New South Wales act

Water NSW Act 2014

In ForceNSW

Jurisdiction

New South Wales

Act Number

74 of 2014

Collection

act

Plain English Summary

8/10 complexity

Mechanically, this Act renames and continues State Water Corporation as Water NSW, transfers assets, staff and regulatory functions from earlier catchment bodies, and sets out Water NSW’s powers to own and operate water works, acquire land, set fees, enter land and enforce catchment protections under operating licences and oversight by IPART and a Regulatory Authority. It matters to Water NSW, other water utilities, landowners and users because it centralises control of storage and supply, creates new compliance tools and penalties, and links operations to planning, environment and employment law.

JSON API

Deep Dive

8,337 words · generated 02/07/2026

What it does

Mechanically, the Water NSW Act 2014 constitutes a statutory corporation, Water NSW, as the legal continuation of the former State Water Corporation (s 4). It sets out Water NSW’s constitutional form, board and chief executive arrangements (Div 3), enumerates principal and other objectives (s 6) and lists the functions Water NSW may perform (s 7). The Act establishes an operating-licence regime administered by the Governor on the recommendation of the portfolio Minister to authorise Water NSW to exercise its listed functions in specified areas and circumstances (ss 11-14). Operating licences must contain specified terms and conditions, including performance standards, reporting, and arrangements for IPART operational audits (ss 12(2)-(3); 57).

The Act creates two regulatory actors with distinct roles. IPART (the Independent Pricing and Regulatory Tribunal) is given monitoring, auditing and recommendation functions, may impose monetary penalties or require corrective action for operating-licence contraventions (ss 56-60; 17), and determines the operating-licence fee (s 56(1)(d)). Separately, the Minister (or a person the Minister appoints) acts as the “Regulatory Authority” for regulatory functions conferred by the Act or other instruments; the Regulatory Authority may be given concurrence roles under environmental planning instruments and other compliance roles (s 61; ss 62-63). The regulations may prescribe further functions and procedural rules for the Regulatory Authority (s 64AA).

The Act defines and empowers the declaration and management of declared catchment areas, special areas and controlled areas (Part 4). The Governor may declare catchment, special and controlled areas by Gazette order (ss 40, 47, 54). For declared catchment areas the Act requires development of catchment health indicators (s 41), periodic catchment audits and tabling of audit reports in Parliament (s 42), and obliges Water NSW to evaluate and incorporate relevant audit findings into its risk framework and programs within six months (s 43) and to report on progress within two years (s 44).

Current sections

Direct links to the current provisions in Water NSW Act 2014.

149

Part 1

Preliminary

Part 1 Preliminary

Name of Act

1 Name of Act

This Act is the Water NSW Act 2014.

Commencement

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

Definitions

3 Definitions

(1) In this Act—

area of operations of Water NSW—see section 15.

assets—see clause 2 (1) of Schedule 1.

authorised officer means a person who has been appointed as an authorised officer under this Act.

board means the board of directors of Water NSW.

catchment audit means an audit conducted under section 42.

catchment health, in relation to a declared catchment area, means the condition of ecosystems and systems of management (such as sewerage and stormwater systems) in that catchment that protect water quality.

catchment infrastructure works means—

(a) water storages, water mains, or connected or associated works, or

(b) monitoring devices in, under, over or near any works referred to in paragraph (a), or

(c) any works ancillary or antecedent to any works referred to in paragraph (a) or (b), or

(d) hydro-electric plants or associated infrastructure or works,

and includes anything prescribed by the regulations as being within this definition, but excludes anything prescribed by the regulations as being outside this definition.

catchment management means the management of land and water resources in a declared catchment area.

chief executive officer means the chief executive officer of Water NSW.

controlled area means an area of land for the time being declared under this Act to be a controlled area.

county council means a county council under the Local Government Act 1993.

declared catchment area means an area of land for the time being declared under this Act to be a declared catchment area.

Department means the Department of Industry, Skills and Regional Development.

Fish River water supply scheme means the water management work comprising the concrete dam on Fish River at Oberon and Duckmaloi Weir, together with—

(a) its associated gravitation main, concrete reservoirs, reticulation systems and treatment works, and

(b) the pumping station at Oberon, and

(c) all incidental and connected works, and

(d) all additions, amplifications, improvements and extensions to that scheme.

function includes a power, authority or duty, and exercise a function includes perform a duty.

IPART means the Independent Pricing and Regulatory Tribunal established under the Independent Pricing and Regulatory Tribunal Act 1992.

land includes the following—

(a) the sea or an arm of the sea,

(b) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal,

(c) a river, stream or watercourse, whether tidal or non-tidal,

(d) a building erected on the land.

lease includes a licence or permit.

liabilities—see clause 2 (1) of Schedule 1.

listed functions of Water NSW—see section 7 (1).

Ministerial Corporation means the Water Administration Ministerial Corporation constituted by the Water Management Act 2000.

motor vehicle means any motor car, motor cycle or other vehicle propelled by any means other than human or animal power.

operating licence means an operating licence granted under this Act or any renewal of it.

operational audit means an operational audit of Water NSW that is required to be prepared under an operating licence.

owner, in relation to land, includes every person who jointly or severally at law or in equity—

(a) is entitled to the land for an estate of freehold in possession, or

(b) is a person to whom the Crown has contracted to sell the land under the Crown Land Management Act 2016 or any other Act relating to alienation of land of the Crown, or

(c) is entitled to receive, or receives, or if the land were let to a tenant would receive, the rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession or otherwise,

and, in relation to land of the Crown, means the Crown, but does not include a person who, or a class of persons that, is declared by the regulations as being outside this definition, either generally or in a particular case or class of cases.

public authority includes a corporation that is incorporated by or under an Act, but does not include—

(a) a company within the meaning of the Corporations Act 2001 of the Commonwealth, or

(b) a co-operative within the meaning of the Co-operatives National Law (NSW), or

(c) an association incorporated under the Associations Incorporation Act 2009, or

(d) a body prescribed by the regulations as not being a public authority for the purposes of this definition.

Regulatory Authority—see section 61.

rights—see clause 2 (1) of Schedule 1.

special area means an area of land for the time being declared under this Act to be a special area.

specified includes referred to.

State Water Corporation means State Water Corporation as constituted by the State Water Corporation Act 2004 immediately before the repeal of that Act by this Act.

Sydney catchment area means the declared catchment area known as the Sydney catchment area referred to in clause 17 of Schedule 2, as declared from time to time under this Act.

water storages means dam walls, pumps and other works used for or with respect to the extraction, and storage, of—

(a) water in rivers and lakes, and

(b) water occurring naturally on the surface of the ground, and

(c) sub-surface waters.

works, in relation to Water NSW, includes—

(a) any catchment infrastructure works, metering equipment, water storages and other water management works vested in or under the control of Water NSW, and

(b) any other assets of Water NSW of a kind prescribed by the regulations.

(2) In this Act, each of the following terms and expressions has the same meaning as in the Water Management Act 2000—

estuary

lake

metering equipment

river

water management work

water source

water supply authority

(3) Subject to subsections (1) and (2), words and expressions used in this Act have the same meanings as they have in the State Owned Corporations Act 1989.

(4) Notes included in this Act do not form part of this Act.

s 3: Am 2016 No 22, Sch 1 [1]; 2017 No 17, Sch 2.20 [1].

Part 2

Constitution and functions of Water NSW

Part 2 Constitution and functions of Water NSW

Division 1

Constitution of Water NSW

Division 1 Constitution of Water NSW

Constitution of Water NSW

4 Constitution of Water NSW

(1) State Water Corporation continues in existence as a corporation constituted by this Act, but with the new corporate name of Water NSW.

(2) Accordingly, Water NSW is taken for all purposes (including the rules of private international law) to be a continuation of, and the same legal entity as, State Water Corporation.

Note.

Schedule 3 to this Act, as originally enacted, amended the State Owned Corporations Act 1989 to provide for Water NSW to continue to be a statutory State owned corporation.

The State Owned Corporations Act 1989 contains a number of provisions that will apply to Water NSW as a statutory State owned corporation. In particular—

(a) Part 3 contains provisions relating to the status of Water NSW, the application of the Corporations Act 2001 of the Commonwealth, the issue of shares to the Treasurer and another Minister, the board of directors, the chief executive officer, the employment of staff, the giving of directions by the portfolio Minister (including directions for the performance of non-commercial activities or the carrying out of public sector policies), the constitution of Water NSW, dividends and tax-equivalent payments, government guarantees, the sale or disposal of assets and the legal capacity and general powers of Water NSW, and

(b) Part 4 deals with the accountability of Water NSW (including statements of corporate intent, annual reports and accounts), and

(c) Part 5 deals with miscellaneous matters (including the duties and liabilities of directors and the application of public sector legislation).

Foundation charter of Water NSW

5 Foundation charter of Water NSW

(1) For the purposes of the State Owned Corporations Act 1989, the foundation charter of Water NSW is this Part (but not the remainder of this Act).

Note.

Section 3 of the State Owned Corporations Act 1989 defines the foundation charter of a statutory State owned corporation (SOC) as the whole of any Act by which a SOC is established for the purposes of the State Owned Corporations Act 1989 and, in particular, for the purpose of the provisions relating to the legal capacity of statutory SOCs and assumptions that they have complied with that Act and their foundation charter.

(2) Nothing in this section limits the operation of section 4.

Division 2

Objectives and functions of Water NSW

Division 2 Objectives and functions of Water NSW

Objectives of Water NSW

6 Objectives of Water NSW

(1) The principal objectives of Water NSW are—

(a) to capture, store and release water in an efficient, effective, safe and financially responsible manner, and

(b) to supply water in compliance with appropriate standards of quality, and

(c) to ensure that declared catchment areas and water management works in such areas are managed and protected so as to promote water quality, the protection of public health and public safety, and the protection of the environment, and

(d) to provide for the planning, design, modelling and construction of water storages and other water management works, and

(e) to maintain and operate the works of Water NSW efficiently and economically and in accordance with sound commercial principles.

(2) The other objectives of Water NSW are as follows—

(a) to be a successful business and, to that end—

(i) to operate at least as efficiently as any comparable business, and

(ii) to maximise the net worth of the State’s investment in Water NSW,

(b) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates,

(c) to exhibit a sense of responsibility towards regional development and decentralisation in the way in which it operates,

(d) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6 (2) of the Protection of the Environment Administration Act 1991.

(3) The other objectives of Water NSW are of equal importance, but are not as important as the principal objectives of Water NSW.

(4) Section 20E of the State Owned Corporations Act 1989 does not apply to Water NSW.

(5) Nothing in this section gives rise to, or can be taken into account in, any civil cause of action.

Functions of Water NSW

7 Functions of Water NSW

(1) For the purposes of this Act, the listed functions of Water NSW are as follows—

(a) to capture and store water and to release water—

(i) to persons entitled to take the water, including release to regional towns, and

(ii) for any other lawful purpose, including the release of environmental water,

(b) to supply water to the Sydney Water Corporation,

(c) to supply water to water supply authorities and to local councils or county councils prescribed by the regulations,

(d) to supply water to licensed operators and licensed retailers within the meaning of the Water Industry Competition Act 2006,

(e) to supply water to other persons and bodies, but under terms and conditions that prevent the person or body concerned from supplying the water for consumption by others within the State unless the person or body is authorised to do so by or under an Act,

(f) to construct, maintain and operate water management works (including providing or constructing systems or services for supplying water),

(g) to protect and enhance the quality and quantity of water in declared catchment areas,

(h) to manage and protect declared catchment areas and water management works vested in or under the control of Water NSW that are used within or for the purposes of such areas,

(i) to undertake flood mitigation and management,

(j) to undertake research on catchments generally, and in particular on the health of declared catchment areas,

(k) to undertake an educative role within the community.

(2) Water NSW may—

(a) provide facilities or services that are necessary, ancillary or incidental to its listed functions, and

(b) conduct any business or activity (whether or not related to its listed functions) that it considers will further its objectives.

(3) However, the listed functions of Water NSW and its functions under subsection (2)—

(a) may only be exercised under the authority of, and in accordance with, one or more operating licences, and

(b) are subject to any applicable requirements under the Water Management Act 2000 or the Water Act 1912.

(4) Water NSW also has such other functions as may be conferred or imposed on it—

(a) by or under another provision of this Act, or

(b) by or under any other Act or law, or

(c) by an operating licence.

(5) Nothing in this Act requires the authorisation of an operating licence for the exercise of a function that is conferred or imposed on Water NSW by or under another provision of this Act or by or under any other Act or law.

s 7: Am 2021 No 26, Sch 2.17[1].

Division 3

Management of Water NSW

Division 3 Management of Water NSW

Board of directors of Water NSW

8 Board of directors of Water NSW

(1) The board of directors of Water NSW is to consist of not fewer than 3, and not more than 8, directors appointed by the voting shareholders.

(2) The voting shareholders are to consult with the portfolio Minister on the persons recommended for appointment as directors.

(3) The person for the time being holding office as chief executive officer of Water NSW is to be a director of the board.

(4) Schedule 8 to the State Owned Corporations Act 1989 and section 20J (subsections (2) and (5) excepted) of that Act apply with respect to the board.

(5) The persons appointed as directors are, between them, to have the necessary expertise, skills and knowledge that will enable Water NSW to meet its objectives.

Chief executive officer

9 Chief executive officer

(1) The chief executive officer of Water NSW is to be appointed by the board after consultation with the voting shareholders and the portfolio Minister.

(2) The board may remove a person from office as chief executive officer, at any time, for any or no reason and without notice, but only after consultation with the voting shareholders and the portfolio Minister.

(3) The chief executive officer is entitled to be paid such remuneration (including travelling and subsistence allowances) as the board may determine after consultation with the voting shareholders.

(4) The board may, after consultation with the voting shareholders and the portfolio Minister, fix the conditions of employment of the chief executive officer in so far as they are not fixed by or under any other Act or law.

(5) The Government Sector Employment Act 2013 (Part 6 included) does not apply to the chief executive officer.

(6) Clauses 1 and 4 of Schedule 9 to the State Owned Corporations Act 1989 have effect with respect to the chief executive officer.

(7) The provisions of section 20K (2) and (4) of the State Owned Corporations Act 1989 do not apply to the chief executive officer.

(8) The provisions of this section are in addition to, and (except to the extent to which this section provides) do not derogate from, the provisions of the State Owned Corporations Act 1989.

Acting chief executive officer

10 Acting chief executive officer

(1) The board may, from time to time, appoint a person to act in the office of chief executive officer during the illness or absence of the chief executive officer.

(2) The board may remove a person from office as acting chief executive officer, at any time, for any or no reason and without notice.

(3) A person, while acting in the office of chief executive officer—

(a) has all the functions of the chief executive officer and is taken to be the chief executive officer, and

(b) is entitled to be paid such remuneration (including travelling and subsistence allowances) as the board may determine.

(4) For the purposes of this section, a vacancy in the office of chief executive officer is regarded as an absence from office of the chief executive officer.

(5) The board is not to appoint a person to act in the office of chief executive officer during any vacancy in that office without the concurrence of the voting shareholders and the portfolio Minister.

(6) The provisions of this section are in addition to, and (except to the extent to which this section provides) do not derogate from, the provisions of the State Owned Corporations Act 1989.

Division 4

Operating licences

Division 4 Operating licences

Grant of operating licences

11 Grant of operating licences

(1) The Governor may, on the recommendation of the portfolio Minister, grant one or more operating licences to Water NSW to authorise it, in accordance with this Act, to carry out the listed functions specified in the licence, and such other functions as may be conferred or imposed on it by the licence, in the areas and circumstances (if any) specified in the licence.

Note.

Section 7 (5) provides that nothing in this Act requires the authorisation of an operating licence for the exercise of a function that is conferred or imposed on Water NSW by or under a provision of this Act (other than section 7) or by or under any other Act or law.

(2) If Water NSW is granted more than one operating licence, each operating licence must specify the functions to which it relates and the areas or circumstances (or both) in which those functions may be exercised under the authority of that licence.

(3) Except to the extent to which this Act expressly provides, nothing in an operating licence limits the requirements imposed by or under any other Act or law with respect to the functions referred to in subsection (1).

(4) In this section, listed functions of Water NSW include functions under section 7 (2).

Terms and conditions of operating licence

12 Terms and conditions of operating licence

(1) Subject to subsection (2), an operating licence is subject to the terms and conditions determined by the Governor on the recommendation of the portfolio Minister.

(2) The operating licence must include terms or conditions under which Water NSW is required—

(a) in connection with an operating licence that authorises Water NSW to capture, store, release or supply water—

(i) to provide, construct, operate, manage and maintain efficient, co-ordinated and commercially viable systems and services to capture, store, release or supply water, and

(ii) to ensure that the systems and services meet the performance standards specified in the operating licence in relation to water delivery, water quality, service interruptions or any other matters set out in the operating licence, and

(b) in connection with an operating licence that authorises Water NSW to exercise functions with respect to a declared catchment area—to compile indicators of the direct impact of Water NSW’s activities (including, but not limited to, the impact of energy used and waste generated) on the environment so as to provide information about its performance and enable reports to be prepared.

Note.

In the case where Water NSW has been granted more than one operating licence, section 11 (2) also requires each operating licence to specify the functions of Water NSW to which the licence relates and the areas or circumstances (or both) in which those functions may be exercised under the authority of that licence.

(3) The terms and conditions of an operating licence are to make provision for the preparation of operational audits by IPART.

(4) The terms and conditions of an operating licence may confer on Water NSW any specified functions of—

(a) the Minister administering the Water Management Act 2000 under that Act or the Water Act 1912, or

(b) the Ministerial Corporation under any Act or law.

(5) A function is not to be conferred under subsection (4) unless the Minister administering the Water Management Act 2000 or the Premier provides his or her concurrence to the conferral of the function.

(6) A function of the Minister referred to in subsection (4) (a) or of the Ministerial Corporation conferred on Water NSW under subsection (4) may also be exercised by the Minister or the Ministerial Corporation (as the case requires) despite that conferral. However, a function may be conferred exclusively on Water NSW if the Minister administering the Water Management Act 2000 or the Premier provides his or her concurrence to the exclusive conferral of the function.

(7) The conferral of functions under subsection (4) has effect according to its tenor.

Amendment of operating licence

13 Amendment of operating licence

(1) The Governor, on the recommendation of the portfolio Minister, may—

(a) amend an operating licence (including by adding, altering or omitting functions authorised by the licence or areas or circumstances in which such functions may be exercised under the authority of the licence), or

(b) substitute an operating licence, or

(c) impose, amend or revoke conditions of the operating licence.

(2) The portfolio Minister is to consult with Water NSW before making a recommendation to the Governor under subsection (1).

Term of operating licence

14 Term of operating licence

(1) The term of an operating licence is to be for a maximum of 5 years, as determined by the Governor.

(2) The Governor may renew an operating licence, subject to subsection (1).

(3) An operating licence may be renewed even if its term has expired.

Area of operations of Water NSW

15 Area of operations of Water NSW

(1) The area of operations of Water NSW is the whole of the State.

(2) However, nothing in this Act authorises or requires Water NSW to exercise any of the following functions except as provided by this section—

(a) a function that is conferred or imposed on the Sydney Water Corporation by or under the Sydney Water Act 1994 with respect to its area of operations,

(b) a function that is conferred or imposed on the Hunter Water Corporation by or under the Hunter Water Act 1991 with respect to its area of operations under that Act,

(c) a function that is conferred or imposed on a water supply authority by or under the Water Management Act 2000 with respect to the area of operations prescribed for it by regulations made under section 289 (1) of that Act.

(3) Subsection (2) (c) does not limit the functions of Water NSW in its capacity as a water supply authority in relation to the Fish River water supply scheme.

(4) Despite subsections (1) and (2), an operating licence may authorise Water NSW—

(a) to carry out any of its functions outside of the State, or

(b) to exercise a function referred to in subsection (2), but only with the agreement of the Corporation or water supply authority concerned (the relevant body).

(5) If Water NSW is authorised by an operating licence to exercise any functions of the kind referred to in subsection (4) (b), Water NSW is to obtain the agreement of each relevant body in relation to the exercise of those functions.

(6) Nothing in this section affects the area of operations of the Sydney Water Corporation or Hunter Water Corporation or any water supply authority.

Contravention of operating licence

16 Contravention of operating licence

(1) If, in the opinion of the portfolio Minister, Water NSW contravenes an operating licence, the portfolio Minister may cause a notice to be served on Water NSW requiring it to rectify the contravention within a specified period.

(2) If, in the opinion of the portfolio Minister, Water NSW contravenes an operating licence, and whether or not a notice has been served under subsection (1) or the period specified in the notice has ended, the Governor may direct that Water NSW is to pay a monetary penalty of an amount to be determined by the Governor.

(3) The fact that the Governor has directed that action be taken under this section does not prevent the Governor directing that the same or other action under this section be taken if the contravention continues or a fresh contravention occurs.

(4) An operating licence may make provision for advice to be provided to the portfolio Minister in connection with the exercise of the portfolio Minister’s functions under this section.

(5) A penalty imposed under this section may be recovered in any court of competent jurisdiction as if it were a debt due to the State.

Contravention of operating licence: action by IPART

17 Contravention of operating licence: action by IPART

(1) IPART may impose a monetary penalty on Water NSW if Water NSW contravenes an operating licence.

(2) IPART may, instead of imposing a monetary penalty, require Water NSW to take such action as IPART considers appropriate in the circumstances, including (for example) requiring the sending of information to customers or the publication of notices in newspapers.

(3) IPART may not require action to be taken under subsection (2) by Water NSW if the cost of that action would exceed the monetary penalty that IPART could impose under this section on Water NSW.

(4) If IPART requires information to be sent to a customer under subsection (2), Water NSW may satisfy that requirement by sending the information to the customer with the next account or bill to be sent to the customer by Water NSW or, if Water NSW is sending other information to that customer before the next account or bill, with that other information.

(5) Action may be taken under this section only if Water NSW has knowingly contravened an operating licence.

(6) The monetary penalty that IPART may impose under this section must not exceed $10,000 for the first day on which the contravention concerned occurs and a further $1,000 for each subsequent day (not exceeding 30 days) on which the contravention continues.

(7) IPART must not take action under this section unless—

(a) IPART has—

(i) considered whether the contravention has been or is likely to be the subject of any other penalty or action or any claim for compensation, and is satisfied that it is nevertheless appropriate to take action under this section, and

(ii) considered the action that Water NSW has taken or is likely to take in respect of the contravention and the cost to Water NSW in taking that action, and is satisfied that it is nevertheless appropriate to take action under this section, and

(b) each of the following procedures have been followed—

(i) notice of the proposed action has been given to Water NSW,

(ii) Water NSW has been given a reasonable opportunity to make submissions with respect to the proposed action,

(iii) IPART has given due consideration to any such submissions.

(8) IPART is required to consider the seriousness of the contravention concerned in determining whether to impose a monetary penalty under this section.

(9) IPART must not take action under this section in respect of a contravention if any action has already been taken under section 16 in respect of the contravention.

(10) Nothing in this section affects any powers under section 16 in respect of a contravention, whether or not IPART has already taken action under this section in respect of the contravention.

(11) A penalty imposed under this section may be recovered in any court of competent jurisdiction as if it were a debt due to the State.

Administrative review of certain decisions of IPART concerning operating licence

18 Administrative review of certain decisions of IPART concerning operating licence

(1) Water NSW, if aggrieved by a decision of IPART to take action under section 17 in relation to Water NSW, may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.

(2) Section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 does not apply to such a decision of IPART.

Cancellation of operating licence

19 Cancellation of operating licence

(1) An operating licence of Water NSW may be cancelled only in the circumstances specified by this section.

(2) The Governor may cancel an operating licence of Water NSW if Water NSW ceases, otherwise than as authorised by the operating licence, to carry out the functions of Water NSW to which the licence relates in accordance with the operating licence for any reason.

(3) The Governor may cancel any or all of the operating licences of Water NSW if—

(a) Water NSW—

(i) is, in the opinion of the portfolio Minister, in material default in complying with any operating licence, viewed in terms of the operation of the operating licence as a whole, and

(ii) has not, within the time specified by the portfolio Minister in a notice to Water NSW, either rectified the default or shown cause, to the satisfaction of the portfolio Minister, why the operating licence should not be cancelled, or

(b) Water NSW has been convicted on more than 3 occasions within a period of 12 months of offences that are punishable by a fine of at least $10,000 or, if Water NSW were a natural person, imprisonment for 12 months or more.

(4) A notice under section 16 (1) can also be regarded as a notice for the purposes of subsection (3) (a) (ii).

(5) If an operating licence is cancelled under this section, the Governor may, by order published in the Gazette, transfer to the Ministerial Corporation, the State or a public or local authority (as specified in the order), from a date specified in the order, such of the assets and rights of Water NSW that are specified in the order and that, in the opinion of the portfolio Minister, are necessary to enable the Ministerial Corporation, the State or the public or local authority to exercise such of the functions exercisable (or formerly exercisable) by Water NSW as appear to be necessary in the public interest.

(6) An order under this section may provide for—

(a) the Ministerial Corporation, the State or a public or local authority to assume those liabilities of Water NSW that the Governor considers appropriate and specifies in the order, or

(b) the Ministerial Corporation, the State or a public or local authority to pay the whole or any part of the liabilities of Water NSW.

(7) Schedule 1 applies to any transfer of assets, rights or liabilities under this section.

Division 5

Memoranda of understanding

Division 5 Memoranda of understanding

Definition

20 Definition

In this Division—

regulatory agencies means—

(a) the Environment Protection Authority and the Secretary of the Ministry of Health, and

(b) the Chief Executive of the Office of Environment and Heritage, the Secretary of the Department, local councils, county councils, and any persons, bodies or agencies for the time being nominated by order of the portfolio Minister communicated to Water NSW.

Requirement to enter into certain memoranda of understanding

21 Requirement to enter into certain memoranda of understanding

(1) Water NSW is required to enter into memoranda of understanding respectively with the regulatory agencies referred to in paragraph (a) of the definition of regulatory agencies in section 20. The following subsections of this section apply in relation to such a memorandum of understanding, and do not apply to memoranda of understanding with other regulatory agencies.

(2) A memorandum of understanding is to be of the nature referred to in an operating licence.

(3) A memorandum of understanding is to be reviewed, and amended or replaced, at such times and in such circumstances as are agreed on between Water NSW and the regulatory agency concerned or as are determined by the portfolio Minister.

(4) If Water NSW and a regulatory agency are not able to enter into, or agree on a term of, a memorandum of understanding, the memorandum is to be entered into in accordance with the procedures determined by the Premier or is taken to be entered into in such terms as are determined by the Premier.

Direction to enter into certain memoranda of understanding

22 Direction to enter into certain memoranda of understanding

(1) The portfolio Minister may, from time to time, direct Water NSW to enter into memoranda of understanding with such regulatory agencies referred to in paragraph (b) of the definition of regulatory agencies in section 20 as the Minister determines. This section does not apply to a memorandum of understanding referred to in section 21.

(2) The portfolio Minister may specify the matters to be dealt with in a memorandum of understanding and the period (not more than 6 months from the date of the direction) within which the memorandum is to be entered into.

(3) A memorandum of understanding is to be reviewed, and amended or replaced, at such times and in such circumstances as are agreed on between Water NSW and the regulatory agency concerned or as are determined by the portfolio Minister.

(4) If Water NSW and a regulatory agency are not able to enter into, or agree on a term of, a memorandum of understanding, the memorandum is to be entered into in accordance with the procedures determined by the Premier or is taken to be entered into in such terms as are determined by the Premier.

Public exhibition of memoranda of understanding

23 Public exhibition of memoranda of understanding

(1) Water NSW must give notice of the preparation of each memorandum of understanding to which it is a party.

(2) The notice is to be given in a manner that the regulatory agency concerned is satisfied is likely to bring the notice to the attention of members of the public in the area of operations of Water NSW and must—

(a) specify the address of the place at which copies of the memorandum of understanding may be inspected, and

(b) specify the address to which representations concerning the memorandum of understanding may be forwarded.

(3) Any person may, within 30 days or such longer period as may be specified in the notice, make representations to Water NSW and to the regulatory agency concerned about the memorandum of understanding.

(4) Water NSW and each regulatory agency must, on the expiration of the period referred to in subsection (3), and before entering into the memorandum of understanding, consider any representations made under this section.

(5) Notice of the execution of a memorandum of understanding is to be published in the Gazette and in a manner that the regulatory agency concerned is satisfied is likely to bring the notice to the attention of members of the public in the area of operations of Water NSW within 14 days after the execution.

(6) The requirements of this section apply to an amendment to a memorandum of understanding in the same way as they apply to a memorandum of understanding.

s 23: Am 2018 No 25, Sch 2.38 [1].

Division 6

Arrangements for drawing water

Division 6 Arrangements for drawing water

Arrangements for drawing water from certain water storages and pipelines

24 Arrangements for drawing water from certain water storages and pipelines

(1) This section applies only to—

(a) water storages and pipelines of Water NSW that were water storages and pipelines of the Sydney Catchment Authority to which section 21A of the Sydney Water Catchment Management Act 1998 applied immediately before its repeal, and

(b) water storages and pipelines of Water NSW (or water storages and pipelines of Water NSW of a kind) prescribed by the regulations.

(2) Subject to its operating licences, Water NSW has control over all water in water storages or pipelines to which this section applies.

(3) Water in these water storages or pipelines is available for supply by Water NSW.

(4) Water NSW may enter into an arrangement with any person to permit that person to draw or take water from these water storages or pipelines.

Division 7

Arrangements with Sydney Water Corporation

Division 7 Arrangements with Sydney Water Corporation

Arrangements with Sydney Water Corporation

25 Arrangements with Sydney Water Corporation

(1) Water NSW is required to enter into arrangements with the Sydney Water Corporation regarding the supply of water by Water NSW to the Sydney Water Corporation.

(2) The matters with which the arrangements are to deal are to include the following—

(a) the standard of quality of the water supplied,

(b) the continuity of water supply,

(c) the maintenance of adequate reserves of water by Water NSW,

(d) subject to this Division, the cost to be paid by the Sydney Water Corporation for the supply of water to it.

(3) The arrangements may be amended or replaced from time to time.

(4) The Treasurer is to be consulted about the terms of the arrangements, including amendments and replacements, before their finalisation.

(5) The terms of the arrangements, including amendments and replacements, have no effect unless or until approved by the portfolio Minister.

(6) The arrangements are to be reviewed as required by—

(a) the terms of the arrangements, or

(b) the terms of an operating licence, or

(c) the portfolio Minister.

(7) The arrangements are to be amended or replaced at times specified by—

(a) the terms of the arrangements, or

(b) the terms of an operating licence, or

(c) the portfolio Minister.

(8) The provisions of section 23 (Public exhibition of memoranda of understanding) apply, with the necessary modifications, to arrangements under this section in the same way as they apply to memoranda of understanding.

(9) Nothing in this Division limits the matters that may be included in an operating licence or limits the terms of an operating licence.

Negotiations

26 Negotiations

(1) Water NSW and the Sydney Water Corporation are required to enter into negotiations for the purpose of entering into, amending or replacing the arrangements as and when required by or under this Division.

(2) If it appears to the Premier that negotiations are unable to be finalised, the arrangements are to be entered into, amended or replaced in accordance with the procedures determined by the Premier or are taken to be entered into, amended or replaced in such terms as are determined by the Premier.

Role of IPART with respect to arrangements

27 Role of IPART with respect to arrangements

(1) An arrangement under this Division is not to be entered into, amended or replaced except after consultation with IPART and after IPART has provided a report on the proposed arrangement or amendment to the portfolio Minister, Water NSW and the Sydney Water Corporation.

(2) In providing such a report, IPART is to take into consideration any public submissions made under the provisions applied by section 25 (8).

(3) IPART may investigate the adequacy and operation of the arrangements under this Division at any time, and may provide a report on any aspect of the arrangements, or their adequacy or operation, to the portfolio Minister.

(4) The portfolio Minister is to table the report (or cause it to be tabled) in both Houses of Parliament within one month after the Minister receives the report.

(5) Without limiting the generality of any provisions of the Independent Pricing and Regulatory Tribunal Act 1992, the supply of water by Water NSW to the Sydney Water Corporation is capable of being declared to be a government monopoly service within the meaning of that Act.

(6) The provisions of this Division and of the arrangements have effect subject to the Independent Pricing and Regulatory Tribunal Act 1992.

Division 8

Transfer of assets, rights and liabilities

Division 8 Transfer of assets, rights and liabilities

Transfer of specified assets, rights and liabilities

28 Transfer of specified assets, rights and liabilities

(1) The portfolio Minister may, with the concurrence of the voting shareholders, by order in writing, transfer to Water NSW such of the assets, rights and liabilities of the Ministerial Corporation, the State or a public or local authority as are specified or referred to in the order.

(2) The portfolio Minister may, with the concurrence of the voting shareholders, by order in writing, transfer to the Ministerial Corporation or to any other person or body on behalf of the State such of the assets, rights and liabilities of Water NSW, as are specified or referred to in the order.

(3) The portfolio Minister is not to make an order under subsection (1) or (2) unless the relevant person or body from whom, or to whom, the assets, rights or liabilities are to be transferred has consented to the transfer.

(4) The fee simple in land that comprises the bed of any river, lake or estuary is not to be transferred to Water NSW under this section unless the Minister administering the Crown Land Management Act 2016 has been consulted in relation to the transfer.

(5) Subsection (4) does not prevent the transfer to Water NSW of the ownership of any works installed in or on the bed of any river, lake or estuary.

(6) An order under this section may be made on such terms and conditions as are specified in the order.

(7) Schedule 1 applies to any transfer of assets, rights or liabilities by an order under this section.

(8) Section 20C of the State Owned Corporations Act 1989 does not apply to the transfer of assets, rights or liabilities to Water NSW.

s 28: Am 2017 No 17, Sch 2.20 [2].

Division 9

Staff transfers

Division 9 Staff transfers

pt 2, div 9 (s 28A): Ins 2016 No 22, Sch 1 [2].

28A

Transfer of departmental staff to Water NSW

28A Transfer of departmental staff to Water NSW

Note.

This section operates concurrently with Part 6-3A of the Fair Work Act 2009 of the Commonwealth which provides that certain terms and conditions of employment of a State public sector employee are transferred when the employee is transferred to the employment of a national system employer such as Water NSW.

(1) The Minister may, by order in writing, transfer to Water NSW any person employed in the Department who is designated by the Secretary of the Department to be a person required for the purposes of enabling Water NSW to exercise its functions (a transferred employee).

(2) A transfer under this section does not require the consent of the transferred employee.

(3) On the day specified in the order (the transfer day)—

(a) the employment of the transferred employee in the Public Service is terminated, and

(b) the transferred employee becomes an employee of Water NSW.

(4) On and from the transfer day for a transferred employee—

(a) the transferred employee is entitled to continue as a contributor, member or employee for the purposes of any superannuation scheme in respect of which the transferred employee was a contributor, member or employee (as an employee in the Public Service) immediately before the transfer day and remains so entitled subject to any variation to that entitlement made either by agreement or otherwise in accordance with law, and

(b) Water NSW is taken to be an employer for the purposes of any superannuation scheme in respect of which the transferred employee continues as a contributor, member or employee pursuant to an entitlement under this section, and

(c) the continuity of the transferred employee’s contract of employment is taken not to have been broken by the transfer of employment, and service of the employee in the Public Service (including service deemed to be service with Water NSW) that is continuous service up to the time of transfer is taken for all purposes to be service with Water NSW, and

(d) the transferred employee retains any rights to sick leave, annual leave or extended or long service leave accrued or accruing immediately before the transfer day (except accrued leave for which the employee has, on ceasing to be employed in the Public Service, been paid the monetary value in pursuance of any other entitlement of the employee).

(5) A transferred employee is not entitled in respect of the same period of service to claim a benefit under this section and another law or instrument.

(6) The Secretary of the Department may, in connection with the transfer of a transferred employee’s employment under this section, give a certificate in writing as to the extent of the accrued rights to annual leave, sick leave or extended or long service leave that are retained by the employee under this section, and such a certificate is evidence of the matters certified.

(7) In the event that Part 6-3A of the Fair Work Act 2009 of the Commonwealth does not apply to a transferred employee, Water NSW is nevertheless required to provide the transferred employee with the same entitlements to which the employee would have been entitled under that Part had it applied to the employee.

(8) The following provisions apply in relation to the transfer of a transferred employee’s employment under this section—

(a) the transfer has effect despite the Government Sector Employment Act 2013, the Industrial Relations Act 1996 or any other law, contract or instrument under a law,

(b) the termination of the employee’s employment in the Public Service by operation of this section does not preserve, or give rise to, any entitlements or rights other than those provided for by the Fair Work Act 2009 of the Commonwealth and this section,

(c) the transferred employee is not entitled to any payment or other benefit by reason only of having ceased to be an employee in the Public Service as a result of the transfer,

(d) the Crown is not required to make any payment to the transferred employee in relation to the transferred employee’s accrued rights in respect of annual leave, sick leave or extended or long service leave,

(e) the transfer does not affect the transferred employee’s appointment (if any) under section 390 of the Water Management Act 2000 as an authorised officer for the purposes of that Act.

pt 2, div 9 (s 28A): Ins 2016 No 22, Sch 1 [2].

Part 3

Powers of Water NSW

Part 3 Powers of Water NSW

Ownership of works

29 Ownership of works

(1) Water NSW is the owner of all works installed by, vested in or transferred to Water NSW in or on any land (including the bed of any river, lake or estuary) whether or not the land is owned by Water NSW.

(2) Water NSW may, subject to this and any other Act or law and for purposes consistent with its objectives—

(a) build and install works, and

(b) operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that are necessary or appropriate to any of its works, and

(c) sell, demolish or otherwise deal with any of its works.

(3) Part 3 and section 91 (b) and (c) of the Public Works and Procurement Act 1912 do not apply in respect of works owned by Water NSW.

(4) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.

Acquisition of land for purposes of this Act

30 Acquisition of land for purposes of this Act

(1) Water NSW may acquire land (including an interest in land) for the purposes of this Act.

(2) Other purposes for which land may be acquired under this section include the purposes of a future sale, lease or disposal, that is, to enable Water NSW to exercise its functions in relation to land under this Act.

(3) Land that Water NSW is authorised to acquire under this section may be acquired by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

(4) For the purposes of the Public Works and Procurement Act 1912—

(a) an acquisition in accordance with this section is taken to be for an authorised work, and

(b) Water NSW is, in relation to that work, taken to be the Constructing Authority, and

(c) Part 3 and section 91 (b) and (c) of that Act do not apply in respect of that work.

(5) Water NSW may not give a proposed acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991 for the purposes of this or any other Act, without the approval of the portfolio Minister.

(6) Any such acquisition is not void merely because it is expressed to be for the purposes of Water NSW or for the purposes of this Act.

Metering equipment functions

31 Metering equipment functions

(1) Conferral of functions Water NSW may, if an operating licence so provides, operate, replace, repair, maintain, remove, connect, disconnect or modify metering equipment that Water NSW does not own.

(2) Water NSW may from time to time test any metering equipment that it owns or any other metering equipment in respect of which it exercises functions under this section.

(3) The regulations may provide that Water NSW is, or is not, to exercise any of its functions with respect to the operation, replacement, repair, maintenance, removal, connection, disconnection or modification of metering equipment under section 29 or this section to the exclusion of any other person and may limit the exercise of any of those functions to—

(a) specified water sources or classes of water sources, or

(b) a specified area, or

(c) specified access licences or approvals or classes of access licences or approvals for specified areas, or

(d) specified works or classes of works.

(4) Operation of sections The functions conferred by section 29 and this section in respect of metering equipment are in addition to any functions conferred on Water NSW under the Water Management Act 2000 or the Water Act 1912 in relation to water management works or other works.

(5) The conferral of functions by section 29 and this section in respect of metering equipment, and any regulations under this section, have effect despite any other provision of the Water Management Act 2000 or the Water Act 1912.

(6) A direction under section 326 of the Water Management Act 2000, or a condition of an access licence or approval under that Act, ceases to have effect during any period that the exercise of a function is conferred exclusively on Water NSW by or under section 29 or this section, if the direction or condition requires the exercise of, or relates to the exercise of, that function.

(7) Subsections (5) and (6) do not apply to a direction given to Water NSW or an access licence or approval held by Water NSW.

(8) Subsection (6) does not affect the operation of, or enforcement of, a direction under section 326 of the Water Management Act 2000 or a condition of an access licence or approval in relation to any period before the direction or condition ceased to have effect.

(9) In this section, access licence and approval have the same meanings as in the Water Management Act 2000 and include an entitlement (within the meaning of clause 2 of Schedule 10 to that Act) that confers a corresponding authority.

Entry on land to read meters or carry out works

32 Entry on land to read meters or carry out works

(1) When entry permitted Water NSW may, by its employees and agents, enter and occupy land for any one or more of the following purposes—

(a) to read any of its metering equipment (including metering equipment in respect of which Water NSW has functions because of section 31),

(b) to operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that Water NSW considers are necessary or appropriate to any of its works,

(c) to construct new works and, for these purposes, to carry out any work on, below or above the surface of the land,

(d) to ascertain the character and condition of the land to enable Water NSW to operate, repair, replace, maintain, remove, extend, expand, connect, disconnect or improve, or do any other thing to, Water NSW’s systems and services for the purposes of carrying out the terms and conditions of its operating licences,

(e) if pollution of water is occurring in a declared catchment area or in water that is captured, stored, released or supplied by Water NSW—to find the source of the pollution and, for this purpose, to dig up and remove material from the land,

(f) in exercise of any of Water NSW’s functions—

(i) to divert water from, or alter the course of, a stream, and

(ii) to impound or take water on, in or under the surface of the land.

(2) The power conferred by subsection (1) (a) is sufficient authority for an employee or agent to enter and occupy land (except an enclosed part occupied as a separate dwelling) during daylight unless the employee or agent is refused access by the lawful occupier of the land.

(3) Water NSW may remove or use anything dug up or obtained in the exercise of its powers under this section.

(4) Reasonable force may be used to enter land (but not a dwelling-house) under this section.

(5) Giving of notice Water NSW must not exercise the powers conferred by subsection (1) (b), (c), (d), (e) or (f) unless—

(a) reasonable notice in writing of its intention to do so has first been given to the landholder of the land, building or dwelling-house, or

(b) it authorises the entry after forming the opinion that the giving of the notice would cause undue delay.

(6) If the powers of entry under subsection (1) (b), (c), (d), (e) or (f) are exercised without notice being given or by force, Water NSW must, without delay, notify such persons as it considers appropriate of the action taken.

(7) Other powers of entry Nothing in this section limits any powers of entry that Water NSW may have apart from this section (including, without limitation, any powers it may have under sections 296 and 297 of the Water Management Act 2000 in its capacity as the water supply authority for the Fish River water supply scheme or in any other capacity).

Power to break up roads

33 Power to break up roads

(1) Water NSW may, on giving reasonable notice to persons likely to be affected and for the purpose of exercising its functions under this or any other Act, open and break up—

(a) the soil and pavement of a public road or public reserve, and

(b) any sewer, drain or tunnel in or under a public road or public reserve.

(2) The statutory body having the control and management of a public road or public reserve may, as prescribed by the regulations, require Water NSW to comply with conditions in exercising its powers under subsection (1), including conditions for restoration of the surface and removal of rubbish.

(3) If a public road or public reserve is damaged by a leakage from, or a bursting of, Water NSW’s water main, the statutory body having the control and management of the public road or public reserve may require Water NSW to make good the damage without delay.

(4) If Water NSW fails—

(a) to comply with a condition in force under subsection (2), or

(b) to comply with a requirement under subsection (3),

the statutory body affected by the failure may remedy it and recover the cost of doing so in a court of competent jurisdiction as a debt owed to the statutory body by Water NSW.

Altering position of conduits

34 Altering position of conduits

(1) Water NSW may serve on a person a notice in writing that complies with subsection (2) if—

(a) Water NSW, in order to exercise its functions, needs an alteration to be made in the position of a conduit owned by the person, and

(b) the alteration would not permanently damage the conduit or adversely affect its operation.

(2) A notice must—

(a) specify the alteration needed, and

(b) require the alteration to be made within a reasonable time stated in the notice, and

(c) include an undertaking by Water NSW to pay the reasonable cost of the alteration.

(3) If the alteration is not made as required by the notice, Water NSW may make the alteration in such a manner as not to damage the conduit permanently or adversely affect its operation on completion of the alteration.

(4) Water NSW may, for the purposes of subsection (3), exercise any powers of the person on whom the notice was served, in addition to or instead of any powers of Water NSW.

(5) Except as provided by subsection (4), this section does not confer on Water NSW or the owner of the conduit any additional powers of entry or powers to carry out works than would be available apart from this section.

(6) In this section—

conduit means anything that is in or under a public road (or any other land on which no building or other structure is located) and is used for the conveyance of a substance, energy or signals.

Water NSW may use water management works to generate hydro-electricity

35 Water NSW may use water management works to generate hydro-electricity

Water NSW may—

(a) authorise devices for generating electricity from water released in the exercise of Water NSW’s functions under this Act to be placed on or in any of its water management works, and

(b) install and use devices placed on or in any of its water management works to generate and supply electricity.

Obstruction of water management works

36 Obstruction of water management works

(1) If a person places a structure or other thing in or near any of the water management works of Water NSW in such a manner as to interfere with the work, Water NSW may—

(a) demolish and remove the structure or other thing, and

(b) repair the work, and

(c) recover the cost of doing so in a court of competent jurisdiction as a debt owing to Water NSW by the person who placed the structure or other thing there.

(2) Water NSW may apply for and obtain an injunction to prevent a structure or other thing being placed as referred to in subsection (1).

(3) A person—

(a) must not wilfully or negligently destroy, damage or interfere with any water management works of Water NSW, or

(b) must not open up ground to expose any water management work of Water NSW without reasonable excuse, or the consent of Water NSW, and without giving Water NSW at least 2 days’ written notice of intention to open the ground unless that requirement is waived by Water NSW.

Maximum penalty—

(a) in the case of a corporation—400 penalty units, or

(b) in the case of an individual—200 penalty units.

Compensation by Water NSW for damage

37 Compensation by Water NSW for damage

(1) Water NSW, in exercising its functions under this Part, is to do as little damage as practicable and is, subject to this Part, to compensate all persons who suffer damage by the exercise of its functions.

(2) Compensation may be made by reinstatement, repair, construction of works or payment.

(3) A claim for compensation—

(a) is ineffective unless made in writing not later than 6 months after the damage was suffered, and

(b) in the absence of agreement on the compensation, must be dealt with as if it were a claim for compensation for the acquisition of land for public purposes under the Public Works and Procurement Act 1912.

Compensation to Water NSW for damage

38 Compensation to Water NSW for damage

(1) Without limiting section 36, a person who, without the consent of Water NSW, carries out any activity that causes destruction of, damage to or interference with any work owned by Water NSW in circumstances in which the person should have known that the destruction, damage or interference would result from the carrying out of the activity, is liable to compensate Water NSW for all loss or damage suffered by Water NSW as a result.

(2) Water NSW is not entitled to compensation both under this section and another provision of this Act for the same destruction, damage or interference.

(3) A reference in this section to a person extends to any person—

(a) who caused the carrying out of the activity, or

(b) by whose order or direction the activity was carried out, or

(c) who aided, assisted, counselled or procured the carrying out of the activity.

(4) Water NSW may proceed against a person for recovery of its loss or compensation for its damage under this section whether or not Water NSW has proceeded against the person principally responsible for the loss or damage or any other person involved in the carrying out of the activity that caused the loss or damage.

Water NSW may impose fees and charges

39 Water NSW may impose fees and charges

(1) Water NSW may impose fees and charges on any person to whom Water NSW provides a service in the exercise of its functions, including any person to whom Water NSW makes water available.

(2) Water NSW may impose different fees and charges according to specified factors or circumstances.

(3) Any fee or charge imposed under this section is taken to be a debt due to Water NSW and is recoverable in a court of competent jurisdiction.

(4) A fee or charge levied under this Act on the holder of an access licence (within the meaning of the Water Management Act 2000) and any costs awarded to Water NSW by a court in proceedings to recover the fee or charge are a charge on the access licence and may be registered in accordance with the Water Management Act 2000.

(5) However, Water NSW may not impose a fee or charge under this section for the provision of any service whose cost is determined or regulated under any arrangement, operating licence, memorandum of understanding or other instrument under this Act.

Note.

For example, arrangements between Water NSW and the Sydney Water Corporation made under section 25 regarding the supply of water to the Sydney Water Corporation are required to make provision for the cost of the supply of such water (subject to the role of IPART under Division 7 of Part 2).

Part 4

Declared catchment areas and special and controlled areas

Part 4 Declared catchment areas and special and controlled areas

Declaration of declared catchment areas

40 Declaration of declared catchment areas

(1) The Governor may, by order published in the Gazette, declare an area of land specified in the order to be, or to be part of, a declared catchment area of Water NSW.

(2) The Governor may, by the same order or by a subsequent order published in the Gazette, declare a specified part of a declared catchment area of Water NSW to be the inner catchment area or outer catchment area of the declared catchment area.

(3) The Sydney catchment area must not be reduced in size, and an order revoking the declaration of the Sydney catchment area as a declared catchment area must not be made, unless authorised by an Act of Parliament.

Catchment health indicators

41 Catchment health indicators

(1) The Minister—

(a) must appoint a public authority or other person to be the appointed person to carry out functions under this section in relation to the Sydney catchment area, and

(b) may appoint a public authority or other person to be the appointed person to carry out functions under this section in relation to any other declared catchment area.

(2) The appointed person must develop and approve catchment health indicators of the catchment health of the declared catchment area.

(3) The appointed person must publish the approved catchment health indicators in the Gazette.

(4) Those indicators may be amended or replaced in the same way as they were originally developed, approved and published.

Catchment audits

42 Catchment audits

(1) The Minister—

(a) must appoint a public authority or other person to be the appointed auditor to carry out functions under this section in relation to the Sydney catchment area, and

(b) may appoint a public authority or other person to be the appointed auditor to carry out functions under this section in relation any other declared catchment area.

(2) The appointed auditor must—

(a) conduct an audit (a catchment audit) of the catchment health of the declared catchment area, and

(b) present a report on that audit to the Minister.

(3) The catchment audit must assess the state of the declared catchment area having regard to the catchment health indicators approved under section 41 for the area, as in force at the time of the assessment.

(4) A catchment audit for the Sydney catchment area must be conducted, and a report presented to the Minister on that audit (the initial report), no more than 3 years after the day on which section 4 commences. Subsequent audits must be conducted, and reports must be presented to the Minister on those audits, at intervals of no more than 3 years calculated from the day the initial report is presented.

(5) A catchment audit for a declared catchment area other than the Sydney catchment area must be conducted, and a report presented to the Minister, within the period specified by the Minister.

(6) The Minister is to table the report (or cause it to be tabled) in both Houses of Parliament within one month after the Minister receives the report.

(7) The Minister is to forward a copy of the report of a catchment audit to Water NSW as soon as practicable after the report is received.

Incorporation of catchment audit findings

43 Incorporation of catchment audit findings

(1) Water NSW must evaluate the findings of a catchment audit, as stated in the report of the catchment audit, to the extent to which they relate to the activities of Water NSW and risks to water quality in the declared catchment area to which the catchment audit relates.

(2) Water NSW must incorporate the findings of a catchment audit, to the extent to which they relate to the activities of Water NSW and water quality, into—

(a) Water NSW’s risk framework, and

(b) Water NSW’s programs and activities relating to catchment management.

(3) This section must be complied with within 6 months after the catchment audit report is received by the Minister.

Report concerning adjustments as a result of catchment audit findings

44 Report concerning adjustments as a result of catchment audit findings

(1) If a catchment audit has been conducted under this Division for a declared catchment area, Water NSW must report to the Minister on Water NSW’s progress to achieve improvements in catchment health, to prevent degradation of existing catchment health and to maintain existing catchment health, having regard to the findings of the audit.

(2) Such a report must be provided within 2 years after the catchment audit report is received by the Minister.

Operation of this Division

45 Operation of this Division

Nothing in this Division prevents—

(a) an operating licence from including terms and conditions relating to Water NSW’s activities (including, but not limited to, Water NSW’s catchment management functions) or requiring reports on those activities, or

(b) IPART from recommending to the Minister that an operating licence include terms and conditions relating to Water NSW’s catchment management functions or requiring reports on those functions.

Definitions

46 Definitions

In this Division—

joint sponsors means—

(a) the Minister, and

(b) if the Minister is not the Minister for the Environment—the Minister for the Environment.

public agency means the Governor, a Minister or a public authority.

Special areas

47 Special areas

(1) The Governor may, on the recommendation of the Minister, by order published in the Gazette, declare an area of land specified in the order to be a special area.

(2) The Minister is not to recommend the making of such an order unless the Minister certifies that the Minister is satisfied that the making of the order is necessary for either or both of the following purposes—

(a) protecting the quality of stored waters, whether intended for use for drinking or other purposes,

(b) maintaining the ecological integrity of an area of land to be declared to be a special area in a manner that is consistent with Water NSW’s objectives.

(3) The Minister must cause a copy of an order made under this section, including an order amending an order, to be tabled in each House of Parliament within 14 sitting days of that House after the order has been published in the Gazette.

(4) A special area must not be reduced in size, and an order declaring an area of land to be a special area must not be repealed, unless authorised by an Act of Parliament.

(5) The Governor may, on the recommendation of the Minister, by order published in the Gazette, declare that the order declaring an area of land at Woodford to be a special area (being an order published in Gazette No 45 of 15 March 1991 at page 2186) is repealed on the date specified in the later order.

Restriction on alienation of land in special areas

48 Restriction on alienation of land in special areas

(1) Water NSW must not alienate, mortgage, charge or demise land in a special area that is owned by or vested in Water NSW unless—

(a) to or in favour of the Minister administering the National Parks and Wildlife Act 1974 (at no cost to that Minister), or

(b) authorised by an Act of Parliament.

(2) Nothing in subsection (1) operates—

(a) to extinguish or otherwise affect any existing lease or other interest in the land in a special area, or

(b) to prevent the renewal of any such lease or other interest, or

(c) to prevent the grant of a lease or other interest in the land in accordance with any plan of management prepared in relation to the land under this Act.

Crown land in special areas

49 Crown land in special areas

(1) Action may not be taken under the Crown Land Management Act 2016 in relation to land in a special area unless the Regulatory Authority has given approval in writing and any conditions to which the approval is subject are complied with.

(2) The Regulatory Authority may, in a special area, exercise the functions of a statutory land manager within the meaning of the Crown Land Management Act 2016 that has been appointed as a Crown land manager of dedicated or reserved Crown land under that Act without being appointed as such.

s 49: Am 2017 No 17, Sch 2.20 [3] [4].

Exercise of functions by public agencies in special areas

50 Exercise of functions by public agencies in special areas

(1) A public agency may not, in relation to land within a special area, exercise functions other than functions under this Act unless notice is first given to the Regulatory Authority in the way prescribed by the regulations.

(2) On receiving a notice referred to in this section, the Regulatory Authority may make such representations to the public agency as the Regulatory Authority thinks fit.

(3) A public agency may not exercise functions contrary to any such representations unless, before the exercise of the functions, not less than 28 days’ notice has been given to the Regulatory Authority of the functions intended to be exercised.

(4) If a public agency has functions with regard to a development application or an application for a complying development certificate relating to land within a special area to which an environmental planning instrument applies, the forwarding of the application or a copy of it to the Regulatory Authority, whether by the public agency or the applicant, is taken also to be the giving of notice for the purposes of this section.

(5) This section does not apply to a public agency’s functions with regard to the making of an environmental planning instrument in relation to land within a special area.

(6) This section does not apply to a public agency’s functions with regard to a development application if an environmental planning instrument applying in the special area prevents the development application from being determined by the granting of consent without the concurrence of the Regulatory Authority.

s 50: Am 2024 No 80, Sch 3[1].

Regulations about special areas

51 Regulations about special areas

(1) The regulations may make provision about special areas, including the following—

(a) the regulation and prohibition of the following—

(i) the extraction, use, pollution or contamination of waters within the areas,

(ii) the pollution or contamination of land within the areas,

(iii) access to, or the use of, the areas,

(iv) other conduct in relation to the areas,

(b) the circumstances and way in which Water NSW may regulate, prohibit or consent to conduct referred to in paragraph (a)(i)–(iv),

(c) the functions of authorised officers and the Regulatory Authority in relation to the areas,

(d) directions given by authorised officers, including directions given to persons about the following—

(i) conduct referred to in paragraph (a)(i)–(iv), including directing persons to leave an area,

(ii) the removal or disposal of animals, substances and other things,

(iii) the surrender of property, including stock or other animals and things,

(iv) the inspection of things for, or the investigation of, contraventions or suspected contraventions of this Act or the regulations,

(e) the removal of persons by authorised officers and the use of reasonable force,

(f) the removal, impoundment, disposal or sale, by authorised officers, of property, including stock or other animals and things, not authorised to be, or unlawfully, in the areas,

(g) the persons liable for costs incurred by authorised officers for matters referred to in paragraph (f) and the recovery of the costs by Water NSW,

(h) the fees and charges, or the imposition of fees and charges by Water NSW, for access to, or the use of, the areas,

(i) the waiver or refund of fees and charges.

(2) A regulation made under this division prevails to the extent of an inconsistency with an instrument made under another Act, other than a State environmental planning policy made under the Environmental Planning and Assessment Act 1979.

(3) In exercising functions under the regulations for this section, an authorised officer must not direct an owner, or lawful occupier, of land in a way that would limit the owner’s or occupier’s access to the land, or remove the owner or occupier from the land, unless the direction or removal is—

(a) in accordance with guidelines made by the Minister and published in the Gazette, and

(b) for the purpose of managing and protecting the areas, and water management works within the areas, so as to promote at least 1 of the following—

(i) water quality,

(ii) the protection of public health or public safety,

(iii) the protection of the environment.

(4) Subsection (3) does not limit Part 6.

s 51: Subst 2024 No 80, Sch 3[2].

Plans of management

52 Plans of management

(1) The joint sponsors are jointly required to cause a plan of management to be prepared for each special area as soon as practicable after it has been declared to be a special area.

(2) When a plan of management has been prepared, the joint sponsors must give notice of the plan in a manner that the joint sponsors are satisfied is likely to bring the notice to the attention of members of the public and must, in that notice—

(a) specify the address of the place at which copies of the plan of management may be inspected, and

(b) specify the address to which representations concerning the plan of management may be forwarded.

(3) Any person may, within 30 days or such longer period as may be specified in the notice, make representations to the joint sponsors concerning the plan of management.

(4) The joint sponsors must, on the expiration of the period referred to in subsection (3), and before adopting the plan of management, consider any representations made under this section.

(5) The joint sponsors may adopt the plan of management without alteration or with such alterations as the joint sponsors think fit having regard to the representations made under this section.

(6) The joint sponsors may—

(a) amend or alter a plan of management from time to time, or

(b) cancel a plan of management, or

(c) cancel a plan of management and substitute a new plan.

(7) Before doing any of the things referred to in subsection (6), the joint sponsors may consult with any person or body (including persons or bodies other than the joint sponsors) that the joint sponsors think fit.

(8) Subsections (2)–(4) apply to an amendment or alteration of a plan of management in the same way as they apply to a plan of management.

s 52: Am 2018 No 25, Sch 2.38 [2].

Operations under plan of management

53 Operations under plan of management

(1) A plan of management adopted under this Act for a special area must be carried out and given effect to by the joint sponsors.

(2) Subject to the requirements of any other Act or any instrument under any other Act, no operations are to be undertaken by the joint sponsors in relation to the lands within the special area unless the operations are in accordance with the plan.

(3) The joint sponsors (together or individually) may engage such contractors (including government agencies) as may be necessary or convenient to assist them in carrying out and giving effect to the plan.

Controlled areas

54 Controlled areas

(1) The Governor may, on the recommendation of the Minister, by order published in the Gazette, declare an area of land specified in the order to be a controlled area.

(2) An order under this section applies to land only while it is owned by or vested in Water NSW.

Regulations about controlled areas

55 Regulations about controlled areas

(1) The regulations may make provision about controlled areas, including the following—

(a) the regulation and prohibition of the following—

(i) extraction, use, pollution or contamination of waters within the areas,

(ii) pollution or contamination of land within the areas,

(iii) access to, or the use of, the areas,

(iv) other conduct in relation to the areas,

(b) the circumstances and way in which Water NSW may regulate, prohibit or consent to conduct referred to in paragraph (a)(i)–(iv),

(c) the functions of authorised officers and the Regulatory Authority in relation to the areas,

(d) directions given by authorised officers, including directions given to persons about the following—

(i) conduct referred to in paragraph (a)(i)–(iv), including directing persons to leave an area,

(ii) the removal or disposal of animals, substances and other things,

(iii) the surrender of property, including stock or other animals and things,

(iv) the inspection of things for, or investigation of, contraventions or suspected contraventions of this Act or the regulations,

(e) the removal of persons by authorised officers and the use of reasonable force,

(f) the removal, impoundment, disposal, or sale, of property, including stock or other animals and things, not authorised to be, or unlawfully, in the areas, by authorised officers,

(g) the persons liable for costs incurred by authorised officers for matters referred to in paragraph (f) and the recovery of the costs by Water NSW,

(h) the fees and charges, or the imposition of fees and charges by Water NSW, for access to, or use of, the areas,

(i) the waiver or refund of fees or charges.

(2) A regulation made under this division prevails to the extent of an inconsistency with an instrument made under another Act, other than a State environmental planning policy made under the Environmental Planning and Assessment Act 1979.

s 55: Subst 2024 No 80, Sch 3[3].

Part 5

Regulatory functions

Part 5 Regulatory functions

Regulatory functions of IPART

56 Regulatory functions of IPART

(1) The regulatory functions of IPART under this Act are as follows—

(a) the function of making recommendations under subsection (2),

(b) the functions of monitoring and reporting or informing under subsection (3),

(c) the auditing functions of IPART under subsection (4),

(d) the function of determining the operating licence fee (if any),

(e) the function of imposing monetary penalties or requiring other action to be taken under section 17,

(f) such other functions of IPART under this Act as are specified by the regulations for the purposes of this section.

(2) IPART has the function of making recommendations to the portfolio Minister for or with respect to—

(a) the granting, amendment or cancellation of an operating licence, and

(b) the imposition, amendment or cancellation of conditions in relation to an operating licence, and

(c) action to be taken, and sanctions to be applied, in respect of a contravention of an operating licence, and

(d) remedial action that may be warranted as a result of a contravention of an operating licence.

(3) IPART has the functions of—

(a) monitoring and reporting to the portfolio Minister on compliance by Water NSW with its operating licences, and

(b) informing the portfolio Minister about any failure of Water NSW to meet operational standards or any other requirements imposed on Water NSW under its operating licences.

(4) IPART has such functions as may be conferred or imposed on it by an operating licence in connection with operational audits of Water NSW.

Operational and other audits

57 Operational and other audits

(1) IPART is to prepare operational audits of Water NSW at the times directed by the portfolio Minister.

(2) The portfolio Minister may direct IPART to prepare an operational audit of specified matters only.

(3) IPART is to ensure that each operational audit of Water NSW is prepared in accordance with its operating licences.

Report on operational audit

58 Report on operational audit

IPART is to present to the portfolio Minister a report on each operational audit within one month after its receipt of the audit.

Tabling of report in Parliament

59 Tabling of report in Parliament

The portfolio Minister is to table the report (or cause it to be tabled) in both Houses of Parliament within one month after the Minister receives the report.

Cost of audit

60 Cost of audit

(1) Water NSW is required to pay to the Treasurer the cost (as certified by IPART) involved in and in connection with carrying out the operational audit of Water NSW.

(2) Without limitation, an operating licence may include terms and conditions relating to the determination of the cost of carrying out the operational audit.

Regulatory Authority

61 Regulatory Authority

(1) Meaning of “Regulatory Authority” For the purposes of this Act, the Regulatory Authority, in relation to a function conferred or imposed on the Regulatory Authority by or under this or any other Act (a regulatory function), is—

(a) the Minister, or

(b) if the Minister appoints a person under this section to exercise that function—that person.

(2) Appointment of qualified persons to exercise regulatory functions The Minister may, by order published in the Gazette, appoint a qualified person to exercise all or specified regulatory functions.

Note.

Section 43 (2) of the Interpretation Act 1987 provides that if an Act confers a power on any person or body to make an order (whether or not the order must be in writing), the power includes power to amend or repeal any order made in the exercise of that power.

(3) Subject to the regulations, each of the following is a qualified person—

(a) a public authority,

(b) the head of a Public Service agency.

(4) However, Water NSW cannot be appointed to exercise a regulatory function that would authorise or permit Water NSW—

(a) to have a concurrence role (as referred to in section 62) with respect to the granting of development consent under Part 4 of the Environmental Planning and Assessment Act 1979 for the carrying out of development by it, or

(b) to grant development consent under Part 4 of the Environmental Planning and Assessment Act 1979 for the carrying out of development by it.

(5) Different qualified persons may be appointed to exercise different regulatory functions, whether by the same order or different orders.

(6) The Regulatory Authority in relation to a regulatory function may delegate the function to—

(a) if the Regulatory Authority is the Minister—a member of staff of the Department, or

(b) if the Regulatory Authority is a public authority—a member of staff of the authority, or

(c) if the Regulatory Authority is the head of a Public Service agency—a member of staff of that agency.

(7) Without limiting the generality of any provisions of the Independent Pricing and Regulatory Tribunal Act 1992, a service provided by Water NSW in exercise of a regulatory function it is appointed to exercise under this section is capable of being declared to be a government monopoly service within the meaning of that Act.

(8) Annual reports by persons appointed to exercise regulatory functions A qualified person who is appointed under this section to exercise any regulatory functions must report annually to the Minister with respect to the exercise of the functions by the person and members of staff of the public authority or Public Service agency concerned.

(9) A report under subsection (8) is to be provided to the Minister within 4 months after each 30 June.

(10) The report is to specify the following matters in relation to the year ended on that 30 June—

(a) if any members of staff of the public authority or Public Service agency concerned were authorised officers during the year—

(i) the number of times such members of staff entered land, or obtained search warrants, under Division 2 of Part 6, and

(ii) the number of times such members of staff exercised functions under Division 3 of Part 6, the kind of functions exercised and the outcomes of the exercise of functions, and

(iii) the number of times such members of staff issued penalty notices under section 102 and the outcomes of issuing the penalty notices, and

(iv) the number of times such members of staff exercised functions with respect to the commencement of prosecutions for offences against this Act or the regulations and the outcomes of the prosecutions,

(b) if the qualified person was appointed to exercise regulatory functions under Division 3 or 4 of Part 6—the number of times the person or members of staff have exercised the functions, the kinds of functions exercised and the outcomes of the exercise of the functions,

(c) any other information requested by the Minister with respect to the exercise of regulatory functions by the qualified person or members of staff.

(11) The report may be combined with any other annual report of the public authority or Public Service agency concerned that is required to be tabled in both Houses of Parliament.

(12) The Minister is to table the report (or cause it to be tabled) in both Houses of Parliament within one month after the Minister receives the report, unless the report has been combined with another annual report of the public authority or Public Service agency concerned.

(13) Definition In this section—

head of a Public Service agency has the same meaning as in the Government Sector Employment Act 2013.

Concurrence and other roles under environmental planning instruments concerning declared catchment areas

62 Concurrence and other roles under environmental planning instruments concerning declared catchment areas

(1) The Regulatory Authority has such functions as are necessary or convenient to carry out any concurrence or other role conferred or imposed on the Regulatory Authority by or under any environmental planning instrument in relation to a declared catchment area.

(2) For the purpose of enabling the Regulatory Authority to exercise the functions conferred on it by this section—

(a) the Regulatory Authority has and may exercise the powers conferred on a council under Division 1A of Part 6 of the Environmental Planning and Assessment Act 1979, and

(b) an authorised officer has and may exercise the powers conferred by that Division on a person authorised by a council under section 118A (1) of that Act, subject to that Division.

(3) This section does not affect the generality of any other provision of this or any other Act.

Compliance role under other legislation

63 Compliance role under other legislation

(1) The Regulatory Authority has such functions as are necessary or convenient to carry out any inspectorial, enforcement or other role conferred or imposed on it by the regulations under this Act by reference to powers conferred on other persons or bodies under any Act or instrument under any Act so far as they relate to—

(a) activities carried out or proposed to be carried out within a declared catchment area or controlled area, or

(b) activities carried out or proposed to be carried out outside a declared catchment area or controlled area but being of such a nature as affect or may affect a declared catchment area or controlled area.

(2) The regulations under this Act may, on the recommendation of the Minister and with the approval of the Minister administering the Act concerned, make provision about conferring or imposing on the Regulatory Authority any such function, and to specifying the effect, limitations or consequences of the exercise of any such function.

(3) This section does not affect the generality of any other provision of this or any other Act so far as it confers or imposes functions on the Regulatory Authority, but otherwise has effect despite anything in any other Act.

(4) This section does not apply in relation to—

(a) the grant of licences, or

(b) activities carried on by Water NSW.

(5) In this section—

grant includes issue, approve or amend.

licence includes consent, permit, authority or any other kind of authorisation (however described).

s 63: Am 2024 No 80, Sch 3[4]–[6].

Approval of infrastructure activities within Sydney catchment area

64 Approval of infrastructure activities within Sydney catchment area

(1) In this section—

infrastructure activity means any development or other activity of any kind—

(a) that is proposed to be carried out within the Sydney catchment area—

(i) on land owned or leased by, or leased to, Water NSW, or

(ii) on other land but under a contract to which Water NSW is a party, and

(b) that, but for this section, would be subject in any respect to the Environmental Planning and Assessment Act 1979, the Local Government Act 1993 or any instrument in force under either of those Acts.

(2) The Regulatory Authority may approve the carrying out of an infrastructure activity if the Regulatory Authority certifies in the instrument of approval that the carrying out of the activity is—

(a) required to protect the quality of water supplied by Water NSW, and

(b) required in the interests of public health or public safety, and

(c) required to be carried out urgently.

(3) If the Regulatory Authority has given such an approval, the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993 and any instruments in force under either of those Acts do not apply to or in respect of—

(a) the approval of the Regulatory Authority to the carrying out of that activity, or

(b) the carrying out of that activity, or

(c) the use at any time of the works with which that activity is concerned, or

(d) the land on which that activity is carried out or proposed to be carried out or on which those works are used or proposed to be used, so far as is relevant to that activity or those works.

64AA

Regulations

64AA Regulations

The regulations may make provision about the Regulatory Authority, including the following—

(a) the circumstances in which the Regulatory Authority exercises its functions or does not exercise its functions,

(b) registers the Regulatory Authority must keep and the inspection of the registers,

(c) the imposition of fees for copies of registers, or parts of registers, kept by the Regulatory Authority.

s 64AA: Ins 2024 No 80, Sch 3[7].

Part 5A

Special provisions relating to Warragamba Dam

Part 5A Special provisions relating to Warragamba Dam

pt 5A (ss 64A–64G): Ins 2018 No 61, Sch 1.

64A

Definitions

64A Definitions

In this Part—

approved EMP means an environmental management plan approved for the time being under section 64C.

draft EMP means an environmental management plan prepared by Water NSW for approval under this Part.

national park land means any land reserved or dedicated under the NPW Act.

NPW Act means the National Parks and Wildlife Act 1974.

NPW Minister means the Minister administering the NPW Act.

Planning Act means the Environmental Planning and Assessment Act 1979.

Warragamba Dam project means development that is approved to be carried out under the Planning Act—

(a) to raise the wall of Warragamba Dam, and

(b) to operate the dam,

for the purposes of facilitating flood mitigation downstream of the dam.

pt 5A (ss 64A–64G): Ins 2018 No 61, Sch 1.

64B

Temporary inundation of national park land

64B Temporary inundation of national park land

(1) A lease, licence, easement or right of way under the NPW Act is not required for or in respect of the temporary inundation of national park land resulting from the Warragamba Dam project.

Note.

Accordingly, the prohibition under section 153B of the NPW Act on the NPW Minister granting a lease, licence, easement or right of way for the purposes of enabling the temporary inundation of the land concerned does not apply.

(2) The temporary inundation of national park land resulting from the Warragamba Dam project is not subject to any plan of management under the NPW Act.

(3) This section applies in relation to the temporary inundation of national park land resulting from the Warragamba Dam project only if an approved EMP is in force.

(4) This section has effect despite any provision of the NPW Act.

pt 5A (ss 64A–64G): Ins 2018 No 61, Sch 1.

64C

Environmental management plan for temporary inundation of national park land

64C Environmental management plan for temporary inundation of national park land

(1) Water NSW is to prepare, in consultation with the Chief Executive of the Office of Environment and Heritage, an environmental management plan relating to the temporary inundation of national park land resulting from the Warragamba Dam project.

(2) The NPW Minister is, after the Warragamba Dam project has been approved under the Planning Act, to determine the matters that are to be addressed by a draft EMP. Those matters must not be inconsistent with the approval of the Warragamba Dam project under the Planning Act.

(3) Water NSW is to submit a draft EMP to the NPW Minister.

(4) The NPW Minister may, with the concurrence of the Minister administering this Act—

(a) approve a draft EMP submitted by Water NSW with or without amendments, or

(b) refer the draft EMP back to Water NSW for further consideration.

(5) Water NSW is to ensure that any requirements imposed by an approved EMP are complied with.

pt 5A (ss 64A–64G): Ins 2018 No 61, Sch 1.

64D

Amendment and revocation of environmental management plan

64D Amendment and revocation of environmental management plan

(1) The NPW Minister may, with the concurrence of the Minister administering this Act—

(a) approve an amendment to an approved EMP, or

(b) revoke an approved EMP and approve a new draft EMP.

(2) Section 64C applies in relation to the amendment of an approved EMP in the same way as that section applies in relation to a draft EMP.

(3) An approved EMP remains in force until it is revoked in accordance with this section.

pt 5A (ss 64A–64G): Ins 2018 No 61, Sch 1.

64E

Ministerial directions

64E Ministerial directions

(1) The NPW Minister may, with the concurrence of the Minister administering this Act, by notice in writing given to Water NSW, direct Water NSW to do any of the following—

(a) to take specified action in relation to the temporary inundation of national park land resulting from the Warragamba Dam project, including action relating to the monitoring of risks associated with the temporary inundation and relating to the rehabilitation or remediation of land,

(b) to prepare a draft amendment of an approved EMP, or a new draft EMP, for approval under this Part,

(c) to conduct a review of an approved EMP and report on the outcome of the review.

(2) Water NSW is required to comply with a direction under this section.

pt 5A (ss 64A–64G): Ins 2018 No 61, Sch 1.

64F

Water NSW required to notify Chief Executive of OEH of certain matters

64F Water NSW required to notify Chief Executive of OEH of certain matters

Water NSW is, if it is of the opinion that a flood event that may affect national park land in the vicinity of Warragamba Dam is likely to occur, required to notify the Chief Executive of the Office of Environment and Heritage, or a person nominated by the Chief Executive, of any inflows likely to inundate the land above the full water supply level of the dam.

pt 5A (ss 64A–64G): Ins 2018 No 61, Sch 1.

64G

Delegation by NPW Minister

64G Delegation by NPW Minister

The NPW Minister may delegate any of the NPW Minister’s functions under this Part (other than this power of delegation) to a person or body specified in section 21 (1) of the NPW Act.

pt 5A (ss 64A–64G): Ins 2018 No 61, Sch 1.

Part 6

Compliance and enforcement

Part 6 Compliance and enforcement

Authorised officers

65 Authorised officers

(1) The Minister may appoint any person (including a class of persons) as authorised officers for the purposes of this Act.

(2) On appointing an authorised officer under subsection (1), the Minister must issue to the officer a certificate of authority unless the officer is a police officer or an authorised officer under the National Parks and Wildlife Act 1974.

(3) A certificate of authority must—

(a) state that it is issued under the Water NSW Act 2014, and

(b) give the name of the person to whom it is issued, and

(c) state the date, if any, on which it expires, and

(d) describe the nature of the functions conferred and the source of the functions.

(4) In the course of exercising the functions of an authorised officer under this Act, the officer must, if requested to do so by any person affected by the exercise of any such function, produce to the person—

(a) in the case of a police officer—the officer’s police identification, or

(b) in the case of an authorised officer under the National Parks and Wildlife Act 1974—the officer’s identification card as an authorised officer under that Act, or

(c) in any other case—the authorised officer’s identification card issued in accordance with this section.

(5) An authorised officer may exercise the functions under this Act that are described in the officer’s certificate of authority.

Authorised officers may request assistance

66 Authorised officers may request assistance

A person may accompany an authorised officer and take all reasonable steps to assist an authorised officer in the exercise of the authorised officer’s functions under this Act if the authorised officer is of the opinion that the person is capable of providing assistance to the authorised officer in the exercise of those functions.

Obstruction of authorised officer

67 Obstruction of authorised officer

A person must not—

(a) obstruct, hinder or interfere with an authorised officer in the exercise of the officer’s functions under this Act or the regulations, or

(b) impersonate an authorised officer.

Maximum penalty—

(a) in the case of a corporation—$250,000, or

(b) in the case of an individual—$120,000.

Entry on to land

68 Entry on to land

(1) An authorised officer may enter and occupy land for the purpose of ascertaining whether the provisions of this Act or the regulations are being complied with or have been contravened.

Note.

See also the investigation powers conferred on authorised officers by Division 3.

(2) The power conferred by subsection (1) may not be exercised unless the authorised officer proposing to exercise the power—

(a) is in possession of the identification the officer is required to produce on request under section 65, and

(b) exercises the power at a reasonable time during daylight, unless this would defeat the purpose for which the power is to be exercised or the power is exercised in an emergency, and

(c) produces the person’s identification if required to do so by the occupier of the land, and

(d) uses no more force than is reasonably necessary to effect the entry.

(3) An authorised officer is not entitled to enter a part of premises used for residential purposes, except—

(a) with the consent of the occupier of the part, or

(b) under the authority of a search warrant.

Search warrants

69 Search warrants

(1) An authorised officer may apply to an issuing officer for a search warrant if the officer has reasonable grounds for believing that a provision of this Act or the regulations has been or is being contravened on land.

(2) An issuing officer to whom an application for a search warrant is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised officer named in the warrant, when accompanied by a police officer, and any other person named in the warrant—

(a) to enter the land concerned, and

(b) to search the land for evidence of a contravention of this Act or the regulations.

(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.

(4) In this section—

issuing officer means an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002.

Power of authorised officers to require answers

70 Power of authorised officers to require answers

(1) An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have knowledge of matters in respect of determining whether there has been compliance with or a contravention of this Act or the regulations or any notice issued under this Act to answer questions in relation to those matters.

(2) The Regulatory Authority may, by notice in writing, require a corporation to nominate, in writing within the time specified in the notice, a director or officer of the corporation to be the corporation’s representative for the purpose of answering questions under this section.

(3) Answers given by a person nominated under subsection (2) bind the corporation.

(4) A person must not—

(a) fail or refuse to comply with a requirement under subsection (1) or (2), or

(b) in purported compliance with such a requirement, give an answer that is false or misleading in a material particular.

Maximum penalty—

(a) in the case of a corporation—$250,000 and, in the case of a continuing offence, a further penalty of $30,000 for each day the offence continues, or

(b) in the case of an individual—$120,000 and, in the case of a continuing offence, a further penalty of $15,000 for each day the offence continues.

(5) An authorised officer may, by notice in writing, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.

(6) The place and time at which a person may be required to attend under subsection (5) is to be—

(a) a place and time nominated by the person, or

(b) if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised officer that is reasonable in the circumstances.

Requirement to provide information and records

71 Requirement to provide information and records

(1) The Regulatory Authority may, by notice in writing given to a person, require the person to provide to the Authority such information or records (or both) as the Authority requires by the notice in connection with determining whether there has been compliance with or a contravention of this Act or the regulations or any notice issued under this Act.

(2) A person must not—

(a) fail or refuse to comply with a requirement under subsection (1), or

(b) in purported compliance with such a requirement, give information, or provide a record, that is false or misleading in a material particular.

Maximum penalty—

(a) in the case of a corporation—$250,000 and, in the case of a continuing offence, a further penalty of $30,000 for each day the offence continues, or

(b) in the case of an individual—$120,000 and, in the case of a continuing offence, a further penalty of $15,000 for each day the offence continues.

Provisions relating to records

72 Provisions relating to records

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

(2) The Regulatory Authority may take copies of any record provided to the Authority under this Division.

(3) If any record required to be provided under this Division is in electronic, mechanical or other form, the notice is taken to require the record to be provided in written form, unless the notice otherwise provides.

Requirement to state name and address or produce driver licence

73 Requirement to state name and address or produce driver licence

(1) An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to be offending against this Act or the regulations to state the person’s full name and residential address.

(2) An authorised officer may require the driver of a motor vehicle in a declared catchment area to produce his or her driver licence and to state his or her full name and residential address.

(3) An authorised officer may request a person who is required under this section to state his or her full name and residential address to provide proof of the name and address. It is not an offence against this section to fail to comply with any such request.

(4) A person must not—

(a) fail or refuse to comply with a requirement under subsection (1) or (2), or

(b) in purported compliance with such a requirement, state a name that is not the person’s name or an address that is not the person’s residential address or produce the driver licence of another person.

Maximum penalty—100 penalty units.

Requirement for owner of motor vehicle and others to give information

74 Requirement for owner of motor vehicle and others to give information

(1) If the Regulatory Authority or an authorised officer suspects on reasonable grounds that the driver of a motor vehicle has committed an offence against this Act or the regulations, the Regulatory Authority or the authorised officer may—

(a) require the owner of the vehicle, or the person in whose name it is registered, or the person having the custody of the vehicle, to give information (which must, if so required, be given in the form of a statement in writing, signed by that owner or person) as to the name and residential address of the driver, or

(b) require any other person to give any information which is in that other person’s power to give and which may lead to the identification of the driver.

(2) A person must not—

(a) fail or refuse to comply with a requirement under subsection (1), or

(b) in purported compliance with such a requirement, give any information that is false or misleading in a material particular.

Maximum penalty—100 penalty units.

(3) In a prosecution for an offence in respect of a failure or refusal to comply with a requirement under subsection (1) (a), it is a defence if the defendant proves to the satisfaction of the court that the defendant did not know and could not with reasonable diligence have ascertained the name or residential address of the driver concerned, or both, as the case may require.

(4) If a statement in writing purporting to be provided under subsection (1) (a) and to contain particulars of the name and residential address of the driver of a motor vehicle at the time of commission of an alleged offence against this Act or the regulations is produced in any court in proceedings against the person named in the statement as the driver for the offence, the statement is, if that person does not appear before the court, evidence without proof of signature that the person was the driver of the vehicle at that time.

Provisions relating to requirements to provide records, information or answer questions

75 Provisions relating to requirements to provide records, information or answer questions

(1) A person is not guilty of an offence of failing to comply with a requirement under this Division to provide records or information or to answer a question unless the person was warned on the relevant occasion that a failure to comply is an offence.

(2) A person is not excused from a requirement under this Division to provide records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.

(3) However, any information provided or answer given by a natural person in compliance with a requirement under this Division is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence against this Division) if—

(a) the person objected at the time to doing so on the ground that it might incriminate the person, or

(b) the person was not warned on the relevant occasion that the person may object to providing the information or giving the answer on the ground that it might incriminate the person.

(4) Any record provided by a person in compliance with a requirement under this Division is not inadmissible in evidence against the person in criminal proceedings on the ground that the record might incriminate the person.

(5) Further information obtained as a result of a record or information provided or of an answer given in compliance with a requirement under this Division is not inadmissible on the ground—

(a) that the record or information had to be provided or the answer had to be given, or

(b) that the record or information provided or answer given might incriminate the person.

(6) This section extends to a requirement under this Division to state a person’s name and address.

pt.6-div.4-sdiv.1

Definitions

pt.6-div.4-sdiv.1 Definitions

Subdivision 1 Definitions

Definitions

76 Definitions

In this Division—

catchment correction notice means a notice under Subdivision 2.

catchment protection notice means a notice under Subdivision 3.

compliance cost notice means a notice under section 86.

corrective action, in relation to a targeted activity, includes the following—

(a) action to prevent, minimise, remove, disperse, destroy or mitigate any adverse impact on water quality or catchment health resulting or likely to result from the activity,

(b) ascertaining the nature and extent of the targeted activity and of the actual or likely resulting adverse impact on water quality or catchment health,

(c) preparing and carrying out a remedial plan of action.

targeted activity means an activity in a special area or controlled area that has, or is likely to have, caused damage to, or detrimentally affected, the quality of any water, or the catchment health of any land, in the area concerned.

pt.6-div.4-sdiv.2

Catchment correction notices

pt.6-div.4-sdiv.2 Catchment correction notices

Subdivision 2 Catchment correction notices

Corrective action by occupiers or persons carrying on certain activities

77 Corrective action by occupiers or persons carrying on certain activities

(1) The Regulatory Authority may, by notice in writing (a catchment correction notice), do either or both of the following—

(a) direct an occupier of land on or from which the Regulatory Authority reasonably suspects that a targeted activity has been carried out or is being carried out,

(b) direct a person who is reasonably suspected by the Regulatory Authority of carrying out or having carried out a targeted activity,

to take the corrective action specified in the notice within such period as is specified in the notice.

(2) The catchment correction notice may require the person to whom the notice is given to provide reports to the Regulatory Authority regarding progress on the carrying out of the corrective action.

(3) If the person given a catchment correction notice complies with the notice but was not the person who carried out the targeted activity, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who carried out the targeted activity.

(4) A catchment correction notice, or a variation of a catchment correction notice, operates from the day the notice or notice of the variation is given or from such later day as the notice specifies.

(5) A person who, without reasonable excuse, does not comply with a catchment correction notice given to the person is guilty of an offence.

Maximum penalty—

(a) in the case of a corporation—$250,000 and, in the case of a continuing offence, a further penalty of $30,000 for each day the offence continues, or

(b) in the case of an individual—$120,000 and, in the case of a continuing offence, a further penalty of $15,000 for each day the offence continues.

Note.

An offence against subsection (5) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 95.

Corrective action by public authorities

78 Corrective action by public authorities

(1) If the Regulatory Authority reasonably suspects that a targeted activity has been carried out or is being carried out, the Regulatory Authority may, by notice in writing, direct a public authority to take such corrective action as is specified in the notice. The public authority is authorised and required to take that action.

(2) If a public authority reasonably suspects that a targeted activity has been carried out or is being carried out, the public authority may take such corrective action as it considers necessary. The public authority is authorised to take that action, whether or not it is directed to take corrective action under subsection (1).

(3) Notices may be given, and action may be taken, under this section whether or not a catchment correction notice has been given under section 77, and (if such a notice has been given) whether or not the period specified in the notice under that section has expired.

(4) A public authority may take corrective action under this section by itself or by its employees, agents or contractors.

(5) In this section—

public authority does not include a State owned corporation.

Catchment correction notice may be given orally

79 Catchment correction notice may be given orally

(1) The Regulatory Authority may, instead of giving a direction under this Subdivision by notice in writing, cause the direction to be given orally by an authorised officer.

(2) A direction given orally to a person ceases to have effect on the expiration of the period of 72 hours after the time it was given unless confirmed by the Regulatory Authority by a correction notice in writing given to the person within that period.

(3) A direction given orally has the same effect as a direction given by notice in writing, and is taken to be a catchment correction notice.

Fee for catchment correction notice

80 Fee for catchment correction notice

(1) The purpose of this section is to enable the Regulatory Authority to recover the administrative costs of preparing and giving catchment correction notices.

(2) A person who is given a catchment correction notice under section 77 must, within 30 days after the notice is given, pay the fee prescribed under section 94 of the Protection of the Environment Operations Act 1997 to the Regulatory Authority.

(3) The Regulatory Authority may—

(a) extend the time for payment of the fee, on the application of the person given the catchment correction notice, or

(b) waive payment of the whole or any part of the fee, on the Regulatory Authority’s own initiative or on the application of the person.

(4) A person who does not pay the fee within the time required under this section is guilty of an offence.

Maximum penalty—200 penalty units.

pt.6-div.4-sdiv.3

Catchment protection notices

pt.6-div.4-sdiv.3 Catchment protection notices

Subdivision 3 Catchment protection notices

Preventive action

81 Preventive action

(1) This section applies when the Regulatory Authority reasonably suspects that a targeted activity has been, will be or is being carried out on any land in a special area or a controlled area.

(2) The Regulatory Authority may, by notice in writing (a catchment protection notice), do either or both of the following—

(a) direct the occupier of the land,

(b) direct the person carrying on the activity,

to take such action, as is specified in the notice within such period (if any) as is specified in the notice, to ensure that either the targeted activity is not commenced, is no longer carried on, or if the targeted activity is permitted to be carried on in future, it is carried on in a manner that does not cause damage to, or detrimentally affect, the quality of any water, or the catchment health of any land, in the special area or controlled area.

(3) The action to be taken may (without limitation) include any of the following—

(a) ceasing to carry on or not commencing to carry on an activity,

(b) carrying on an activity in a particular manner,

(c) carrying on an activity only during particular times,

(d) preparing and carrying out a plan of action to control, prevent or minimise any damage to, or detrimental effect on, the quality of any water, or the catchment health of any land, in the special area or controlled area.

(4) If the occupier who is given a notice is not the person carrying on the targeted activity, the notice is taken to require the occupier to take all available steps to cause the action to be taken by the person carrying on the targeted activity.

(5) A catchment protection notice may require the person to whom the notice is given to provide reports to the Regulatory Authority regarding progress on carrying out the action required to be taken by the notice.

(6) A person who does not comply with a catchment protection notice given to the person is guilty of an offence.

Maximum penalty—

(a) in the case of a corporation—$250,000 and, in the case of a continuing offence, a further penalty of $30,000 for each day the offence continues, or

(b) in the case of an individual—$120,000 and, in the case of a continuing offence, a further penalty of $15,000 for each day the offence continues.

Note.

An offence against subsection (6) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 95.

Action in event of failure to comply

82 Action in event of failure to comply

If a person does not comply with a catchment protection notice given to the person, the Regulatory Authority may take action to cause the notice to be complied with by the Regulatory Authority or by his or her employees, agents or contractors.

Commencement of operation of catchment protection notice or variation of catchment protection notice

83 Commencement of operation of catchment protection notice or variation of catchment protection notice

(1) A catchment protection notice, or a variation of a catchment protection notice, operates from the day the notice or notice of the variation is given or from such later day as the notice specifies.

(2) If an appeal is made against a catchment protection notice or the variation of a catchment protection notice and the Land and Environment Court directs that the notice is stayed, the notice or variation does not operate until the stay ceases to have effect or the Land and Environment Court confirms the notice or the appeal is withdrawn, whichever first occurs.

Fee for catchment protection notice

84 Fee for catchment protection notice

(1) The purpose of this section is to enable the Regulatory Authority to recover the administrative costs of preparing and giving catchment protection notices.

(2) A person who is given a catchment protection notice must, within 30 days after the notice is given, pay the fee prescribed under section 94 of the Protection of the Environment Operations Act 1997 to the Regulatory Authority.

(3) The Regulatory Authority may—

(a) extend the time for payment of the fee, on the application of the person given the notice, or

(b) waive payment of the whole or any part of the fee, on the Regulatory Authority’s own initiative or on the application of the person.

(4) The fee is not payable during the currency of an appeal against the catchment protection notice.

(5) If the decision of the Land and Environment Court on an appeal does not invalidate the catchment protection notice, the fee is payable within 30 days of the decision.

(6) A person who does not pay the fee within the time required under this section is guilty of an offence.

Maximum penalty—200 penalty units.

Appeals against catchment protection notices

85 Appeals against catchment protection notices

(1) A person served with a catchment protection notice may, within 21 days (or such other period as is prescribed by the regulations) after being served with the notice, appeal to the Land and Environment Court against the notice.

(2) The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the notice appealed against.

(3) There is no appeal against a decision not to extend the time for complying with a catchment protection notice.

(4) For the purposes of this section, a catchment protection notice includes a notice that varies a catchment protection notice.

pt.6-div.4-sdiv.4

Compliance costs

pt.6-div.4-sdiv.4 Compliance costs

Subdivision 4 Compliance costs

Compliance cost notices

86 Compliance cost notices

(1) The Regulatory Authority may, by notice in writing, require a person to whom a catchment correction notice has been given to pay all or any reasonable costs and expenses incurred by the Regulatory Authority in connection with—

(a) monitoring action required to be taken by the notice, and

(b) ensuring that the notice is complied with, and

(c) any other associated matters.

(2) A public authority that takes corrective action under section 78 may, by notice in writing, require—

(a) the occupier of the land on or from which the authority reasonably suspects that the targeted activity was carried out, or

(b) the person who is reasonably suspected by the authority of having carried out the targeted activity,

or both, to pay all or any reasonable costs and expenses incurred by it in connection with the corrective action.

(3) If the Regulatory Authority takes action under section 82 because a catchment protection notice is not complied with, the Regulatory Authority may, by notice in writing, require the person to whom the catchment protection notice was given to pay all or any reasonable costs and expenses incurred by the Regulatory Authority in taking the action.

Recovery of amounts

87 Recovery of amounts

(1) The Regulatory Authority or a public authority may recover any unpaid amounts specified in a compliance cost notice as a debt in a court of competent jurisdiction.

(2) If the person given a compliance cost notice complies with the notice but was not the person who carried out the targeted activity, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who carried out the targeted activity.

Registration of compliance cost notices in relation to land

88 Registration of compliance cost notices in relation to land

(1) If a compliance cost notice has been given by the Regulatory Authority or a public authority to a person, the Regulatory Authority or the public authority may apply to the Registrar-General for registration of the notice in relation to any land owned by the person.

(2) An application under this section must define the land to which it relates.

(3) The Registrar-General must, on application under this section and lodgment of a copy of the compliance cost notice, register the notice in relation to the land in such manner as the Registrar-General thinks fit.

(4) If the notice relates to land under the provisions of the Real Property Act 1900, the notice is to be registered under that Act.

Charge on land subject to compliance cost notice

89 Charge on land subject to compliance cost notice

(1) This section applies where a compliance cost notice is registered under section 88, on the application of the Regulatory Authority or a public authority, in relation to particular land owned by a person.

(2) There is created by force of this section, on the registration of the notice, a charge on the land in relation to which the notice is registered to secure the payment to the Regulatory Authority or the public authority of the amount specified in the notice.

(3) Such a charge ceases to have effect in relation to the land—

(a) on payment to the Regulatory Authority or the public authority of the amount concerned, or

(b) on the sale or other disposition of the land with the consent in writing of the Regulatory Authority or the public authority, or

(c) on the sale of the land to a purchaser in good faith for value who, at the time of the sale, has no notice of the charge,

whichever first occurs.

(4) Such a charge is subject to every charge or encumbrance to which the land was subject immediately before the notice was registered.

(5) Such a charge is not affected by any change of ownership of the land, except as provided by subsection (3).

(6) If—

(a) such a charge is created on land of a particular kind and the provisions of any law of the State provide for the registration of title to, or charges over, land of that kind, and

(b) the charge is so registered,

a person who purchases or otherwise acquires the land after the registration of the charge is, for the purposes of subsection (3), taken to have notice of the charge.

(7) The regulations may make provision about the removal of a charge under this section.

(8) The Regulatory Authority or a public authority may, by notice in writing, require the person to whom the compliance cost notice was given to pay all or any of the reasonable costs and expenses incurred by the Regulatory Authority or the public authority in respect of the lodgment or registration of the compliance cost notice and the registration of any resulting charge (including the costs of discharging the charge). The Regulatory Authority or the public authority may recover any unpaid amounts specified in the notice as a debt in a court of competent jurisdiction.

s 89: Am 2024 No 80, Sch 3[8].

pt.6-div.4-sdiv.5

General

pt.6-div.4-sdiv.5 General

Subdivision 5 General

Multiple notices

90 Multiple notices

More than one notice under a provision of this Division may be given to the same person.

No fee for revocation or variation

91 No fee for revocation or variation

A fee is not payable for the variation of a notice under this Division.

Obstruction of persons

92 Obstruction of persons

A person who wilfully delays or obstructs—

(a) a person who is carrying out any action in compliance with a catchment correction notice or a catchment protection notice, or another person authorised by the person to carry it out, or

(b) a public authority that is taking corrective action under section 78, or any person authorised by the public authority to take corrective action under section 78,

is guilty of an offence.

Maximum penalty—

(a) in the case of a corporation—$250,000 and, in the case of a continuing offence, a further penalty of $30,000 for each day the offence continues, or

(b) in the case of an individual—$120,000 and, in the case of a continuing offence, a further penalty of $15,000 for each day the offence continues.

Illegal diversion of water

93 Illegal diversion of water

A person must not—

(a) wrongfully take, use or divert any water that is available for supply by Water NSW or that is in any pipe or work used for supply by Water NSW, or

(b) wrongfully alter the index of a meter or prevent a meter from duly registering the quantity of water supplied by Water NSW.

Maximum penalty—

(a) in the case of a corporation—$250,000 and, in the case of a continuing offence, a further penalty of $30,000 for each day the offence continues, or

(b) in the case of an individual—$120,000 and, in the case of a continuing offence, a further penalty of $15,000 for each day the offence continues.

Offence to discharge into works

94 Offence to discharge into works

(1) A person must not discharge any substance into a work owned by or under the control of Water NSW except with the agreement in writing of Water NSW.

Maximum penalty—

(a) in the case of a corporation—$250,000 and, in the case of a continuing offence, a further penalty of $30,000 for each day the offence continues, or

(b) in the case of an individual—$120,000 and, in the case of a continuing offence, a further penalty of $15,000 for each day the offence continues.

Note.

An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 95.

(2) This section does not apply to the use of a work by a person in accordance with a contract or arrangement between Water NSW and a person.

Liability of directors etc for offences by corporation—offences attracting executive liability

95 Liability of directors etc for offences by corporation—offences attracting executive liability

(1) For the purposes of this section, an executive liability offence is—

(a) an offence against any of the following provisions of this Act that is committed by a corporation—

(i) section 77 (5),

(ii) section 81 (6),

(iii) section 94 (1), or

(b) an offence against the regulations—

(i) that is prescribed by the regulations as an offence to which this section applies, and

(ii) that is committed by a corporation.

(2) A person commits an offence against this section if—

(a) a corporation commits an executive liability offence, and

(b) the person is—

(i) a director of the corporation, or

(ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and

(c) the person—

(i) knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and

(ii) fails to take all reasonable steps to prevent or stop the commission of that offence.

Maximum penalty—The maximum penalty for the executive liability offence if committed by an individual.

(3) The prosecution bears the legal burden of proving the elements of the offence against this section.

(4) The offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence.

(5) This section does not affect the liability of the corporation for the executive liability offence, and applies whether or not the corporation is prosecuted for, or convicted of, the executive liability offence.

(6) This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are accessories to the commission of the executive liability offence or are otherwise concerned in, or party to, the commission of the executive liability offence.

(7) In this section—

director has the same meaning it has in the Corporations Act 2001 of the Commonwealth.

reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances—

(a) action towards—

(i) assessing the corporation’s compliance with the provision creating the executive liability offence, and

(ii) ensuring that the corporation arranged regular professional assessments of its compliance with the provision,

(b) action towards ensuring that the corporation’s employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,

(c) action towards ensuring that—

(i) the plant, equipment and other resources, and

(ii) the structures, work systems and other processes,

relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,

(d) action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

Liability of directors etc for offences by corporation—accessory to the commission of the offences

96 Liability of directors etc for offences by corporation—accessory to the commission of the offences

(1) For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation, whether or not it is an executive liability offence referred to in section 95.

(2) A person commits an offence against this section if—

(a) a corporation commits a corporate offence, and

(b) the person is—

(i) a director of the corporation, or

(ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and

(c) the person—

(i) aids, abets, counsels or procures the commission of the corporate offence, or

(ii) induces, whether by threats or promises or otherwise, the commission of the corporate offence, or

(iii) conspires with others to effect the commission of the corporate offence, or

(iv) is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence.

Maximum penalty—The maximum penalty for the corporate offence if committed by an individual.

(3) The prosecution bears the legal burden of proving the elements of the offence against this section.

(4) The offence against this section can only be prosecuted by a person who can bring a prosecution for the corporate offence.

(5) This section does not affect the liability of the corporation for the corporate offence, and applies whether or not the corporation is prosecuted for, or convicted of, the corporate offence.

(6) This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are concerned in, or party to, the commission of the corporate offence.

Persons causing offences

97 Persons causing offences

(1) A person—

(a) who causes the commission of an offence against this Act or the regulations, or

(b) by whose order or direction an offence against this Act or the regulations is committed, or

(c) who aids, abets, counsels or procures the commission of an offence against this Act or the regulations,

is guilty of an offence against this Act or the regulations and liable to a penalty in the same way as the principal offender.

(2) A person may be proceeded against for an offence against subsection (1) whether or not the principal offender has been prosecuted or convicted.

(3) A person does not commit an offence because of this section for any act or omission that is an offence against section 96.

Continuing offences

98 Continuing offences

(1) A person who is guilty of an offence because the person fails to comply with a requirement made by or under this Act or the regulations (whether the requirement is imposed by a notice or otherwise) to do or cease to do something (whether or not within a specified period or before a particular time)—

(a) continues, until the requirement is complied with and despite the fact that any specified period has expired or time has passed, to be liable to comply with the requirement, and

(b) is guilty of a continuing offence for each day the contravention continues.

(2) This section does not apply to an offence if the relevant provision of this Act or the regulations does not provide for a penalty for a continuing offence.

(3) This section does not apply to the extent that a requirement of a notice is revoked.

Onus of proof of certain matters

99 Onus of proof of certain matters

In any proceedings under this Act, the onus of proving that a person had a reasonable excuse or lawful excuse (as referred to in any provision of this Act or the regulations) lies with the defendant.

More sections below

Source text: opening excerpt

Sourced from legislation.nsw.gov.au, CC BY 4.0.

Part 1 Preliminary

1 Name of Act

This Act is the Water NSW Act 2014.

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

3 Definitions

(1) In this Act—

area of operations of Water NSW—see section 15.

assets—see clause 2 (1) of Schedule 1.

authorised officer means a person who has been appointed as an authorised officer under this Act.

board means the board of directors of Water NSW.

catchment audit means an audit conducted under section 42.

catchment health, in relation to a declared catchment area, means the condition of ecosystems and systems of management (such as sewerage and stormwater systems) in that catchment that protect water quality.

catchment infrastructure works means—

(a) water storages, water mains, or connected or associated works, or

(b) monitoring devices in, under, over or near any works referred to in paragraph (a), or

(c) any works ancillary or antecedent to any works referred to in paragraph (a) or (b), or

(d) hydro-electric plants or associated infrastructure or works,

and includes anything prescribed by the regulations as being within this definition, but excludes anything prescribed by the regulations as being outside this definition.

catchment management means the management of land and water resources in a declared catchment area.

chief executive officer means the chief executive officer of Water NSW.

controlled area means an area of land for the time being declared under this Act to be a controlled area.

county council means a county council under the Local Government Act 1993.

declared catchment area means an area of land for the time being declared under this Act to be a declared catchment area.

Department means the Department of Industry, Skills and Regional Development.