructed or used for the purpose of taking water from a water source, storing water, or conveying water to the point at which it is to be used. As with licences, conditions can be imposed upon these approvals by the Minister: ss 100-103. For water supply works, the Minister could impose a condition requiring the installation of metering equipment as part of the water supply works (eg with the pump). It is an offence to contravene the conditions of an approval (s 91G).

107. A direction to install metering equipment can also be issued by the Minister pursuant to s 326 of the Act.

108. At the time of the offences, the legislation therefore contemplated that installation and use of metering equipment can be mandated in the following circumstances:

1. if it is a condition of a WAL;

2. if it is condition of an approval;

3. if a direction is issued under s 326 of the Act; or

4. if a regulation made under Pt 6 of Ch 3 of the Act requires it.

109. In relation to metering equipment, in addition to the s 91I offence, the Act also prescribes the following offences in relation to metering:

1. To fail to install or maintain metering equipment pursuant to the conditions of a WAL or approval (s 91H).

2. To intentionally or recklessly interfere with, damage, or destroy metering equipment that has been installed (s 91K).

No requirement to take by means of metered work imposed on Defendants

110. There is no evidence of any requirement in either part of the WAL or the approval for metering equipment to be installed at any of the pumps, or for water to be taken by means of metered work. Nor is there evidence of an issuance of any direction or notice to require the installation of metering equipment, and nor was it required pursuant to the Regulations. The approval is in evidence (CB tab 23A p 429), and a review of it confirms that no such requirement exists.

111. According to the Defendant’s submissions above in 2015 metering was not a mandatory condition of a water supply work. In any event, no evidence that such a requirement was imposed is before the Court. The Water Management Amendment Act 2018 (NSW) inserted s 101A which provides:

101A Metering equipment condition

(1)   It is a mandatory condition of a water supply work approval that metering equipment is installed, used and properly maintained in connection with the work.

(2)   The holder of a water supply work approval is taken to have complied with a particular aspect of the condition imposed by this section if the holder has complied with the applicable requirements (if any) prescribed by the regulations.

(3)   The regulations may provide that the condition does not apply to holders of approvals, or works, specified by the regulations, or in circumstances specified by the regulations.

112. This provision has been made since the charge periods in August 2015.

113. These matters also inform the construction of s 91I(2) to which I now turn.

Time of offence

114. The Defendants submitted that s 91I(2) is concerned with circumstances at a point in time when water is taken by a person, not with historic events. Whether equipment has been installed in the past is irrelevant, contrary to what the Prosecutor submits.

115. In relation to the operation of s 91I(2), the following matters are of particular significance:

1. the section is concerned with the circumstances at a point in time, not historically – it concerns the state of affairs at the point in time when a person “takes water”, and whether at that point in time the person is taking water “by means of” a metered work (see s 91I(2));

2. the inquiry is whether “its” (that is, the work’s) metering equipment “is” not operating properly or at all (see s 91I(2)) – that is, whether that which is (not once was) the work’s metering equipment (if any) at the time of the offence is not operating properly or at all;

3. consistently with this focus on that point in time, for the work to have “its” metering equipment, such metering equipment must be a device that is in fact “used for or in connection with” measuring the flow of water (see definition of metering equipment). The inquiry here is whether the work had at the time of the alleged offence a meter being used for or in connection with measuring water flow. The inquiry is not whether the meter had been used at some point in the past or was used in some later period;

4. consistent again with this focus on that point in time, for the work to be a metered work the metering equipment that is in fact being used for or in connection with the measuring of flow for that take of water must be equipment that actually has been installed to the work at the time – not equipment that perhaps once was but is not at the time of the alleged offence installed to the work (see definition of “metered work”). (Note, however, the Prosecutor has adduced no evidence of when and how any of the particular meters came to be installed on the pumps.) The Prosecutor appears to argue that the words “has been installed” are intended to direct attention to a historic question of whether the equipment once was installed. The words “has been” are properly understood as requiring the equipment to be installed at the time of the offence. That makes perfect sense in circumstances where s 91I(2) is directed to “its” (ie the work’s) metering equipment at the time when water is taken;

5. all of these above matters about the metering equipment having to be in fact installed to the works and in fact used to measure flow of water demonstrate the significance of the fact that s 91I(2) is only concerned with a circumstance where water is being taken “by means of” a work that is actually a metered work – that is, whether at the time water is taken there are meters installed to the work and used to measure flow and if so, whether that equipment which actually qualifies the work as a metered work is operating properly or not.

116. I agree with the Defendants’ construction of s 91I(2) in relation to the time of an offence. This has implications for other parts of the Prosecutor’s case discussed below.

Installation of MACE meters not proven (Element 3)

117. The Defendants submitted that the Prosecutor has not established that the MACE meters were installed at the time of the alleged offence and the pumps were not metered works to which s 91I(2) applies. The evidence with respect to the MACE meters is as follows:

1. the only evidence advanced by the Prosecutor was a bald assertion from Mr Pearce that the pumps had MACE meters “installed on them” (Affidavit, Trevor Pearce at par 32: CB tab 12);

2. Mr Pearce gave no evidence to demonstrate that as at August 2015 the MACE meters were actually installed to the pumps in the sense of being actually connected and configured for the purpose of calculating volume flow. He did not pretend in his affidavit that he had actually checked the necessary physical elements to determine whether this was so or what process he would have had to follow to undertake such an inspection;

3. ultimately, as was clarified in cross-examination, all that Mr Pearce meant by saying that the MACE meters were “installed” was that he saw some parts of the MACE meters that were physically present – that is he could see blue faced boxes, for example shown in the photograph above in [34], were physically affixed to posts on the pump platform (Tcpt p 39(20));

4. as Mr Timmins explained, in order for a MACE meter to be actually installed to a pump so as to be used to measure flow, one must have the MACE box with its button and digital screen and the electronics which are housed within the box, together with a cable which connects that box to a discharge pipe in which there is positioned a sensor to sense water flow (Affidavit, Trevor Pearce at par 24: CB tab 12). The cable to the discharge pipe can be disconnected from the MACE box. Given what has just been described, the only way to tell if this has occurred is if one opens the box to check. If the cable is not connected, the MACE meter will not be set up to have any physical relationship with the pump. In that state, it would not be correct to regard the meter as being “installed”;

5. as noted above, Mr Pearce did not address any of these matters in his evidence. It is to be remembered that he gave evidence that he was particularly unwell and in discomfort during his short visit to the site – so much so that his visit was cut short by reason of him feeling the need to be hospitalised. It is therefore unsurprising that Mr Pearce did not suggest that he would have undertaken an inspection of the cabling and other elements of the MACE meters that would be required to determine whether the MACE meters were actually installed to the pumps at the time;

6. prior to the relevant charge period, Mr Timmins observed that a person called Mr Allen was dealing with these MACE boxes with a view to seeing whether he could get them to operate reliably, as set out at pars 25-27. Mr Allen took things in and out of the MACE boxes. He took MACE boxes away and brought MACE boxes back. When he returned them the boxes did not work and he dealt with objects inside the boxes further, and left the site having been unable to get them operating (Affidavit, Timmins at par 26: MFI-2). It is entirely possible in these circumstances that Mr Allen left the MACE meters without the cable to the sensor or some other necessary part plugged in at all. One would not know without looking inside the boxes and there is no evidence from Mr Pearce that he could have or did do so. The Prosecutor’s evidence has not eliminated reasonable doubt in this regard;

7. further evidence to support the submission that the Prosecutor did not prove beyond reasonable doubt that the MACE meters were installed on the days in question comes from the Prosecutor’s own evidence as to what was recorded (or rather not recorded) on the display of the housing box of the meters. Mr Pearce’s own evidence was that they were recording “no flo” on Pumps 3 and 5 and nothing on Pump 4. There is no evidence led by the Prosecutor to establish that these matters were not the result of the MACE housing box not having been connected to the pumps at all and could only be the result of the MACE meters not operating correctly. The evidence the Prosecutor led tends to suggest that the meters were not connected at all – ie not installed. That is because although the pumps were drawing water, the displays were recording either “no flo” or nothing. This is further supported by the fact that when Mr Blackwood went back later after further pumping had occurred, the totalizer readings remained the same (Affidavit, Trevor Pearce at par 33: CB tab 12; affidavit, Blackwood at par 20: CB tab 15).

118. For these reasons, the Prosecutor did not establish beyond reasonable doubt that the MACE meters were installed at the three pumps at the relevant time.

119. I agree for the reasons identified above by the Defendants, supported by the evidence referred to above. That Mr Pearce describes the MACE meters as “installed” in his affidavit does not prove such a fact. The physical presence of meters alone does not amount to installation for use. Mr Timmins’ unchallenged evidence is that the MACE meters were not operating from about 2009 due to their unreliability. The Prosecutor has not proved that MACE meters were installed in the charge periods.

“Used” and “by means of” not proven (Element 3)

120. The Defendants submitted that “by means of” in the definition of “metering equipment” requires that the metering equipment that is installed (assuming that has been proven) is used for or in connection with measuring flow. The act of taking water must be linked in a real and substantive way to the use of the metering equipment said not to be operating correctly. Mere presence of equipment is not “use of”, or “by means of”.

121. Even if the element of installation was proved beyond reasonable doubt, s 91I(2) does not create an offence by taking water merely because meters that do not work happen to be present, installed or otherwise. The section uses the connecting phrase “by means of” and this phrase relates to metered works, which in turn expressly requires that the metering equipment that is installed to the works is “used” for or in connection with measuring flow. These words together require that the act of taking the water to be linked in a real and substantive way to the use of (not the mere presence of) the metering equipment that is said to be not operating correctly.

122. Such a connection is established where the metering equipment is being or must be used by the approval holder. It is not established where the metering equipment is merely there, when it is neither required to be used or actually being used.

123. In the present case neither the legislation nor the Water Supply Works Approval required the use of any metering equipment, let alone the specific MACE meters or the analogue engine hour meters. In fact, water was taken by means of pumps which did not use the analogue engine hour meters or the MACE meters. Instead, Mr Timmins used a digital engine hour meter, which is not said to be faulty. That being so, there was no contravention of s 91I(2).

124. I agree with the Defendants’ submissions above that the Prosecutor has not established the MACE meters were “used” or that water was extracted “by means of” the MACE meters in the charge periods.

Whether water “take[n] ...by means of a metered work” (Element 3)

125. The Defendants submitted that s 91I(2) only applies where water is “take[n]... by means of a metered work”. It might be argued that there are a number of possible constructions of what is meant by “take[n]... by means of a metered work”, however the Defendants’ submission is that only one interpretation is reasonably open.

126. The Defendants contend that the correct interpretation of “by means of” a metered work is that the taking of water must be by the use of metering equipment that is required to be used or is actually being used. This is supported by the fact that the metered work only qualifies as such if the metering equipment is “used for or in connection with” measuring flow (see definition of metering equipment). Metering equipment does not qualify as such simply because it could or might be able to be used for measuring flow. It only qualifies where it can be said to be equipment “used” for that purpose. This would occur where water was taken where the person was required by statute, statutory instrument or direction, to use the meter, or where it is actually using the meter for that purpose.

127. An alternative construction is merely that if water was taken and there was metering equipment installed or present, whether required or not, and whether used or not (where not required), then the water was taken by means of metered work. That appears to be the Prosecutor’s position.

128. There are two reasons why that interpretation should be rejected.

129. First, if this is what Parliament intended, there was no reason to use the language “by means of”. Rather, the offence provision could be framed as “take water... when metering equipment is installed/present while its metering equipment is not operating properly or is not operating ...”. “By means of” would be mere surplusage.

130. Rather than being superfluous, the work of these words and phrases is in identifying that the section is not creating an offence by taking water merely because meters that do not work happen to be present. It requires that the act of the taking of the water to be linked in a real and substantive way to the use of (not the mere presence of) the metering equipment. The words “by means of” should be given real work to do, and this is achieved through the Defendants’ construction. This sits comfortably with, and is supported by, the use of the positive word “used” in the definition of “metering equipment”.

131. Second, the Prosecutor’s interpretation would also produce clearly undesirable and unintended results. For example:

1. a landowner would be liable if he or she turned off a faulty meter and commenced recording the take of water by other means – for example recording occasions when the engine was turned on and off. The fact that the meter was installed and not even used would still render the landowner liable to criminal sanction. This would be so even though, in such a case, the landowner could very well be turning off the meter in order to avoid being accused of using faulty metering equipment;

2. an offence would also occur where a newer and better meter is installed and positively used, and the obsolete one that is no longer used just so happens to be left in situ, completely unused (this case);

3. a landowner would be liable of a criminal offence if he or she had a faulty meter, left it installed in the hope of being able to use it again if it could be fixed, and was waiting for a repair person to come to inspect the meter and attempt to fix it.

132. It is improbable that the legislators would have intended the section to produce these unusual and plainly unfair results. Yet the Prosecutor urges on the Court a reading of the section under which this is precisely how the section would operate – potentially making large numbers of people in disparate circumstances, all endeavouring to do the right thing, guilty of criminal offences. A construction which avoids unusual or capricious results should be avoided: Attorney General of New South Wales v WB [2020] NSWCA 7 per Leeming JA at [93].

133. On the other hand, the proper construction the Defendants contend for has the following attributes:

1. It avoids the unusual results described above, being results of a kind that the Court should find Parliament did not intend.

2. It is consistent with the scheme of the WM Act as a whole which does not mandate the use of meters and provides for meters to be imposed as a condition of works or allows them to be relied upon to ensure compliance with the WM Act. There is ample scope within the legislative scheme for reasonable conditions to be imposed in relation to metering equipment, and for those who fail to comply with those conditions to be held accountable – such as the provisions for including conditions in approvals or by way of statutory direction, and offence provisions for breach of such conditions as described above.

3. It is consistent with the natural and ordinary meaning of the words of the section, such as the words “used” and “by means of” as already explained above.

4. It confines criminal liability to a specified class of conduct, namely persons who must or do use metering equipment that is not operating or not operating properly.

134. Adding to the weight of these considerations is that s 91I(2) is a strict liability offence. That being so, it is unlikely to have been intended to have the very broad-ranging operation the Prosecutor contends for and is more likely to have been intended to create criminal liability to a specified class of conduct as described above.

135. The consequence of the proper construction of s 91I(2) is that the Prosecutor had to prove that the meters it relies on (the MACE meters) had to be or were being used at the time of the alleged offence and it has not.

While its metering equipment is not operating properly or is not operating (Element 4)

136. For the reasons given above by the Defendants, the Prosecutor has not established beyond reasonable doubt that the pumps’ metering equipment was not operating properly or at all, within the meaning of that expression in s 91I(2).

Statutory notices

137. In the Harris cases only, the Prosecutor sought to rely on alleged admissions by Mr Harris in answers given to questions posed in a statutory notice served in November 2015 referred to in the context of Element 3 at [87] above in relation to Element 4 above at [94]. The Defendant submitted that a close examination of those questions and answers reveals that there were no admissions at all in relation to the matters the subject of the charges. The relevant questions and answers are set bout above at [49]-[50]. In particular, each of the following matters provide a complete answer to the Prosecutor’s submission:

1. the questions and answers bear close scrutiny. In this regard:

1. Questions M (are metering devices installed on pumps) and N (are meters functioning correctly) are expressly directed to the position as at the date of the notice or the date of the response – in either case November 2015 (CB tab 17-10 pp 267, 272) and not the position at the charge period of 6-8 August 2015. Those answers are not proof of the position some months earlier in time – the unchallenged evidence of Mr Timmins as to what was occurring at that earlier time is set out above;

2. The answer to Question O (were meters working properly at 6 August 2015) was that the meters were not working properly on 6 August 2015 (CB tab 17-10 pp 267, 273). The answer given is consistent with the evidence of Mr Timmins already addressed above, namely that in the period in and after July 2015 Mr Allen was performing work on the MACE meters. It is entirely possible that the MACE meters were not actually connected on the particular days in question. As such, the answer does not assist the prosecution;

2. the answers do not serve as any useful or probative evidence in any event. They were questions asked in circumstances where there was no prosecution, without any evidence that anybody was taking care as to the meaning and effect of particular statutory expressions that are now under consideration. Indeed, the notice itself advanced questions from the regulator that were glaringly wrong – eg question Q. It is a wholly unreliable guide;

3. the Court has the benefit of the evidence of Mr Timmins. It was not challenged. That more detailed evidence provides a more reliable guide to findings of fact than anything said or not said in response to the statutory notice.

138. I accept these submissions of the Defendant Mr Harris. The statutory notices do not prove Elements 3 or 4 of the charges in relation to Mr Harris.

Overall conclusion that Defendants not liable

139. The Defendants submitted that the Prosecutor did not discharge its burden of proof in relation to Elements 3 and 4. First, none of the MACE meters were required to be used by the Water Supply Works Approval. Second, the evidence does not establish that the MACE meters were actually being used by Mr Timmins at the relevant time. Mr Timmins gave unchallenged evidence that he was not using the MACE meters at the relevant time (August 2015). His evidence should be accepted. In these circumstances there has been no contravention of s 91I(2). It was not contravened simply because the MACE meters happened to be there. I agree.

Additional submission

140. The Defendants also made another submission which it is unnecessary to determine to resolve liability. If correct, it has substantial implications for similar prosecutions in the future. I set out the Defendants’ submissions. The Prosecutor must prove that a pump’s metering equipment is not operating properly or at all, within the meaning of that expression in s 91I(2). Properly construed, the provision is not breached where the work has installed on it a meter (including its ancillary pipework etc) which is used to measure flow, and that meter is working properly. Where that circumstance exists, and to use the language of s 91I(2), it cannot be said that when water was taken by the work (here a pump), “its metering equipment is not operating properly or is not operating”. On a common-sense application of the words in question, the pump’s metering equipment was operating properly (the digital engine hour meter).

141. There may also be some other metering equipment installed on the pump which does not operate properly. However, the section does not provide that where there are multiple meters, they all work properly. The section does not provide that “all of” its meters or “every” meter be operating properly. Instead, the section is directed to a broader question, being whether it can be said, viewed as a whole, on the day water was taken that “its metering equipment is not operating properly”. That cannot be said where the pump has a meter that is operating properly. The section is to be understood as having a purpose. That purpose is to ensure that where the works are metered works and are used to take water there is a functioning meter. That purpose is satisfied where there is a functioning meter according to the Defendant.

Additional evidence not considered

142. I note for completeness that the Defendants tendered a number of reports and correspondence on what was apparently the vexed question of using MACE meters in the Barwon-Darling river system given concerns about their reliability both by water users and the relevant department. This material is itemised above in [60] and was referred to in the cross-examination of Mr Pearce set out above at [36]-[37], [39]-[40]. It is unnecessary to further consider this material in order to determine the matters in issue.

Conclusion on liability

143. The Prosecutor has not proved Elements 3 and 4 beyond reasonable doubt in all six offences. All six offences must be dismissed.

Orders

144. The Court orders:

1. In proceedings nos 18/238837, 18/238838, 18/238839 the charges that the Defendant Peter Harris between 6 August 2015 and 8 August 2015 inclusive, at the properties known as “Mercadool” and “Four G” at Mercadool Road Walgett, in the County of Denham, the Parishes of Denuleroi, Pagan, Manilla, Barwon and Terribie in the State of New South Wales (together, “Mercadool”), committed an offence contrary to s 91I(2) of the Water Management Act 2000 (the Act) pursuant to s 91L of the Act in that water was taken from a water source to which Part 3 of Chapter 3 of the Act applied by means of a metered work while its metering equipment was not operating properly or was not operating on land occupied by the Defendant are dismissed.

2. In proceedings nos 18/238877, 18/238878, 18/238879 the charges that the Defendant Justin Timmins on 6 August 2015 at the properties known as “Mercadool” and “Four G” at Mercadool Road, Walgett, in the County of Denham, the Parishes of Denuleroi, Pagan, Manilla, Barwon and Terribie in the State of New South Wales (together, “Mercadool”), committed an offence contrary to s 91I(2) of the Water Management Act 2000 (the Act) in that he took water from a water source to which Part 3 of Chapter 3 of the Act applied by means of a metered work while its metering equipment was not operating properly or was not operating are dismissed.

3. The exhibits are returned.

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Decision last updated: 04 August 2020