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[2025] NSWLEC 109
General information, not legal advice.
Land and Environment Court (NSW)
2025-10-02
Pain J
Original judgment source is linked above.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Green Leaf Australia Group Pty Ltd v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2025] NSWLEC 109
Hearing dates: 4 September 2025
Date of orders: 2 October 2025
Decision date: 02 October 2025
Jurisdiction: Class 6
Before: Pain J
Decision: See below in [67]
Catchwords: CRIMINAL APPEAL – sole ground of appeal that prosecutor did not have power to commence prosecutions under the Water Management Act in Local Court by court attendance notice – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 31
Criminal Procedure Act 1986 (NSW), ss 3, 14, 170, 172, 173, 174
Crown Proceedings Act 1988 (NSW), s 3
Government Sector Employment Act 2013 (NSW), s 20
Independent Commission Against Corruption Act 1988 (NSW), ss 19, 116
Interpretation Act 1987 (NSW), ss 5, 13, 13A, 34, Sch 4
Natural Resources Access Regulator Act 2017 (NSW), ss 3, 4, 5, 6, 7, 8, 10, 11, 12, 12A, 17
Water Management Act 2000 (NSW), Pt 1 Ch 7, ss 17, 60G, 78, 91B, 91E, 109, 390
Cases Cited: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
Franks v Woollahra Municipal Council [2007] NSWLEC 461
Gamage v Riashi [2025] NSWCA 84
Kang v Bishop (No 2) [2018] NSWSC 1073
Natural Resources Access Regulator v Green Leaf Australia Group Pty Limited; Natural Resources Access Regulator v Xiuming Lin [2024] NSWLC 2
Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4
Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485; [2021] NSWCA 204
Texts Cited: Independent Commission Against Corruption Bill 1988 (NSW)
Natural Resources Access Regulator Bill 2017 (NSW)
New South Wales Legislative Assembly, Natural Resources Access Regulator Bill 2017 Second Reading Speech (Hansard) 22 November 2017
Category: Principal judgment
Parties: Proceedings 2025/00132025, 2025/00132026, 2025/00132027, 2025/00132028, 2025/00132029, 2025/00132030, 2025/00132031, 2025/00132032, 2025/00132033, 2025/00132034, 2025/00132035, 2025/00132036:
Green Leaf Australia Group Pty Ltd (Appellant)
Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator (Respondent)
Proceedings 2025/00132573, 2025/00132574, 2025/00132575, 2025/00132576, 2025/00132577, 2025/00132578, 2025/00132579, 2025/00132580, 2025/00132581, 2025/00132582, 2025/00132583, 2025/00132584:
Xiuming Lin (Appellant)
Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator (Respondent)
Representation: Counsel:
S Odgers SC with G Lewer (Appellants)
E Muston SC (Respondent)
Solicitors:
Gells Lawyers (Appellants)
NSW Crown Solicitor’s Office (Respondent)
File Number(s): 2025/00132025, 2025/00132026, 2025/00132027, 2025/00132028, 2025/00132029, 2025/00132030, 2025/00132031, 2025/00132032, 2025/00132033, 2025/00132034, 2025/00132035, 2025/00132036, 2025/00132573, 2025/00132574, 2025/00132575, 2025/00132576, 2025/00132577, 2025/00132578, 2025/00132579, 2025/00132580, 2025/00132581, 2025/00132582, 2025/00132583, 2025/00132584
Publication restriction: Nil
Green Leaf Australia Group Pty Limited and Mr Lin (the Appellants) were each convicted of 12 offences under the Water Management Act 2000 (NSW) (WM Act) in the Local Court on 25 June 2024. They have appealed their convictions as of right as provided by s 31(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). The one ground of appeal in each of the amended summonses commencing these appeals is that the Local Court magistrate erred in finding that the Natural Resources Access Regulator (NRAR) had power to bring the multiple prosecution proceedings against the Appellants in the Local Court of NSW.
The Appellants were each charged with several offences under the WM Act:
Charges 1 to 4 relate to the ‘use’ of a water supply work without approval and were brought under s 91B of the WM Act
Charges 5 and 6 relate to the construction of an extension to a dam and were brought under s 91B of the WM Act
Charges 7 through 12 relate to carrying out a controlled activity without approval and were brought under s 91E of the WM Act
Charges 13 through 16 are alternative charges to charges 7, 8, 11 and 12 respectively, of carrying out construction of a water supply work without approval and were brought under s 91B of the WM Act.
The charges relate to a property at 2302 Pacific Highway Clybucca.
The prosecutions were commenced by Court Attendance Notices (CANs) filed in the Local Court. The CANs filed in the Local Court were not signed by a registrar. The CANs provided the following details of the prosecutor as follows:
Prosecutor: Grant Barnes, Chief Regulatory Officer
Department/Organisation: Natural Resources Access Regulator
Address: c/- Department of Planning and Environment
…
It is common ground that if the CANs were issued invalidly the convictions and sentences must be set aside.
Section 18(1) of the CAR Act states that an appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings. I consider the matter afresh and it is not necessary that I find any fault in the magistrate’s reasoning; Franks v Woollahra Municipal Council [2007] NSWLEC 461 at [24]. As the one ground of appeal raises a pure question of law requiring statutory construction there was no need to consider the transcript or evidence in the Local Court.
Jurisdiction of the Natural Resources Access Regulator to Initiate and Maintain the Prosecution Proceedings
[316] The defendants submitted that, by operation of s 11 of the NRAR Act, the prosecutor in these proceedings has not been statutorily conferred the function of initiating and maintaining criminal prosecution proceedings in respect of the offences, relevantly, under the WM Act. In particular, it was submitted that s 11(1)(e) of the NRAR Act and Schedule 2 do not give the prosecutor the power to bring these proceedings.
…
[324] I note that the right to institute a prosecution or proceeding is not expressly conferred by the WM Act on a specified person or class of persons.
[325] Accordingly, putting to one side s 12 of the NRAR Act, s 14 of the Criminal Procedure Act 1986 authorised the Natural Resources Access Regulator to initiate and maintain these proceedings. It does not matter, as the defendants submitted, that s 11 and Schedule 2 of the NRAR Act does not expressly confer the function of commencing prosecution proceedings on that entity, because, I find, there was another source of statutory power.
[326] Further, nothing in the parliamentary Hansard concerning the debate on the Bill which ultimately led to the passing of the Natural Resource Access Regulator Act 2017, which the defendants identified in their closing submissions by reference to Exhibit 46, causes me to form a different view. I likewise find that the parliamentary debates and speeches which the defendants identified in their closing submissions do not in any way cast any doubt over the Natural Resources Access Regulator’s power to have initiated and maintained these proceedings relying on s 14 of the Criminal Procedure Act 1986. Expressed in terms of the case authorities I cited earlier, this finding does not contradict the purpose or intent of the legislation as reflected in, for example, the second reading speeches or other parts of the Hansard upon which the defendants relied.
The arguments I heard were I surmise far more extensive than were presented to the magistrate not least because the primary argument of the Respondent in this appeal is that the NRAR is not the relevant prosecuting entity. Mr Barnes its Chief Regulatory Officer (CRO) is the Prosecutor. The nature of the arguments now before the Court give rise to a number of issues not all of which are necessarily encompassed in the one appeal ground. As the matter is by way of rehearing no consequence arises from these observations.
Several pieces of legislation must be referred to in the context of the parties’ submissions.
Chapter 1 Preliminary
3 Definitions
**(**1) In this Act…
public officer means any of the following persons, if acting in an official capacity—
(a) an employee in the Public Service or the NSW Police Force,
(b) an officer or employee of a statutory body representing the Crown,
…
(f) an officer or employee of a body declared by the regulations to be a public body for the purposes of this definition.
…
(3) In the absence of evidence to the contrary, a person specified in paragraphs (a)–(f) of the definition of public officer who purports to exercise a function as a public officer under this Act is presumed to be acting in an official capacity.
...
Chapter 2 General Provisions
Part 1 Offences
…
14 Common informer:
Common informer
A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.
…
Ch****apter 4 Summary procedure
Par****t 1 Preliminary
170 Application
(1) This Chapter applies to or in respect of proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily.
…
Part 2 Trial Procedures in lower courts
Division 1 Commencement of proceedings
172 Commencement of proceedings by court attendance notice
(1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division.
(2) A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence.
(3) A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State.
173 Commencement of proceedings by police officer or public officer
If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division.
174 Commencement of private prosecutions
(1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.
…
Part 1 Preliminary
…
3 Definitions
(1) In this Act—
…
enforcement powers, in relation to the natural resources management legislation, means any powers that may be exercised under that legislation in connection with the enforcement of that legislation, including—
(a) powers that may be exercised for the purposes of determining whether there has been compliance with or a contravention of that legislation, or
(b) the issuing of any notice, order or direction, or the imposition of any penalty or charge, under that legislation.
…
natural resources management legislation means any of the following Acts and the regulations and other instruments made under those Acts—
(a) this Act,
(b) Water Management Act 2000,
…
Regulator means the Natural Resources Access Regulator constituted under this Act.
…
Part 2 Natural Resources Access Regulator
Division 1 Constitution and management of Regulator
4 Constitution of Regulator
(1) There is constituted by this Act a body corporate with the corporate name of the Natural Resources Access Regulator.
(2) The Regulator is a NSW Government agency.
…
6 Role of Board
(1) Any decision relating to the functions of the Regulator is to be made by or under the authority of the Board.
(2) Any act, matter or thing done in the name of, or on behalf of, the Regulator by or under the authority of the Board is taken to have been done by the Regulator.
7 General directions by Minister
(1) The Minister may give the Regulator a written direction with respect to the functions of the Regulator if the Minister is satisfied that it is necessary to do so in the public interest.
(2) A direction by the Minister may be of a general nature only and may not relate to a specific matter that is being considered or determined by the Regulator.
(3) In particular, a direction by the Minister under this section may not be made in relation to the following—
(a) the content of any advice or report given by the Regulator,
(b) any determination by the Regulator whether proceedings for offences under the natural resources management legislation should be instituted.
…
8 Chief Regulatory Officer
(1) The Chief Regulatory Officer of the Regulator is the person employed in the Public Service as the Chief Regulatory Officer.
(2) The Chief Regulatory Officer—
(a) is responsible for the day-to-day management of the activities of the Regulator, and
(b) is to report to the Board on those activities.
(3) The Chief Regulatory Officer is entitled to attend and to participate in discussions at meetings of the Board but is not entitled to vote at any such meeting.
…
Division 2 Objectives and functions of Regulator
10 Principal objectives of Regulator
The principal objectives of the Regulator are—
(a) to ensure effective, efficient, transparent and accountable compliance and enforcement measures for the natural resources management legislation, and
(b) to maintain public confidence in the enforcement of the natural resources management legislation.
11 Functions of Regulator
(1) The Regulator has the following functions—
(a) to prepare strategies, policies and procedures relating to enforcement powers under the natural resources management legislation,
(b) to advise and report to the Minister or any relevant Minister on any matter relating to the administration of the natural resources management legislation,
(c) to provide the Minister or any relevant Minister with such other advice or reports as the Minister or relevant Minister may, by instrument in writing, request,
(d) to publish details of convictions in prosecutions for offences under the natural resources management legislation,
(e) such functions under the natural resources management legislation as are specified in Schedule 2,
(f) any other functions conferred or imposed on the Regulator (including by way of delegation) by or under the natural resources management legislation or any other Act.
(2) A function specified in Schedule 2 (a specified function) that is conferred on the Regulator by subsection (1) (e) may, despite that conferral, also be exercised by the person (the relevant person) on whom the function is conferred under the natural resources management legislation referred to in that Schedule.
(3) The regulations may amend Schedule 2 by—
(a) adding a function under the natural resources management legislation, or
(b) amending or removing a specified function,
but only with the concurrence of the relevant Minister administering the natural resources management legislation (other than this Act) under which the function is conferred.
(4) The regulations may make provision for dealing with matters that are incidental to or consequential on the conferral of a specified function on the Regulator.
(5) In particular, the regulations may—
(a) require a reference in the natural resources management legislation to the relevant person or any other person to be construed as (or as including) a reference to the Regulator, and
(b) deal with matters arising in connection with the exercise of a specified function by both the Regulator and the relevant person.
(6) If a person has a right to appeal against, or to apply for a review of, a decision of the relevant person in exercising a specified function, the right extends to any decision of the Regulator in exercising that function.
12 Regulator to determine whether proceedings for offences should be instituted
(1) The Regulator is to determine whether proceedings for offences under the natural resources management legislation should be instituted by the Crown.
(2) The Regulator may not determine that any such proceedings should be instituted unless the determination is supported by legal advice.
(3) In this section, the Crown means the Crown within the meaning of the Crown Proceedings Act 1988, and includes any officer, employee or agent of the Crown.
(4) Criminal proceedings may not be challenged on the ground that they were instituted in contravention of this section.
12A Register of information about water enforcement action
(1) The Regulator may keep, and may make publicly available, a register of information about enforcement actions taken by or on behalf of the Regulator under the Water Management Act 2000.
(2) The register may include the following information—
(a) the identities of persons on whom penalties have been imposed under sections 60G, 78 and 109 of the Water Management Act 2000 and the penalties imposed,
(b) the identity of any person to whom a penalty notice has been issued in respect of an offence under that Act and particulars of the offence,
(c) particulars of any direction issued by the Regulator under Part 1 of Chapter 7 of that Act and the identities of any persons to whom the direction is given,
(d) particulars of any decision to suspend or cancel an access licence under section 78 of that Act or to suspend or cancel an approval under section 109 of that Act,
(e) any other information prescribed by the regulations for the purposes of this section.
(3) Regulations may be made for or with respect to the register kept under this section.
(4) Information may be disclosed in accordance with a regulation made under this section despite any prohibition in, or the need to comply with a requirement of, any Act or law (in particular, the Privacy and Personal Information Protection Act 1998 (other than Part 6 of that Act)).
(5) No liability (including liability for defamation) is incurred by a person or the Crown for publishing in good faith information in a register under this section.
…
Part 3 Miscellaneous
…
17 Exclusion of personal liability
(1) Any matter or thing done or omitted to be done by a person who is—
(a) a member of the Board or a committee of the Board, or
(b) the Chief Regulatory Officer or any other Public Service employee, or
(c) acting under the direction of the Board,
does not, if the matter or thing was done or omitted to be done in good faith in connection with exercising the functions of the Regulator under the natural resources management legislation, subject the person personally to any action, liability, claim or demand.
(2) However, any such liability attaches instead to the Crown.
…
Chapter 3 Water management implementation
…
Part 3 Approvals
…
Division 1A Offences
…
91B Construction or using water supply work without, or otherwise as authorised by, a water supply work approval
(1) A person—
(a) who constructs or uses a water supply work, and
(b) who does not hold a water supply work approval for that work,
is guilty of an offence.
Tier 2 penalty.
…
91E Carrying out controlled activity without, or otherwise than as authorised by, a controlled activity approval
(1) A person—
(a) who carries out a controlled activity in, on or under waterfront land, and
(b) who does not hold a controlled activity approval for that activity,
is guilty of an offence.
Tier 2 penalty.
(2) The holder of a controlled activity approval who carries out a controlled activity in, on or under waterfront land otherwise than as authorised by the approval is guilty of an offence.
Tier 2 penalty.
…
3 Definitions
In this Act:
…
Crown means the Crown in right of New South Wales, and includes:
(a) the Government of New South Wales, and
(b) a Minister of the Crown in right of New South Wales, and
(c) a statutory corporation, or other body, representing the Crown in right of New South Wales.
…
Part 4 The Public Service
Division 1 General
20 The Public Service
The Public Service of New South Wales consists of those persons who are employed under this Part by the Government of New South Wales in the service of the Crown.
…
Part 1 Preliminary
…
5 Application of Act
…
(2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.
…
Part 2 Words and expressions
…
13 Sovereign and Crown
In any Act or instrument—
…
(b) a reference to the Crown is a reference to the Crown in right of New South Wales.
13A NSW Government agencies and statutory bodies representing the Crown
(1) If an Act provides that a body is—
(a) a NSW Government agency, or
(b) a statutory body representing the Crown,
the body has the status, privileges and immunities of the Crown.
(2) If an Act provides that a body—
(a) is not or does not represent the Crown, or
(b) is not a NSW Government agency or a statutory body representing the Crown,
the body does not have the status, privileges and immunities of the Crown.
(3) This section extends (without limiting its operation)—
(a) to a provision that is expressed to be made for the purposes of any Act or more generally, and
(b) to privileges and immunities conferred by law expressly or as a matter of construction.
(4) In any Act or instrument—
(a) a reference to a NSW Government agency includes a reference to a body that is declared to be a statutory body representing the Crown, or
(b) a reference to a statutory body representing the Crown includes a reference to a body that is declared to be a NSW Government agency.
(5) In this section, the Crown includes the State and the Government of the State.
…
Part 5 Construction of Acts and instruments
31 Acts and instruments to be construed so as not to exceed the legislative power of Parliament
(1) An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament.
(2) If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament—
(a) it shall be a valid provision to the extent to which it is not in excess of that power, and
(b) the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.
(3) This section applies to an Act or instrument in addition to, and without limiting the effect of, any provision of the Act or instrument.
…
Schedule 4 Dictionary
…
Public Service or NSW Public Service means the Public Service referred to in the Government Sector Employment Act 2013.
…
The NRAR Act does not imply that the NRAR has authority to institute proceedings in the absence of express power to do so.
Section 12 of the NRAR Act requires the NRAR to determine whether proceedings for offences under the natural resources management legislation should be instituted by the Crown. The NRAR may not determine that any such proceedings should be instituted unless the determination is supported by legal advice. ‘Crown’ is defined in s 3 of the Crown Proceedings Act to mean the Crown in right of NSW and includes the NSW Government, a Minister of the Crown in right of NSW and a statutory corporation or other body representing the Crown in right of NSW.
The NRAR is a statutory corporation per s 4(1) of the NRAR Act. It is not a body representing the Crown in right of New South Wales as defined in the Crown Proceedings Act. Under s 13A(1) of the Interpretation Act where an Act provides for a body that is a NSW Government agency or a statutory body representing the Crown, that body has the status, privileges and immunities of the Crown.
As the NRAR is a NSW Government agency under s 4(2) of the NRAR Act it is not a statutory body representing the Crown in right of NSW. A distinction is drawn between the two in s 13A of the Interpretation Act. In any case the Interpretation Act would be displaced by the clear meaning of s 4(2) which indicates that NRAR is a NSW Government agency; see s 5(2) of the Interpretation Act.
The terms of s 12(1) of the NRAR Act clearly imply that the NRAR is not to institute proceedings but rather determine with legal advice that the Crown should institute prosecutions. The drafting in s 12(1) which refers to the Crown separately suggests that the NRAR is not to be regarded as ‘the Crown’. First the Crown as defined must not institute proceedings for offences under the natural resources management legislation unless the NRAR has made a determination under s 12(1) with legal advice required to be provided under s 12(2). Secondly, s 12(1) makes clear that the NRAR is to determine with the support of legal advice that any proceedings should be instituted by the Crown, not institute proceedings in its own name. If the NRAR is construed as the Crown the last three words of s 12(1) have no operative effect. Those three words suggest strongly that the NRAR is not the Crown for the purposes of instituting proceedings for offences under the natural resources management legislation.
The function of s 12 is to place a fetter on the State of NSW acting through the Crown Solicitor’s Office instituting proceedings for offences under the natural resources management legislation without a determination by the NRAR that such proceedings should be commenced by the Crown.
Gamage v Riashi [2025] NSWCA 84 (Gamage) supports this argument. In that case an officer of the Independent Commission Against Corruption (ICAC) was found not to have acted in an official capacity when he filed CANs commencing prosecutions under the Crimes Act 1900 (NSW) (Crimes Act) pursuant to s 173 of the CP Act.
The Second Reading Speech for the Natural Resources Access Regulator Bill 2017 (NSW) (NRAR Bill) (New South Wales Legislative Assembly, Natural Resources Access Regulator Bill 2017 Second Reading Speech (Hansard) 22 November 2017) (Second Reading Speech) supports this construction of the NRAR Act as it refers to the NRAR being an independent body advising the NSW Government and demonstrates proceedings for offences were to be instituted by the Crown.
Section 12(4) does not preclude a challenge to criminal proceedings on the basis that the prosecutor does not have power to institute the proceedings.
Gamage supports the Appellants’ approach, and is not relevantly distinguishable because the public officer definition considered in that case was ‘an officer or employee of a body declared by the regulations to be a public body for the purposes of this definition’ (par (f) of the definition of public officer in s 3 of the CP Act) instead of ‘an employee in the Public Service…’ (par (a) of that same definition) as the NRAR contends Mr Barnes is. In either case the person must be acting ‘in their official capacity’ for the commencement of the proceedings to be valid; Basten AJA at [14]-[48]. Just being a public servant is insufficient. Their power to commence must be related to their official functions.
Inferring the power to prosecute as a matter of construction is a significant matter. The basis for inferring the power to institute criminal proceedings is, according to the NRAR, because this is ‘necessary’ in order to pursue the NRAR’s objective as contained in s 10(a) of the NRAR Act. Section 10 is concerned with objectives, not functions (cf s 11). A function should not be implied from an objective. Secondly the suggestion that it is ‘necessary’ to imply a power to prosecute in order to ‘implement’ determinations made under s 12 of the NRAR Act is not correct. It may reasonably be assumed the Crown would not institute a prosecution without the NRAR having determined that such proceedings should be instituted. As contemplated by s 12 of the NRAR Act, the proceedings should be instituted by ‘the Crown’. Section 12(3) of the NRAR Act defines that term to be as defined in the Crown Proceedings Act. The NRAR draws attention to the fact that that definition also includes ‘any officer, employee or agent of the Crown’. Mr Barnes, as the CRO of the NRAR and as a public servant was therefore a person who is employed by the Government of NSW ‘in the service of the Crown’; s 20 of the GSE Act. The NRAR does not however challenge the submission made that NRAR is not itself a body that acts as ‘the Crown in right of’ NSW.
The issue therefore is whether Mr Barnes, being employed ‘in the service of the Crown’ is performing the same functions as the ‘Crown in right in NSW’ as defined in the CP Act. The Appellants submit that he is not. To reason otherwise would mean that while the NRAR is not a body that is the Crown in right in NSW, Mr Barnes, as a public servant who is working ‘in the service of the Crown’ for the NRAR would be. This would circumvent the decision by Parliament not to designate the NRAR as a body functioning as the Crown in right of NSW and mean that any function that Mr Barnes performed for the NRAR exceeds the powers given to the body he is performing work for. The NRAR’s contention (relying on s 20 of the GSE Act) would mean that any public servant working for any agency or statutory corporation would become the Crown in right of NSW simply by their status as a public servant. This cannot be correct. The NRAR has provided no authority to support this proposition.
Nor is it necessary that the NRAR commence proceedings. Other entities can represent the Crown as defined in s 3 of the Crown Proceedings Act. Through ss 4(3) and 17(2) of the NRAR Act there is an important separation between the NRAR as an independent regulator and the Minister and the Crown on the other hand. The powers exercised by the NRAR are statutory only and not the prerogative powers of the Crown. The function performed by the NRAR under s 12 is to advise the Crown as the body with power to bring criminal proceedings, not to institute criminal proceedings through a public servant employed to perform its functions.
Mr Barnes did not have the function of initiating prosecutions because the NRAR also did not have that function.
Three arguments are made, in the alternative, for why Mr Barnes could commence the three proceedings by CANs.
Firstly and primarily, Mr Barnes acted as an individual public servant in filing the CANs and is the Prosecutor, not the NRAR. Unlike an employee or officer of a specified entity Mr Barnes’ powers and responsibilities as a public servant were not confined by the particular functions or powers of the NRAR. By operation of s 8 of the NRAR Act and s 20 of the GSE Act Mr Barnes was at all relevant times employed by the Government of NSW in the service of the Crown. He was not an employee of NRAR. He also satisfied the expanded definition of Crown contained within s 12(3) of the NRAR Act. In commencing and maintaining the proceedings in the Local Court, Mr Barnes – in service of the Crown – was implementing a determination made by the NRAR under s 12(1) of the NRAR Act. The Crown is defined in s 12(3) by reference to the Crown Proceedings Act. Subsection (3) further extends that definition to include ‘any officer, employee or agent of the Crown’. In implementing this determination Mr Barnes was acting in his capacity as a public servant and therefore in his official capacity in carrying out what the NRAR had determined ought be carried out. Mr Barnes can do things in his capacity as a public servant which the NRAR cannot do; here, commence criminal proceedings which the NRAR has determined should be brought.
The NRAR’s functions in s 12 include that it must determine whether criminal proceedings should be commenced. Any decision about the functions of the NRAR is to be made under the authority of the independent board as required in s 6 of the NRAR Act.
Secondly, alternatively and as an intermediate position, an ability to authorise a public servant to implement determinations made by the NRAR under s 12 of the NRAR Act is reasonably necessary in pursuance of the NRAR’s principal objective ‘to ensure effective, efficient, transparent and accountable compliance and enforcement measures for the natural resources management legislation’; s 10(a) NRAR Act. The bringing of prosecutions determined by the NRAR to be appropriate by the CRO who must report to the NRAR’s independent board (s 8(2)(b) NRAR Act) is directly incidental to ‘maintaining public confidence in the enforcement of the natural resources management legislation’; s 10(b) NRAR Act. Its statutory powers do not confer express power but by necessary intendment extend power to do all things necessary to perform its functions which includes the functions in s 12. Mr Barnes is empowered as a result to commence prosecutions.
Gamage does not support the Appellants’ construction because, firstly, the relevant officer was an employee of a public body (ICAC) declared for the purposes of the par (f) definition of public officer in the CP Act. Mr Barnes is within par (a) of that definition. In Gamage if the ICAC did not have the power to prosecute criminal offences under the Crimes Act neither did its employee. Mr Barnes is not an employee of the NRAR. Secondly Parliament made very clear that the ICAC did not have powers to prosecute for corruption offences under the Crimes Act when the ICAC Act provisions informed by the Second Reading Speech were viewed.
Thirdly, the NRAR has an implied power to commence criminal prosecutions in any event. Its statutory power extends to the power to do all things necessary to perform its functions, including the express statutory powers conferred by s 12 of the NRAR Act. A further indicator of the implied power is its supervisory role as seen in s 12A of the NRAR Act. Section 12A confers a power on the NRAR to keep a register of information about enforcement action ‘taken by or on behalf of the NRAR under’ the WM Act. The type of information that may be included in the register includes the identity of a person who has been convicted of an offence under the WM Act.
Arguably the NRAR is also the Crown when the provisions in s 12 of the NRAR Act are considered. By virtue of s 13A(4)(b) of the Interpretation Act a reference to a statutory body representing the Crown includes a reference to a body declared to be a NSW Government Agency which includes the NRAR.
The CAN extracted in part above in [4] identifies the Prosecutor as Mr Grant Barnes CRO. The organisation nominated is the NRAR. Section 14 of the CP Act provides the mechanism whereby a summary criminal prosecution may be commenced in relation to an Act where no express right to institute proceedings is conferred by that Act on a specified person or group of persons. It is agreed that no express power to commence prosecutions under the WM Act is conferred on any person or entity. Consequently ss 172-174 of the CP Act apply to the commencement of summary matters. Under s 173 a public officer is authorised to commence summary criminal proceedings as provided in s 14, otherwise a registrar must sign a CAN as required by s 174. ‘Public officer’ is defined in s 3 of the CP Act. The particular aspect of the definition that arises for construction is whether as an employee in the Public Service (par (a) of the definition of public officer in the CP Act) Mr Barnes was acting ‘in an official capacity’ when he filed the CANs commencing the prosecutions under s 173.
Construction of the words ‘acting in an official capacity’ requires consideration of the natural and ordinary meaning of those words considered in their statutory context; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] (the Court); Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485; [2021] NSWCA 204 at [25]-[41] (Bell P). The term ‘acting in an official capacity’ is undefined in the CP Act. Its use aids in distinguishing persons acting in a private capacity, a distinction identified in Kang v Bishop *(*No 2) [2018] NSWSC 1073 at [29]. The statutory context requiring consideration is the NRAR Act as a whole, informed by other legislation concerning the Crown as legal entity inter alia.
The principal argument of the Appellants is that the NRAR does not have the implied function or power to commence criminal prosecutions of offences under the WM Act and consequently neither does Mr Barnes. The principal argument of the NRAR in this appeal is that Mr Barnes as an individual public servant acted in an official capacity when he filed the CANs, which ability to act is not limited by a finding that the NRAR has an implied capacity to commence criminal prosecutions. As already identified in [8] I infer that argument was not raised before the magistrate in the Local Court and unsurprisingly was not the focus of the Appellants’ primary argument in this appeal. It appears likely this argument is being raised for the first time in this appeal. No criticism of any party is intended by these observations. I am simply seeking to identify that the issues presented were more complex than before the Local Court and the magistrate does not appear to have been asked to determine the principal argument of the NRAR before me.
To address the principal arguments of the parties and address the two alternative and related arguments of the NRAR a close examination of the NRAR Act is necessary.
In order to first determine if the NRAR has the implied function of commencing prosecutions for offences under the natural resources management legislation as defined in the NRAR Act the overall provisions of the NRAR Act must be considered. The NRAR was established by the NRAR Act as a body corporate and NSW Government agency as specified in s 4. Enforcement powers are defined in s 3(1) to include any powers that may be exercised under that legislation in connection with the enforcement of that legislation, including (a) powers that may be exercised for the purpose of determining whether there has been compliance with or contravention of that legislation, or (b) the issuing of any notice, order or direction, or the imposition of any penalty or charge, under that legislation. Natural resources management legislation is also defined in s 3(1) and includes the NRAR Act and the WM Act inter alia.
The Board of the NRAR is established in s 5. Its role as specified in s 6 requires that any decision about a function of the NRAR must be made by or under the authority of the Board. Those functions include determining whether criminal proceedings ought to be commenced under s 12(1).
Functions of the NRAR are identified in s 11(1) and include inter alia (a) the preparation of strategies, policies and procedures relating to enforcement powers under the natural resources management legislation; (b) the provision of advice to the Minister on any matter relating to the administration of the natural resources management legislation; and (c) the provision of advice as requested by the Minister. Details of convictions in prosecutions for offences under the natural resources management legislation are to be published (subs (d)).
The principal objectives of the NRAR are identified in s 10 and are (a) to ensure effective, efficient, transparent and accountable compliance and enforcement measures for the natural resources management legislation; and (b) to maintain public confidence in the enforcement of that legislation.
As already identified above in the context of the role of the Board, s 12(1) specifies the NRAR’s function of determining whether proceedings for an offence under the natural resources management legislation should be instituted by the Crown. The NRAR must not make such a determination unless supported by legal advice (subs (2)).
Section 12A provides that the NRAR may keep and publish a register of information about water enforcement action. The specified actions do not include prosecutions. This potential function is additional to the function in s 11(1)(d) of publishing details of convictions in prosecutions for offences under the natural resources management legislation.
Underpinning the independence of the NRAR from the NSW Government in relation to the determination of whether criminal proceedings should be commenced is that under s 7(3)(b) the Minister cannot direct any determination by the NRAR whether proceedings for offences should be instituted inter alia. Otherwise under s 7(1) the Minister may give a written direction to the NRAR in relation to its functions if the Minister is satisfied that it is necessary to do so in the public interest.
Extrinsic materials such as second reading speeches may be considered as an aid to construction (s 34 Interpretation Act), as was done in Gamage. The Second Reading Speech for the NRAR Bill read by the relevant Minister on 22 November 2017 stated:
…
This bill delivers on the key building block of the Government response: The establishment of an independent Natural Resources Access Regulator. The regulator will be led by an independent board whose role is to determine whether the Government should institute proceedings for breaches of water legislation and to have oversight of all water compliance.
…
In addition to determining whether the Government should institute proceedings for breaches of water legislation, the board will have oversight of the regulator’s functions, including preparing strategies, policies and procedures, providing advice on the administration of compliance and enforcement matters, and publishing convictions in prosecutions.
…
Part 2, division 2, establishes the functions of the regulator. As I mentioned earlier, the Government has agreed with the Matthews report and accordingly has allocated the regulator a broad range of functions under the natural resources management legislation including preparing strategies, policies and procedures relating to enforcement powers; advising and reporting to the Minister or any relevant Minister on any matter relating to the administration of natural resources management legislation or any other advice or reports as the Minister may request; publishing details of convictions and prosecutions for offences; and any other functions imposed through the regulations or by other legislation.
Significantly the regulator will be the body that decides whether proceedings for any offence under natural resources management legislation should be instituted by the Crown. To ensure the regulator has sufficient resources to perform these functions part 3 enables the transfer of staff into WaterNSW who are performing compliance functions for the regulator. Importantly, these staff will retain rights to all entitlements and leave in this transfer. As I discussed earlier, this step is intended to provide an additional layer of transparency and independence to compliance and is no reflection on the work of WaterNSW.
As highlighted by the Appellants the Second Reading Speech supports the independent role of the NRAR as being to determine when the NSW Government being the Crown should commence prosecutions for breaches of natural resources management legislation, with specific reference made in the Second Reading Speech to water legislation. Prosecution is not identified as a function of the NRAR. The references in the Second Reading Speech to the NSW Government separately supports the construction of the NRAR Act contended for by the Appellants of the NRAR providing independent advice to the NSW Government about enforcement generally and in relation to the commencement of prosecutions specifically.
The various functions identified in ss 11 and 12 of the NRAR Act reflect an oversight role in relation to enforcement of the natural resources management legislation. That the function includes determination of whether criminal offences ought to be commenced underscores that oversight role. The absence of an express power to commence criminal proceedings viewed in the overall context of the NRAR Act further suggests that no such power is to be implied. That a register of information about water enforcement action taken by the NRAR or on its behalf under the WM Act may be kept also supports that finding in that the information which may be kept relates to penalties under particular provisions of the WM Act (ss 60G, 78, 109), recipients of penalty notices issued and recipients of directions issued under Pt 1 Ch 7 of the WM Act.
The broad terms of the NRAR’s objectives in s 10 do not provide a relevant context for finding the specific, and significant, function of commencing criminal proceedings is a necessary power. Other Crown entities can commence criminal proceedings if the NRAR cannot.
It is helpful to consider aspects of the reasoning in Gamage in the context of the ICAC Act. A key provision, which the NRAR Act lacks, was a conferral of incidental power in s 19(1) of the ICAC Act. That provision was one of the matters identified by Basten AJA in Gamage in finding that the ICAC did have implied power to commence offences for breaches of the ICAC Act in relation to the conduct of investigations by the ICAC. Another aspect of the reasoning resulting in that finding in Gamage was that the ICAC Act contained offence provisions (s 116). The NRAR does not have offence provisions and has no provision conferring incidental powers.
More is needed to find an implied power to commence criminal prosecutions than stating that it is necessary for the achievement of the NRAR’s objectives given their content. Basten AJA’s observations in Gamage referred to below at [59] concerning necessary powers for the exercise of stated functions were made in the context of the ICAC Act and reflect that different statutory context.
The NRAR submitted that it was the Crown for the purposes of the NRAR Act. As identified by the Appellants, s 12(1) which states ‘should be instituted by the Crown’ is strongly indicative that the NRAR is not the Crown. Section 12(3) states that a reference to the Crown in that section means the Crown as defined in the Crown Proceedings Act. That definition includes the NSW Government, a Minister of the Crown in right of NSW and a statutory corporation representing the Crown in NSW. The NRAR is not identified as one of those and is expressly established as a NSW Government agency in s 4. Section 17 also refers to the liability of the Crown existing separately from the NRAR. These references suggest that the NRAR is not the Crown for the purposes of the NRAR Act.
The Interpretation Act differentiates between a NSW government agency and a statutory body representing the Crown in s 13A(1) stating that both have the status, privileges and immunities of the Crown. Subsection (4) states that a reference to a NSW Government agency includes a reference to any body declared to be a statutory body representing the Crown, and vice versa. The NRAR Act provisions already identified immediately above suggest that the NRAR is not the Crown, displacing s 13A(4) of the Interpretation Act as provided for by s 5(2). Further support for that finding are the aspects of the NRAR Act which emphasise its independent oversight role in relation to the conduct of prosecutions by the NSW Government, further confirmed by the Second Reading Speech considered above in [48].
Applying my findings above I accept the Appellants’ primary argument and find that the NRAR’s secondary argument that directing the CRO to commence prosecutions is a reasonably necessary exercise of the NRAR’s objectives and its third argument that the NRAR has an implied power to commence criminal prosecutions are not established.
As a result of my finding above, the NRAR’s primary argument must be considered, namely that Mr Barnes as a public servant who is not employed by the NRAR can commence criminal proceedings regardless of whether the NRAR has such a function.
The Appellants argued that Mr Barnes’ functions are limited to functions which the NRAR can exercise and he was not able to issue the CANs as the NRAR did not have that relevant function. The Appellants relied on Gamage to argue that Mr Barnes was not acting in an official capacity. At issue in Gamage was whether an officer of the ICAC could under s 14 of the CP Act commence prosecutions for offences under the Crimes Act in relation to corrupt conduct and, separately, prosecutions for offences under the ICAC Act. The ICAC Act conferred no express power to commence prosecutions on any person in relation to any acts. The part of the definition of public officer in s 3(1) of the CP Act considered was par (f) ‘an officer or employee of a body declared by the regulations to be a public body for the purposes of this definition’. The ICAC was such a body. The officer contended that as he was purporting to commence proceedings as a public officer he was presumed to be acting in an official capacity pursuant to s 3(1) of the CP Act. Basten AJA stated (at [18]):
The initial qualification to the presumption (“[i]n the absence of evidence to the contrary”) indicates that the presumption is one of fact, rather than law… The presumption does not operate in circumstances where the “official capacity” does not extend to the institution of criminal proceedings because the agency does not have such a function. The powers of an individual officer cannot rise higher than the powers of the agency for which he or she purports to act.
Basten AJA (with whom Leeming JA and Griffiths AJA agreed) considered the objects and purpose of the ICAC Act and the second reading speech for the Independent Commission Against Corruption Bill 1988 (NSW) in construing whether the ICAC had an implied power to commence prosecutions in relation to the Crimes Act and, separately, breaches of the ICAC Act. His Honour undertook an extensive consideration of the functions (principal and other) and powers of the ICAC in light of its objects in the ICAC Act. The legislative objects and the principal functions of the ICAC were to investigate and communicate to appropriate authorities about corrupt conduct. That the ICAC was precluded from recommending prosecution or forming an opinion about such matters was inconsistent with having an implied power to prosecute; at [28]. The provision of incidental powers in s 19(1) that ‘the Commission had power to do all things necessary to be done for or in connections with, or reasonably incidental to the exercise of its functions…’ could not extend the purposes of a statute or the means for carrying the purposes into effect. Referring to powers as ‘necessary’ to the exercise of stated functions and specific powers conferred was consistent with the principle articulated in Shanahan v Scott (1957) 96 CLR 245 at 250; [1957] HCA 4. Instituting criminal proceedings for corrupt conduct was not necessary nor reasonably incidental to the functions of investigating and reporting; at [32]. This construction was supported by the second reading speech for the Independent Commission Against Corruption Bill 1988 (NSW) in which there was no reference to any prosecutorial function. Basten AJA found that no power to commence the Crimes Act prosecutions existed as the ICAC had no such function and consequently nor did an officer of the ICAC.
The ICAC was found to have power to prosecute for breaches of its own legislation in contrast to the Crimes Act. Offences in relation to operations of the ICAC are provided in s 116 of the ICAC Act. Such offences are separate from the investigation of corrupt conduct. They are temporally distinct because they only arise in the course of investigation. Steps taken to protect the integrity of its own investigation could readily fall within the scope of the incidental powers identified in s 19(1) of the ICAC Act; at [51]. The officer did have implied power to commence prosecutions in relation to breaches of the ICAC Act which impeded its functions as that did come within the ICAC’s functions.
The Appellants submit that there is no statutory construction reason to limit the application of [18] in Gamage to the context of a public officer under par (f) of the CP Act definition and that finding should also apply to Mr Barnes as a public officer under par (a) of that same definition. The Appellants focussed on the finding that the ICAC Act lacked the implied function of commencing prosecutions for corrupt conduct under the Crimes Act. I have already observed above that in Gamage the Court of Appeal held that the ICAC did have implied power to commence prosecutions for offences under the ICAC Act. Gamage was considering a different statutory context in light of a different statutory definition of public officer. That Mr Barnes has a different employment status to the ICAC officer in Gamage is highly relevant to the analysis of his role under the NRAR Act and whether he acted in an official capacity.
Mr Barnes is not an employee or officer of the NRAR. Mr Barnes is employed in the Public Service as provided by s 8(1) of the NRAR Act. Section 20 of the GSE Act provides that persons employed under Part 4 of the GSE Act (the Public Service) are employed by the Government of NSW in the service of the Crown. Under s 8(2)(a) of the NRAR Act as CRO he is responsible for the day to day management of the activities of the NRAR. Under s 6(2) any act done in the name of or on behalf of the NRAR under the authority of the Board is taken to have been done by the NRAR. Under s 12(1) the NRAR is to determine if criminal proceedings should be commenced by the Crown. The Crown is defined in subs (3) in accordance with the Crown Proceedings Act, which includes the Government of NSW, and includes any officer, employee or agent of the Crown.
As the NRAR submitted the finding in Gamage at [18] does not apply to Mr Barnes because he is a public servant (par (a) of the CP Act public officer definition) and acted as a representative of the Crown in commencing the proceedings as a public officer. The structure and provisions of the NRAR Act enabled Mr Barnes to act as he did on an individual basis. Mr Barnes’ ability to commence prosecutions is not at large just because he is a public servant, contrary to the argument of the Appellants. Mr Barnes must act within the framework of the NRAR Act.
Mr Barnes was acting as the Crown in carrying out the determination of the NRAR under s 12(1) when he filed the CANs naming the Appellants pursuant to s 173 of the CP Act. Consequently he acted in an official capacity.
The Appellants’ appeals are not upheld and the appeals will be dismissed.
The Court orders:
in proceedings 2025/00132025, 2025/00132026, 2025/00132027, 2025/00132028, 2025/00132029, 2025/00132030, 2025/00132031, 2025/00132032, 2025/00132033, 2025/00132034, 2025/00132035, 2025/00132036:
(i) The amended summons commencing an appeal filed on 18 July 2025 is dismissed. (ii) The Appellants must pay the Respondent’s legal costs as agreed or assessed.
(i) The amended summons commencing an appeal filed on 18 July 2025 is dismissed. (ii) The Appellants must pay the Respondent’s legal costs as agreed or assessed.
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Added G Lewer as Mr Odgers' junior to the Representation section on the coversheet.
Green Leaf Australia Group Pty Ltd
Barnes, Chief Regulatory Officer, Natural Resources Access Regulator [2025] NSWLEC 109
(2012) 250 CLR 503
(1957) 96 CLR 245
(2021) 393 ALR 485