Water Management Amendment Act 2018

The amendments introduce and clarify a small set of legal concepts and mechanisms that interplay in regulatory decision‑making, evidentiary process and delegated regulation.

• Ministerial authorisation to publish operational information (s 87D). The key concept is a Minister‑approved publicly accessible website as the place where legally relevant operational information about taking water may be published. The Minister’s authorisation is discretionary: the section states that “the Minister may authorise” publication (s 87D(1)), not that the Minister must do so. The published categories are (a) permissibility tied to specific licences or management plans, (b) quantification of how much water may be taken at particular times, and (c) flow and level data including gauge readings (s 87D(1)(a)-(c)).

• Legal effect of published information (s 87D(2)-(3)). The statute creates a legal shortcut: a person is “taken to be permitted” to take water in accordance with a plan or licence if two conditions are met , (a) the person is entitled to take water under that plan or licence, and (b) the person takes water in accordance with information published under s 87D (s 87D(2)). The section also clarifies that it does not override other licence conditions that are not the subject of published information, nor prevent taking that is otherwise permitted (s 87D(3)).

• Evidentiary certificates and their new contents (s 367 additions). Section 367 allows an authorised certificate to state various facts as evidence in proceedings. The inserted items (w)-(z) permit certificates to specify that information was published or not under s 87D, that measurements or gauge readings were as published, that water was or was not taken in accordance with published information, and that a quantity of water was determined by the Minister under s 60G(3). These certificates are intended to serve as admissible proof of those facts.

• Rebuttable presumption concerning basic landholder rights (s 367B insertion). The new presumption states that if water is being or has been taken from a water source by the holder of an access licence, this fact gives rise to a rebuttable presumption that the water was not taken pursuant to a basic landholder right (s 367B(e1)). This converts a factual point into a presumption in proceedings, shifting evidential dynamics.

• Crown immunity for specified actions (s 398(2A)), and expanded immunity coverage to include a NSW government agency (s 398(3)(d)). The Crown is insulated from actions, liabilities and claims arising from anything done under s 391B or regulations made under that section. The notes in s 398 itself draw a distinction: liabilities of other persons are dealt with under s 397.

• Delegated regulation power for transfer of metering equipment and consultation schemes (ss 399A-399B). These are enabling powers; they do not themselves set the terms of transfer or consultation but permit regulations to do so, including ancillary matters, removal of equipment where offers are declined, notification, and mediation processes.

• Removal of driller licensing and related regulatory text in the Water Act 1912 (sch 2 items 1-3). The physical licensing requirement for drillers (s 118A) is omitted, and the specified regulation provision s 129(1)(g) and the parenthetical exception in s 129A are removed. The effect is the statutory removal of those named provisions from the 1912 Act text as supplied.

Each concept ties to specific sections: s 87D for publication/permissibility; s 367(2)(w)-(z) for evidentiary certificates; s 367B(e1) for the presumption; s 398(2A) and (3)(d) for immunity; ss 399A-399B for delegated powers; and sch 2 items 1-3 for Water Act 1912 omissions.

These amendments change legal positions and administrative powers relevant to a defined set of actors. The text itself identifies who is placed into new or altered positions.

• The Minister (the portfolio Minister). The Minister may authorise publication on a Minister‑approved publicly accessible website (s 87D(1)), and has the role of approving the website. The Minister also has authority under existing Act provisions to determine quantities (s 367 additions reference Minister determinations under s 60G(3)), and regulations enacted under ss 399A-399B will be made by the executive, acting via delegated instruments.

• Access licence holders and persons otherwise “entitled to take water” under applicable plans or licences. The new s 87D(2) specifically addresses access licence holders or other entitled persons by saying such a person who takes water in accordance with published information is “taken to be permitted” to do so. The rebuttable presumption in s 367B(e1) treats it as a relevant fact when water is being or has been taken by an access licence holder.

• Holders of approvals and “other persons” who may be offered transfer of ownership of metering equipment. Section 399A provides that regulations may provide for transfer of ownership from Water NSW or the Ministerial Corporation to holders of approvals or other persons; that group is therefore within the class who may be offered or receive ownership, and may inherit related property, rights, assets and liabilities or be subject to removal obligations where offers are not taken up.

• Owners and occupiers of land, and other persons affected by environmental water releases. Section 399B designates these persons as parties who may be the subject of consultation, notification and mediation schemes under regulations governing environmental water releases.

• Water NSW and the Ministerial Corporation. These bodies are named as potential transferors of metering equipment and associated property, rights, assets and liabilities (s 399A(1)).

• The Crown and NSW government agencies. Section 398(2A) immunises the Crown from certain actions arising from conduct under s 391B or regulations under that section, and s 398(3)(d) adds “a NSW government agency” to the list at the end of s 398(3), extending immunity‑style protection to those agencies.

• Persons relying on basic landholder rights. The insertion into s 367B creates a statutory presumption adverse to the assertion that water taken by an access licence holder was taken pursuant to a basic landholder right.

• Drillers and persons regulated under the Water Act 1912. The omission of s 118A (drillers to be licensed) and related regulatory provisions in sch 2 affects anyone who was subject to or relied upon those licensing provisions. The text of the supplied instrument removes that statute provision and related regulatory cross‑referencing.

• Parties to enforcement proceedings under the Water Management Act. The evidentiary certificate additions to s 367 expand the types of facts that may be established by certificate, affecting prosecutors, defendants, regulators, licence holders and courts/adjudicators who will receive such certificates.

The Act’s changes are primarily targeted at administrative actors (the Minister, Water NSW, the Ministerial Corporation) and regulated stakeholders in water management (access licence holders, owners/occupiers affected by environmental releases), with secondary effects on legal processes (evidentiary presumptions and certificates) and on individuals previously regulated under the Water Act 1912 licensing scheme for drillers.

The amendments create a mix of discretionary powers for the executive and statutory effects that alter rights and evidentiary positions. The key duties and rights established by the text are these.

• Ministerial discretion to authorise publication; no express obligation to publish. Section 87D(1) uses permissive language, stating “The Minister may authorise the publication” of specified categories of information on “a publicly accessible website approved by the Minister.” This is a power, not a mandatory duty. The Minister therefore controls whether and where the operational information becomes publicly available.

• Conditional statutory permission to take water where publication and entitlement align. Section 87D(2) confers a statutory status: where a person is entitled to take water under a management plan or licence and takes water in accordance with information published under s 87D, that person is “taken to be permitted” to take water in accordance with the plan or licence. This constructs a two‑part test (entitlement plus compliance with published information) that creates an affirmative statutory permission; it functions as a legal basis for taking water in those circumstances.

• Preservation of other licence conditions and other legal permissions. Section 87D(3) establishes limits. It explicitly preserves licence conditions that are not the subject of published information: s 87D does not permit contravention of other licence conditions. It also does not prevent a person from taking water if otherwise permitted by a licence or the Act. Thus s 87D operates alongside existing obligations rather than wholly supplanting them.

• Evidentiary function conferred on Ministerially or agency‑issued certificates. The addition to s 367(2) allows certificates to state publication status, measurement data, conformity with published information, and Minister determinations of quantity under s 60G(3). These items may be tendered as evidence in proceedings; the legislature thus permits the use of certificates to prove discrete facts without requiring live testimony or the production of the original data source.

• Rebuttable presumption on basic landholder rights. The addition to s 367B (e1) means that, in proceedings, proof that an access licence holder has been taking water gives rise to a presumption that the water was not taken under a basic landholder right. The presumption is rebuttable, so the evidential burden shifts but can be met by contrary evidence.

• Crown immunity for specified acts under s 391B and regulations made under that section. Section 398(2A) provides that the Crown is not subject to any action, liability (including defamation), claim or demand arising as a consequence of anything done under or for the purposes of s 391B or a regulation made under that section. The text includes a note that liabilities of other persons are dealt with under s 397, signalling that immunity is confined to the Crown and does not automatically extend to private parties.

• Regulatory powers for transfer of metering equipment and consultation schemes. Sections 399A and 399B are enabling provisions for subordinate legislation. Regulations may create a transfer scheme for ownership of metering equipment and may create a consultation/negotiation/mediation scheme for environmental water releases, including details of application, notification and mediation. The content of those duties and rights will therefore depend on what the regulations provide.

• Removal of statutory driller licensing requirement. In the Water Act 1912, the omission of s 118A removes a statutory rule that required drillers to be licensed. The legislative duty to be licensed is therefore eliminated in the statutory text supplied; any remaining licensing obligations would need to be found elsewhere (the amended text itself shows the removal).

Practical legal consequences follow: access licence holders may rely on published data where the Minister has authorised publication (s 87D(1)-(2)); regulated persons and litigants will need to be attentive to the new evidentiary certificates (s 367 additions) and to the presumption about basic landholder rights (s 367B(e1)); the Crown’s exposure to claims arising under s 391B is curtailed (s 398(2A)); and the content of transfer and consultation schemes will be produced by regulations under ss 399A-399B.

The supplied text does not itself specify new monetary penalties or criminal offences. The Act instead alters evidentiary and procedural tools used in enforcement, and creates regulatory capacity that may be used to impose obligations and remedial mechanisms. The enforcement and penalty implications should be read from the provisions that were amended or inserted.

• Use of evidentiary certificates to support enforcement proceedings. By expanding s 367(2) to allow certificates to state publication status, flow and level data, conformity with published information, and Minister determinations of quantity (s 367(2)(w)-(z)), the Act facilitates proof of facts that enforcement agencies or prosecutors would rely on in proceedings. Certificates of these facts are admissible as prima facie evidence of those matters (the statutory scheme treats certificates as evidence in the parent provision). That lowers the practical cost and evidentiary burden of proving operational facts in administrative or court proceedings.

• Rebuttable presumption shifts evidential burdens. Section 367B(e1) introduces a presumption that water taken by an access licence holder was not taken pursuant to a basic landholder right. In enforcement or civil proceedings where a party asserts a basic landholder right, the presumption requires that party to adduce evidence to the contrary, changing the tactical and evidential posture of disputes.

• Statutory permission under s 87D(2) as a legal defence or compliance test. The “taken to be permitted” wording in s 87D(2) creates a statutory benchmark. For enforcement purposes, an access licence holder who can show entitlement under a plan or licence and that the water was taken in accordance with published information can invoke the statutory construct as supporting lawful taking. Conversely, where licence conditions not published under s 87D are contravened, s 87D(3)(a) clarifies that publication does not authorise breaches of un‑published licence conditions.

• Crown immunity narrows potential causes of action. Section 398(2A) removes the Crown as a defendant for actions, liabilities (including defamation), claims or demands arising from anything done under s 391B or a regulation made under that section. That reduces the universe of parties that can be sued in relation to actions taken under s 391B, though s 397 continues to address liability of other persons. Enforcement actions against non‑Crown parties remain available under the Act.

• Delegated regulations can create enforcement obligations. Sections 399A and 399B empower the executive to make regulations that could create enforceable duties , for example, regulations dealing with the transfer of metering equipment could set obligations on transferees or lapsing obligations where offers are not taken up; consultation schemes under s 399B could prescribe mandatory notification or mediation steps before certain environmental releases. The precise enforcement consequences will depend on the content of any regulations made under these powers.

• Removal of driller licensing alters regulatory enforcement landscape. The omission of s 118A and related regulatory text in the Water Act 1912 eliminates the statutory licensing requirement recorded in the supplied text; that change alters regulatory enforcement options with respect to drillers (for example, offences tied to operating without a licence under that specific provision would no longer be present in the amended text). The supplied instrument does not reintroduce alternative offences or penalties.

In short, the Act strengthens administrative proof by permitting certificates and creates procedural presumptions that influence litigation and enforcement strategy. It confines Crown liability for certain actions and opens regulation as the vehicle for creating binding transfer and consultation rules, which may themselves include compliance mechanisms and penalties when enacted.

The amendments are expressed as insertions and omissions to existing Acts; their interaction with other statutory provisions follows from the structure of the Water Management Act 2000 and the Water Act 1912 as amended. The supplied text itself references other sections and preserves cross‑references.

• Operative relationship to the Water Management Act 2000. All inserted sections (s 87D, s 367 additions, s 367B addition, s 398(2A) and (3)(d), ss 399A-399B) are part of the Water Management Act 2000 amendment schedule in the supplied instrument. The new s 87D ties directly to management plans, access licences and “any other specified requirement of or under this Act” (s 87D(1)), so it interacts with existing plan and licence regimes. The evidentiary changes to s 367 and s 367B operate within the Act’s existing evidentiary and proceedings framework.

• Cross‑reference to s 60G(3). One of the new certificate items (s 367(2)(z)) specifically allows certification that a quantity of water taken was determined by the Minister in accordance with s 60G(3). That shows an explicit interaction with the s 60G regime for Minister determinations of quantity. Any use of such certificates in proceedings will therefore directly link enforcement or civil claims to Ministerial determinations under s 60G(3).

• Interaction with s 391B and regulations made under s 391B. Section 398(2A) immunises the Crown from liability arising from actions under s 391B or regulations under that section. The text therefore creates a protective relationship between s 391B‑based activity and Crown immunity. The Act does not remove liability for non‑Crown persons where applicable; the note to s 398 points to s 397 as dealing with liability of other persons.

• Delegated legislation to define operational details. Sections 399A-399B are enabling provisions for regulations. The actual operational interaction , for example ownership transfer processes, asset/liability allocation, removal of equipment, notification regimes and mediation procedures , will be shaped by regulations that sit subordinate to the Water Management Act. Those regulations will interact with corporations law, property law and contract law when they allocate assets, liabilities and rights, and with dispute resolution regimes where mediation is mandated.

• Amending the Water Act 1912. The omission of s 118A and changes to s 129 and s 129A in the Water Act 1912 remove a statutory licensing duty for drillers and excise a regulatory provision. The amendments therefore interact with any other statutes, regulations or licensing frameworks that previously referenced the omitted provisions. Where other instruments still reference the omitted provisions, those references may need to be corrected or interpreted in light of the omissions.

• Evidentiary and procedural interplay across proceedings. The certificates and presumptions inserted into the Water Management Act will affect proceedings brought under that Act and potentially related civil proceedings where the Act’s evidentiary rules are applied or relied upon. For example, a certificate that a measurement was as published under s 87D will be admissible in Water Management Act proceedings and will shape proof in actions concerning water taking and compliance.

• Limits preserved by specific carve‑outs. Section 87D(3) preserves operation of other licence conditions not covered by published information and does not prevent taking permitted under other provisions. That means s 87D is intended to operate within existing statutory constraints rather than to displace other legal obligations.

Overall, the amendments are designed to work within the Water Management Act structure by providing executive powers to publish operational data and to make regulations, and by equipping regulators and courts with evidentiary tools. The full scope of interaction with external regulatory and property law depends on the content of regulations made under the new enabling powers and the remaining state of the Water Act 1912 where omissions have taken place.

The supplied instrument is an Amendment Act with a schedule that specifically amends the Water Management Act 2000 (Schedule 1) and the Water Act 1912 (Schedule 2). The amendment history in the supplied text records the specific insertions and omissions.

• Schedule 1: Amendment of Water Management Act 2000 No 92. The schedule header records amendment citations (sch 1: Am 1987 No 15, sec 30C; 2024 No 69, Sch 2). Within Schedule 1 the supplied text records several bracketed items marked “repealed” and, importantly, inserts new sections and additions:

  • Insert s 87D “Information about rights to take water from water sources,” which authorises Ministerial publication on an approved website and sets out the legal effect and limits (see s 87D(1)-(3)).
  • Amend s 367 to add certificate items (w)-(z) to s 367(2)(v) at the end of that subparagraph; these items allow certificates to state publication under s 87D, published measurements, conformity with published information, and Minister quantity determinations under s 60G(3).
  • Insert s 367B(e1) as a rebuttable presumption regarding basic landholder rights where an access licence holder is taking water.
  • Insert s 398(2A) to grant Crown immunity for things done under or for the purposes of s 391B or a regulation under that section; and add “a NSW government agency” to the end of s 398(3) as s 398(3)(d).
  • Insert ss 399A and 399B as enabling regulation powers for transfer of metering equipment and for consultation about environmental water releases, respectively.

• Schedule 2: Amendment of other Acts (Water Act 1912). The supplied text records:

  • Sch 2 item 1: Omit s 118A “Drillers to be licensed” from the Water Act 1912.
  • Sch 2 item 2: Omit s 129(1)(g) from the Water Act 1912.
  • Sch 2 item 3: Omit “(section 118A excepted)” from s 129A of the Water Act 1912.

• Commencement. The Act’s commencement clause retains discretion over commencement by proclamation (s 2(1)) but specifies that a list of identified schedules and items commence on the date of assent (s 2(2)). The supplied list is extensive; the inserted items relevant to the supplied text are included among the enumerated schedules and items that commence on assent.

The supplied instrument does not include explanatory memoranda, second reading speeches, or a detailed policy statement explaining the legislative intent beyond the text of the inserted provisions. The schedule annotations show prior amendment citations and a 2024 reference in the header, but the supplied material should be read as a set of textual amendments and omissions rather than as a narrative of legislative policy.

The supplied text contains no decisions, cases, or litigation history. It does, however, introduce legal instruments and evidentiary devices that are likely to affect litigation strategy and the conduct of proceedings under the Water Management Act 2000. The statutory changes that bear on litigation dynamics are the evidentiary certificates (s 367 additions) and the rebuttable presumption (s 367B(e1)), together with the statutory authorisation for publication (s 87D).

• New evidentiary certificates (s 367(2)(w)-(z)). Certificates that state publication status, measurements, conformity with published info, and Minister determinations can be tendered in proceedings. From a litigation practice perspective this creates a category of documentary proof that the Act treats as adequate to establish those facts without necessarily requiring live witness evidence of the operational data. Parties should therefore expect that regulators and prosecutors will rely on such certificates as part of establishing non‑compliance, and defendants will need to consider routes to challenge the certificates’ accuracy, admissibility or the circumstances in which they were issued. The statute does not specify the procedural rules for challenging a certificate; those will be governed by the Act’s general evidentiary rules and court practice.

• Rebuttable presumption on basic landholder rights (s 367B(e1)). The presumption that water taken by an access licence holder was not taken pursuant to a basic landholder right changes the evidential starting point in disputes where both licences and basic landholder rights are asserted. Litigants asserting basic landholder rights will bear the task of adducing evidence to rebut the statutory presumption. That may affect discovery strategy, witness preparation and expert evidence.

• “Taken to be permitted” in s 87D(2). Where a person relies on published information and is otherwise entitled under the licence or plan, the statutory language creates a legal position that can be advanced in proceedings as a defence or as a substantive claim to permit the taking. Adversaries may litigate the scope of entitlement, the accuracy of published information, whether the person took water in accordance with the published information, and whether the Minister authorised the publication.

• Crown immunity (s 398(2A)) and additional immunity for NSW government agencies (s 398(3)(d)). The immunity provision will be a point of litigation where claimants bring actions arising from s 391B activity; defendants representing or acting on behalf of the Crown or a NSW government agency will rely on s 398(2A) to seek dismissal or non‑liability for Crown actors. The statute’s note that liabilities of other persons are dealt with under s 397 indicates that private individuals or entities may still be liable; pinpointing who bears liability will be a common issue in contested matters.

Because the supplied text does not include case law, there are no judicial constructions to cite. Practitioners should expect new litigation over the legal meaning of “publication”, the scope of “taking in accordance with information published under this section”, the foundations and limits of the rebuttable presumption, the procedural weight of evidentiary certificates, and the scope of Crown immunity where s 391B or regulations under that section are implicated. Those are not predictions of outcomes; they are descriptions of the statutory features that will be litigated where disputes arise.

The text contains several drafting features and practical gaps that merit attention when applying the amendments in practice. These are points where statutory ambiguity, discretion or delegation creates implementation risk and compliance complexity.

• Ministerial discretion over publication and website approval. Section 87D(1) expressly says the Minister may authorise publication on “a publicly accessible website approved by the Minister.” The statute does not define approval criteria, timelines, frequency of publication, or minimum standards for accuracy, nor does it mandate redundancy or preservation of historical data. The discretion over whether publication occurs, where it occurs and how it is maintained materially affects the operation of s 87D(2) because the legal permission to take is linked to published information.

• Legal reliance on published data is conditional and potentially partial. Section 87D(2) requires both entitlement under a plan or licence and taking “in accordance with information published under this section.” Section 87D(3)(a) preserves licence conditions not the subject of published information as binding; if the Minister publishes only a subset of licence conditions or operational constraints, users relying on the published data may inadvertently contravene un‑published conditions. The “taken to be permitted” construct therefore can give a false sense of completeness unless stakeholders verify the full set of applicable conditions beyond what is published.

• Evidentiary certificates simplify proof but raise challenge points. Certificates under the expanded s 367(2) can state publication status and measurements. They will be admissible evidence of those facts, but the Act does not set out mechanisms for independent validation of raw data or for cross‑examination of the certifying officer in every case. Parties should prepare to test chain of custody, calibration records, the authority to make the certificate, and compliance with any internal standards used to generate the published data.

• Rebuttable presumption may disadvantage holders of basic landholder rights. Section 367B(e1) creates a presumption that water taken by an access licence holder was not taken pursuant to a basic landholder right. The presumption is rebuttable, but the evidential task it imposes on a basic landholder rights claimant may be significant, especially where records are incomplete or where historical use is informal.

• Crown immunity is narrow but consequential. Section 398(2A) exempts the Crown from actions and liabilities arising from things done under s 391B or a regulation under that section. The note clarifies that liability of other persons is dealt with under s 397. The practical effect is that claimants who might otherwise sue the Crown for conduct under s 391B must consider alternative defendants. Where regulators delegate operational functions to contractors or where non‑Crown actors are involved in implementing s 391B, liability may still be possible against those actors. The statute’s language does not address indemnities or contractual allocation of risk between the Crown and private implementers.

• Regulations will determine critical operational details. Sections 399A-399B are enabling powers for regulations to set out transfer terms for metering equipment and to create consultation and mediation schemes. Until regulations are made, the statutory framework leaves open who bears costs of transfer, how liabilities are allocated, what compensation (if any) applies for environmental releases, and what dispute resolution procedures will apply. Practitioners and stakeholders must therefore track subordinate legislation closely.

• Removal of driller licensing without explicit transitional detail. In the Water Act 1912, the omission of s 118A removes the statutory requirement that drillers be licensed in the amended text. The supplied instrument does not set out transitional arrangements for existing licence holders, nor does it state whether other regulatory instruments will take over licensing. That omission can create uncertainty for industry participants about continuing regulatory obligations and for regulators about enforcement policy.

• Interaction with non‑published licence conditions and other statutory regimes. The Act explicitly preserves un‑published licence conditions (s 87D(3)(a)), but in practice this means a licence holder relying on published information must still ensure full compliance with the licence, even where the licence contains conditions that are not published. The statutory permission in s 87D(2) therefore does not provide blanket immunity from prosecution for breaches of other conditions.

• Terminology and scope not exhaustively defined. Terms such as “publicly accessible website approved by the Minister”, “information published under this section”, “holders of approvals” and “other persons” are not defined in the inserted text. The lack of statutory definitions leaves scope questions to be resolved by regulations, administrative guidance, or adjudication.

Each of these points is grounded in the supplied statutory language and highlights areas where implementation depends on discretionary decisions, subordinate instruments, recordkeeping and evidentiary practice.

Compliance under the new structure requires administrative practices, evidential preparedness and attention to subordinate legislation once made. The following compliance checklist and tasks are grounded in the inserted provisions.

For access licence holders and persons entitled to take water

• Monitor whether the Minister has authorised publication under s 87D(1). An affirmative action by the Minister is the gateway to invoking s 87D(2)’s “taken to be permitted” status.

• Verify entitlement under the relevant management plan or licence before relying on any published permission. Section 87D(2) requires entitlement plus taking in accordance with published information; entitlement remains a pre‑existing legal condition.

• Confirm that the particular licence conditions relevant to operational activity are actually published. Section 87D(3)(a) preserves licence conditions that are not the subject of published information; do not assume publication covers all conditions.

• Keep contemporaneous records demonstrating that the water taken conformed to the published information (times, quantities, location, measurement readings). Records will be necessary if a certificate is tendered that purports to show measured flows or published recommendations and you need to show compliance with them.

For owners/occupiers of land and those affected by environmental releases

• Track whether regulations are made under s 399B. The Act allows the Minister to authorise a consultation and mediation scheme by regulation; participating in any prescribed notification and mediation processes will be essential if and when they are in force.

• Preserve evidence of impacts and communications. If a consultation scheme is in place by regulation, notification requirements and mediation may be prerequisites to rights or remedies; capture communications and timing to show whether statutory processes were followed.

For entities offered transfer of metering equipment

• Await and review regulations under s 399A carefully. The transfer power covers property, rights, assets and liabilities. The regulations will determine whether transfer is voluntary, the terms of transfer, the allocation of liabilities and the circumstances for removal of metering equipment if offers are not accepted.

• Conduct due diligence on proposed transfers: examine asset condition, meter calibration records, historical data, liabilities (including maintenance, data servicing, calibration and compliance obligations), and any indemnities or warranties that the transfer conveys.

For legal advisers and compliance officers

• Use the expanded s 367 certificates. When defending or prosecuting, seek certificates under s 367(2)(w)-(z) to establish publication status, measurement data, conformity with published information, and Minister determinations. Equally, prepare to challenge certificates by probing authorising authority, chain of custody, data generation processes and calibration.

• Prepare to rebut the s 367B(e1) presumption where clients assert basic landholder rights. Assemble contemporaneous evidence of landholder use, witness statements, historical records, metering data, and any contractual or statutory instruments that bear on the right.

• Factor Crown immunity into litigation and negotiation strategy. Where claims arise from s 391B activity or regulations under that section, check s 398(2A) before naming the Crown as a defendant and consider alternative defendants, contractual indemnities or administrative review routes.

• Ensure operational compliance beyond published information. Even where the Minister publishes permissibility or quantity data under s 87D, ensure the activity also conforms with all written licence conditions, statutory constraints and management plans not covered by publication.

For regulatory and operational staff within Water NSW or Ministerial Corporation

• Prepare protocols for offering transfers under s 399A: document valuation methods, transfer terms, conditions precedent, insurance and indemnity positions, and asset removal procedures for non‑acceptance cases, because regulations may adopt or require such processes.

• Maintain transparent audit trails for measurement and publication. The evidentiary weight accorded to published information and certificates makes accurate recordkeeping and provenance of data critical.

General administrative steps

• Map current licence conditions against what would be useful or risky to publish. Consider drafting publication manuals and risk assessments to advise the Minister on which information to publish and how to contextualise it to avoid misleading reliance.

• Train operational staff on the evidential significance of published information and certificates, and on how to support the production of certificates that will be used in proceedings.

• Monitor subordinate legislation. Regulations under ss 399A-399B will likely contain the granular compliance obligations and dispute resolution processes that flow from these enabling powers.

These compliance steps are derived from the specific statutory wording in s 87D, the additions to s 367 and s 367B, the immunity provision in s 398(2A) and the enabling regulation powers in ss 399A-399B, together with the Water Act 1912 omissions in sch 2. They should be adapted once any regulations or administrative instruments required by these sections are made and published.