The Act defines several key terms in s 3(1). Regional New South Wales means any part of the State outside the metropolitan areas of Sydney, Newcastle and Wollongong. This definition is binary: any location within those three metropolitan areas is excluded, no matter how rural its character; everything else qualifies. The boundaries are not further described, which may create some ambiguity at the margins.

Nominated regional infrastructure project means an infrastructure project jointly nominated by the Premier and the Minister for Regional New South Wales under s 5. The nomination is a joint act; neither office holder can act alone. The criteria for nomination are that the project will improve economic development in regional NSW and will primarily benefit regional NSW (s 5(2)). ‘Primarily benefit’ is not defined, giving the nominators wide discretion.

Approved regional infrastructure project means a nominated regional infrastructure project that the Treasurer has approved under s 6. Approval is a separate decision. The Treasurer must consider consistency with the Fund’s purpose but may also take into account any other matter (s 6(3)). There is no requirement for the Treasurer to give reasons or to publish approval decisions.

The Fund is the Snowy Hydro Legacy Fund, required to be established in the Special Deposits Account (s 7). The Special Deposits Account is a consolidated account used for holding money subject to specific trusts or purposes, so the Fund is not a separate bank account but a notional pool within the State’s broader accounting framework.

GSF agency has the same meaning as in the Government Sector Finance Act 2018. That Act classifies certain government entities for financial management purposes. The relevance here is that the investment power in s 11 depends on whether the Minister administering this Act is a GSF agency for Part 6 of that Act.

Public Service agency is defined by reference to the Government Sector Employment Act 2013. This matters for the delegation power in s 12: the Premier, the Minister for Regional New South Wales, or the Treasurer may delegate any of their functions under the Act (except the power of delegation itself) to the head of a Public Service agency or any other person employed in such an agency.

The Act does not define ‘infrastructure project’. This is a significant gap. It could include roads, rail, water, energy, telecommunications, schools, hospitals, or community facilities. The absence of a definition leaves the scope of eligible projects entirely to the discretion of the nominators and the Treasurer. Similarly, ‘funding’ is defined expansively to include funding the planning, selection, implementation and delivery of a project (s 3(1), definition of ‘funding’). This means the Fund can be used for early-stage feasibility studies and project selection, not just construction.

The Act directly affects only a small number of government actors and institutions. The Premier, the Minister for Regional New South Wales, and the Treasurer each hold powers and duties under the Act. Heads of Public Service agencies and their employees may receive delegated functions (s 12). The Treasury, as the administrative home of the Fund, will manage payments, investments, and annual reporting. The Minister administering the Act (not separately defined; presumably the responsible portfolio Minister) may have investment responsibilities under the Government Sector Finance Act 2018 if that Minister is a GSF agency.

Indirectly, the Act affects the residents and businesses of regional New South Wales. The Fund is intended to finance infrastructure projects that benefit those areas. Whether a particular community benefits depends entirely on the nomination and approval process. There is no statutory right for any person or local government to apply for funding, no criteria for project selection beyond the broad economic development and primary benefit test, and no appeal mechanism if a project is not nominated or approved. The political process therefore determines who receives funding.

Local councils, regional development authorities, and private proponents seeking infrastructure spending will need to lobby the Premier and the Minister for Regional New South Wales to secure a joint nomination. Even after nomination, the Treasurer’s approval is discretionary. This creates a concentrated benefit to those who can successfully navigate the political process, with the costs borne by taxpayers generally (since the Fund is ultimately drawn from consolidated revenue).

The Act binds the Crown in right of New South Wales and, to the extent of legislative power, the Crown in all other capacities (s 14). This means the Act applies to NSW government agencies and may also affect Commonwealth instrumentalities if they own assets or undertake projects in NSW that fall within the Act’s scope - though in practice the Fund is likely to be confined to state projects.

No private person or entity is subject to any duty or penalty under the Act. The Act imposes no obligations on businesses, individuals, or non-government organisations. Regulatory compliance is not an issue for the private sector, unless a firm contracts with the government to deliver an approved project and the funding is drawn from the Fund.

The Act imposes duties on three office holders. The Premier and the Minister for Regional New South Wales have the power to jointly nominate infrastructure projects (s 5(1)), but they must consider that the project will improve economic development in regional NSW and primarily benefit regional NSW before they may nominate (s 5(2)). This is a condition on the exercise of the power; a nomination made without that consideration would arguably be invalid. The duty to notify the Treasurer in writing of any joint nomination is mandatory (s 5(4)).

The Treasurer has a duty, when determining whether to approve funding for a nominated project, to take into account whether funding the project is consistent with the purpose of the Fund (s 6(2)). That duty is qualified: it does not limit other matters the Treasurer may take into account (s 6(3)), and it does not prescribe how much weight consistency must be given. The Treasurer also has a duty to publish information annually detailing payments from the Fund in the previous financial year (s 13(1)). The form and manner are at the Treasurer’s discretion (s 13(2)).

The Act creates no rights for any person. No individual, company, local council, or community organisation has a right to apply for funding, to be considered for funding, or to challenge a decision not to nominate or approve a project. The Act does not create a cause of action for failure to nominate, improper consideration, or delay. The only potential legal avenue would be judicial review of a decision that was made contrary to the Act - for example, if the Treasurer approved a project without considering consistency with the Fund’s purpose. But even then, standing would be difficult for a private litigant who cannot show a special interest beyond that of a general taxpayer.

The Crown is bound by the Act (s 14), which means the State is subject to its provisions. But since the Act imposes duties only on the Premier, Minister, and Treasurer, binding the Crown adds little. It may prevent the Crown from claiming sovereign immunity in any rare legal proceeding brought to enforce the Act.

The Fund itself has no right to compel payments in or out. Payments into the Fund depend on appropriations by Parliament or Treasurer’s directions (s 9). Payments out require an approved project or administrative expenses. The Fund is a passive receptacle.

The Snowy Hydro Legacy Fund Act 2018 contains no penalty provisions. There are no fines, imprisonment terms, or civil penalties for any person, whether a government official or a private party. The Act does not create an offence for misuse of Fund money, although such misuse would likely be caught by other laws such as the Crimes Act 1900 (NSW) or the Public Finance and Audit Act 1983 (now largely replaced by the Government Sector Finance Act 2018).

Enforcement of the duties under the Act is primarily political. The annual report requirement (s 13) provides transparency: the Treasurer must publish details of payments from the Fund. If a payment is made for a project that has not been properly nominated and approved, the report would reveal it, and parliamentary or media scrutiny could follow. The Act does not require the report to include reasons for decisions or details of projects that were nominated but not approved.

The only legal enforcement mechanism would be judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the common law, but neither is likely to be available. The decisions to nominate and approve are likely to be non-justiciable policy decisions or at least subject to such broad discretion that a court would be reluctant to intervene. Even if a decision were reviewable, the lack of a duty to give reasons, the wide criteria, and the absence of any right to be considered mean that a successful challenge would be extremely difficult.

The Act binds the Crown (s 14), which means the State cannot claim immunity if proceedings were brought. But no proceedings have been reported (see Litigation history below), and the structure of the Act makes litigation improbable. The Schedule 1 savings and transitional provisions allow regulations to include provisions that take effect before publication, but only to the extent they do not prejudicially affect any person other than the State or an authority of the State (Sch 1 cl 1(4)). This protects private parties from retrospective adverse effects but does not create enforcement rights.

In summary, the Act relies on internal government accountability and public reporting rather than external enforcement. The absence of penalties reflects the Act’s character as a machinery measure governing executive spending decisions.

The Act interacts with several other NSW statutes. Most prominently, it references the Government Sector Finance Act 2018. The definition of GSF agency in s 3(1) adopts that Act’s meaning. Section 11’s investment power splits depending on whether the Minister administering this Act is a GSF agency for Part 6 of the Government Sector Finance Act 2018. If so, investments must follow the rules in that Part; if not, the Treasurer may approve any investment. Section 9(1) was amended by the Government Sector Finance Act 2018 to add references to money appropriated for services used for approved projects and money directed by the Treasurer from general appropriations. Section 16, which originally contained transitional provisions relating to the Government Sector Finance Act 2018, was repealed by the Statute Law (Miscellaneous Provisions) Act 2019.

The Act also references the Government Sector Employment Act 2013 for the definition of Public Service agency (s 3(1)). This definition is used in the delegation power (s 12), which allows delegation to the head of a Public Service agency or any person employed in one.

The Fund is established in the Special Deposits Account (s 7). That account is governed by the Government Sector Finance Act 2018 (formerly the Public Finance and Audit Act 1983). The rules for payments into and out of the Special Deposits Account, and for accounting and reporting, will apply to the Fund. The Act’s own payment provisions (ss 9, 10) override the general rules to the extent of any inconsistency.

The Act binds the Crown (s 14). It is therefore subject to any laws that bind the Crown, but it does not override other laws unless there is inconsistency. The regulations power (s 15) allows the Governor to make regulations consistent with the Act. Such regulations could interact with the Government Sector Finance Act 2018 and other financial management legislation.

The Interpretation Act 1987 applies generally (see note to s 3(1)). This means standard rules about the interpretation of legislation, including the use of headings and notes, apply. Section 3(2) clarifies that notes do not form part of the Act, which limits their legal effect.

The Act does not override or amend any specific infrastructure funding legislation, such as the Restart NSW Fund Act 2011 or the Regional Development Act 2016. It operates alongside those schemes. The Treasurer could potentially fund a project from both the Snowy Hydro Legacy Fund and another source, though the Act does not address duplication. The Act does not create a priority among funding sources.

The repeal of s 16 (original transitional provisions) in 2019 means that any savings or transitional matters are now dealt with by Schedule 1, which allows regulations to make such provisions (Sch 1 cl 1). This is a common approach.

The Act was originally enacted in 2018 and has been amended three times. The first amendment was by the Government Sector Finance Act 2018 (No 38 of 2018) on the same day it commenced. Section 16 of that amending Act made two changes. First, it inserted a new subsection (2) into s 9, allowing pre-commencement appropriations to be paid into the Fund (s 9(2)). Second, it substituted a new s 11 for the original investment provision. The original s 11 had simply allowed the Treasurer to invest money in the Fund in any way the Treasurer thought fit. The substituted provision tied the investment power to the Government Sector Finance Act 2018, reflecting the new financial management framework. This amendment took effect from the commencement of Division 6.4 of the Government Sector Finance Act 2018, as per s 2(2) of the Fund Act.

The second amendment was by the Statute Law (Miscellaneous Provisions) Act 2019 (No 1 of 2019), Schedule 3, which repealed s 16 of the Fund Act. That section had originally contained provisions about the relationship with the Government Sector Finance Act 2018, but it became spent and was removed as part of a routine statute law revision.

The third and most recent amendment was by the Statute Law (Miscellaneous Provisions) Act 2024 (No 47 of 2024), Schedule 1.22. This made consequential changes to ss 3, 5, 6, and 12 to update references from simply ‘the Minister’ to ‘the Minister for Regional New South Wales’ and to insert references to the Premier. This reflects a reorganisation of ministerial responsibilities after the 2023 state election, where the separate portfolio of Minister for Regional New South Wales was created. Previously, the Act had referred only to ‘the Minister’ (defined as the Minister administering the Act, which may have changed). The 2024 amendment also added the Premier as a joint nominator alongside the Minister for Regional New South Wales in s 5, and adjusted the delegation provision in s 12 accordingly.

No other amendments have been made. The Act remains largely in its original form, with the 2024 changes clarifying the nomination process and updating terminology.

There is no reported litigation under the Snowy Hydro Legacy Fund Act 2018. A search of NSW case law databases reveals no judgments that cite or interpret the Act. This absence is unsurprising given the Act’s structure. As discussed under Penalties and enforcement, the Act creates no private rights and imposes no penalties. The decisions it governs - nomination and approval of infrastructure projects - are political and discretionary, making judicial review unlikely.

Potential legal issues that could theoretically arise include a challenge to the validity of a nomination or approval on the ground that the decision-maker failed to consider required criteria (s 5(2) or s 6(2)). However, the criteria are broad and subjective. A court would likely find that the decision-maker is the sole judge of whether a project ‘will improve economic development’ or ‘primarily benefit regional New South Wales’. The Treasurer’s duty to consider consistency with the Fund’s purpose is equally flexible. Even if a decision were reviewable, a plaintiff would need standing. A local council denied funding might have standing, but the Act gives no right to be considered, so the decision not to nominate or approve would not be a decision affecting the council’s legal interests.

Another possible avenue is a challenge to a payment from the Fund that was made without a proper approval under s 6. If, for example, the Treasurer paid money for a project that had never been approved, that would be ultra vires. Any person with a sufficient interest - perhaps a taxpayer - could bring proceedings for an injunction or declaration. However, the State could argue that s 10(b) allows payments for administrative expenses, and s 10(c) allows payments directed by other laws, so the scope for unauthorised payments is limited.

The absence of litigation also reflects the political nature of the Fund. Disputes over infrastructure spending are typically resolved through political channels, not courts. The Act’s broad discretion insulates decisions from legal challenge.

There is no indication that the Act has been the subject of a constitutional challenge, a complaint to the Ombudsman, or an ICAC investigation.

Several features of the Act may catch the unwary reader. First, s 8(2) states that ‘it is the intention of Parliament that the total payments from the Fund for approved regional infrastructure projects will be equivalent to the value of the proceeds of the sale by the State of its interest in Snowy Hydro Limited to the Commonwealth.’ This is a statement of intention, not a legal obligation. If the Fund pays out less than the sale proceeds, or if the money is used for administrative expenses rather than projects, there is no breach of the Act. The provision appears designed to reassure regional communities that the sale proceeds will be spent on them, but it creates no enforceable right.

Second, the definition of ‘regional New South Wales’ is exclusionary - it is defined as any part of NSW outside Sydney, Newcastle, and Wollongong. However, it does not define the boundaries of those metropolitan areas. Suburbs that have been recently absorbed into Greater Sydney but are still outside the historical Sydney metropolitan area could be contested. The Act also does not account for regional cities that are part of a metropolitan area (e.g., Newcastle includes coastal suburbs; does the definition exclude the entire local government area of Newcastle or just the urban core?). This ambiguity could be resolved by regulation or administrative practice.

Third, the Treasurer’s approval power under s 6 is discretionary and uncabined beyond s 6(2). The Treasurer may refuse approval for any reason, including reasons unrelated to the Fund’s purpose. There is no requirement to give reasons, no appeal, and no time limit. A project could be nominated and then sit without approval indefinitely.

Fourth, administrative expenses of the Fund may be paid from the Fund (s 10(b)). The Act does not cap these expenses. Over time, administrative costs could reduce the amount available for projects. This is a hidden cost that the annual report might reveal, but the Act does not require a breakdown.

Fifth, the investment power in s 11 is not directed to maximising returns. The purpose of the Fund is to spend money on infrastructure, not to grow the corpus. Nevertheless, if the Fund holds money for a period, the investment power exists. The Treasurer could choose low-yielding investments, reducing the real value of the Fund.

Sixth, the delegation power (s 12) is very broad. Functions can be delegated to any person employed in a Public Service agency, not just senior officers. This raises the risk that decisions with significant financial implications could be made by junior staff. The Act does not require the delegate to be named or the delegation to be published.

Seventh, the Act does not require any cost-benefit analysis, business case, or public consultation before a project is nominated or approved. The only substantive criterion is that the project ‘will improve economic development’ and ‘primarily benefit regional NSW’. These are vague terms that could encompass almost any infrastructure project.

Eighth, pre-commencement appropriations can be paid into the Fund (s 9(2)). This means that money appropriated before the Act commenced (in 2018) could still be directed to the Fund, potentially circumventing ordinary appropriation processes if not carefully tracked.

Finally, the annual report (s 13) is minimal - it must detail payments from the Fund, but the form and manner are at the Treasurer’s discretion. The report could be a single line item in a larger document. There is no requirement to list approved projects, explain why projects were chosen, or compare spending against the sale proceeds.

Compliance with the Snowy Hydro Legacy Fund Act 2018 is relevant only to NSW government entities. The Act imposes no obligations on private persons, so no compliance burden falls on businesses, individuals, or non-government organisations. However, anyone seeking to benefit from the Fund - such as local councils, regional development authorities, or infrastructure proponents - should understand the process.

For the Premier and the Minister for Regional New South Wales: To comply with s 5, any joint nomination of an infrastructure project must be based on a genuine consideration that the project will improve economic development in regional NSW and primarily benefit regional NSW. A record of that consideration, even if informal, would be prudent. The nomination must be notified in writing to the Treasurer. Failure to do so means the project is not a ‘nominated regional infrastructure project’ under the Act. The nomination can be for a part of a larger project (s 5(3)). There is no prescribed form for the nomination.

For the Treasurer: Before approving funding, the Treasurer must take into account whether funding the project is consistent with the purpose of the Fund (s 6(2)). This requires at least a mental consideration; a written record would assist in demonstrating compliance if ever challenged. The Treasurer may also consider other matters. The approval decision should be documented, though the Act does not require reasons to be published. The Treasurer must also ensure that any payments from the Fund are made only for purposes authorised by s 10: approved projects, administrative expenses, or as directed by law. A payment for an unapproved project would be ultra vires.

For the administering Minister and Treasury officials: If the Minister is a GSF agency under the Government Sector Finance Act 2018, the investment of Fund money must comply with Part 6 of that Act. If not, the Treasurer must approve any investment. Either way, the investment decisions should be recorded.

For annual reporting: The Treasurer must publish information detailing payments from the Fund for the previous financial year (commencing 1 July) (s 13). Compliance is at the Treasurer’s discretion as to form and manner. The report could be a web page, a PDF, or part of the Annual Report on State Finances. The Act does not specify what information must be included beyond ‘payments from the Fund’. For transparency, it would be good practice to list each approved project and the amount paid, but not strictly required.

For delegation: Any delegation under s 12 must be in writing and can only be to the head of a Public Service agency or any person employed in a Public Service agency. The power of delegation itself cannot be sub-delegated. The delegate must exercise the function in accordance with the Act. The principal remains responsible.

For the Governor: Regulations may be made under s 15 for matters required or convenient to carry out the Act. Such regulations must not be inconsistent with the Act.

For anyone with no role in the NSW government: There is nothing to do. The Act does not require registration, applications, fees, or reporting. To seek funding for a project, the only avenue is political engagement with the Premier and the Minister for Regional New South Wales. There is no formal application process. Those seeking funding should be aware that the Treasurer’s approval is discretionary and that the Fund’s purpose is limited to improving economic development in regional NSW.