When the Natural Resources Access Regulator investigates: powers, evidence and civil penalties

When the Natural Resources Access Regulator (NRAR) makes contact, the first task is to identify the power being exercised. A request for voluntary assistance is not the same as a compulsory information notice. An interview requirement, inspection, direction, proposed water charge or allocation debit, and court proceeding each raises different obligations, protections and deadlines.

The distinction has become more important under the Water Management Act 2000 (NSW) (WMA). Its civil penalty regime commenced on 1 January 2026. A civil penalty is a sum of money that the Land and Environment Court may order a person to pay in civil proceedings, without a criminal conviction. Other enforcement amendments commenced earlier. Transitional provisions may also apply the amended regime to earlier conduct. The provision relied on, the date of the alleged conduct and the procedural step all matter.

Identify the power being used before responding

Record the date and method of service, the sender, the named recipient, the provision relied on and every response date. Then determine:

• Is cooperation being sought voluntarily?
• Is information or production of records required under section 338A?
• Are answers or attendance at an interview required under section 338B?
• Is an authorised officer exercising a power of entry under section 339, subject to the residential limit in section 339A, or an inspection or seizure power under section 339B?
• Is there a search warrant under section 339C?
• Does a Chapter 7, Part 1 direction require operational or remedial action?
• Is there a proposed charge or allocation debit, penalty notice, licence or approval decision, or threatened proceeding?

The WMA expresses most of the powers discussed below as powers of “the Minister” or of an “authorised officer”. The notes to many of those sections refer to section 11(1)(e) of the Natural Resources Access Regulator Act 2017 (NSW), under which NRAR exercises functions of this kind, so the notice or decision a reader holds will often come from NRAR or one of its officers.

A voluntary conversation may later become evidence. It is not compulsory merely because a regulator asks for it. Conversely, a compulsory requirement should not be treated as optional. In the course of exercising a function, an authorised officer must produce evidence of the officer’s authority if a person affected asks: section 340.

Preserve the evidence before explaining it

Preserve originals and metadata before collecting records or giving an account of events. Depending on the issue, that may include meter and telemetry exports, alarms, photographs, maps, maintenance records, water orders, allocation statements, invoices, contractor records, messages and regulator correspondence. Suspend routine deletion. Do not reconstruct, alter or backdate a record.

Map the relevant entities and people; licences, allocation accounts, approvals, works and extraction points; infrastructure and metering; and applicable licence conditions and water-sharing-plan rules. Record who operated, maintained and reported on each work, and identify each requested record’s source, custodian, date range and status.

That work should be legal and technical from the outset. The legal analysis identifies the power, elements, recipient, privilege and potential exposure. A hydrologist, surveyor, metering specialist or agronomist may need to test volumes, infrastructure, spatial imagery or another proposed explanation. Technical evidence should be reproducible and directed to the precise allegation.

Compulsory powers have different limits

Notices to provide information or records (section 338A)

Under section 338A(1) and section 338A(2), the Minister or an authorised officer may, by written notice, require information, existing records or both for the purposes of the WMA. The notice must specify how compliance is to occur and allow a reasonable time: section 338A(3). The records must be in the recipient’s possession or within the recipient’s power to obtain lawfully: section 338A(4).

The principal NSW decision on section 338A notices is Harris v Mathieson (in his capacity as an authorised officer under the Water Management Act 2000 (NSW)) [2019] NSWSC 1064, decided by Davies J.

At [24], Davies J distilled the governing principles from earlier Federal Court authorities. A notice must “convey with reasonable clarity” what information or documents are required: [24(a)], drawing on the Full Court of the Federal Court in Pyneboard Pty Ltd v Trade Practices Commission and Bannerman (1982) 39 ALR 565; 57 FLR 368 at 374. The material sought must be capable of being properly regarded as related to the potential contravention: [24(b)]. The notice must also “disclose the relationship between the information sought and the matter in respect of which the information is sought”: [24(c)], drawing on Pyneboard at 375 and the Full Court of the Federal Court in SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 370.

Those requirements are not applied in a “precious, over-technical or hypercritical way”: Davies J at [24(d)]. Nor is burden, by itself, an objection where the necessary relationship exists: [24(e)], drawing on the Full Court of the Federal Court in Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 31 ALR 519; 47 FLR 163 at 173. The power is investigative and may be used to pursue a further line of inquiry: [24(f)–(g)].

Davies J observed at [18] that the earlier cases concerned a different Commonwealth power and that there appeared to be no authority dealing directly with notices of the kind before the Court. His Honour set aside both notices after considering their terms and the evidence: [94]–[95]. The decision does not permit a recipient simply to ignore a notice thought to be too broad. Clarification, variation or any challenge should be addressed before the due date.

Extensions of time need a further notice

Only the Minister, or the person who gave the notice, can revoke or vary a notice under Chapter 7, Part 2, including by extending the time for compliance, and only by a further notice: section 340C. A request for more time does not itself change the deadline. The original date stands unless and until a further notice changes it.

Requirements to answer questions or attend an interview (sections 338B and 338C)

Section 338B(1) permits an authorised officer to require answers from a person reasonably suspected to know matters about which information is reasonably required for the purposes of the WMA. The Minister may require a corporation to nominate a director or officer whose answers bind it: section 338B(2) and section 338B(3). An authorised officer may also require attendance where that is reasonably required for questions to be properly put and answered: section 338B(4).

Questions and answers may be recorded after the officer informs the person that a record will be made, and a copy must be provided as soon as practicable: section 338C. Before an interview, settle who is answering and in what capacity, what documents may be used, whether an interpreter is required and how any objection will be made.

Entry, inspection and seizure (sections 339 to 339J)

Section 339 permits an authorised officer to enter premises at a reasonable time, including by drone or another remotely controlled craft. It does not authorise entry to a part of premises used only for residential purposes without the occupier’s permission or a search warrant: section 339A.

At premises lawfully entered, section 339B permits inspection, sampling, testing, recordings, production and copying of records, and seizure of a thing reasonably believed to be connected with a contravention. An officer who seizes a thing must, within 24 hours, take all reasonable steps to give a receipt to the person from whom it was seized: section 339B(4).

Keep a contemporaneous log of the inspection and any material copied or seized. A seized thing must ordinarily be released after 12 months unless the Minister extends the return period on the statutory grounds: section 339J. Do not remove, alter or interfere with it without the approval required by section 339I.

Failing to comply, or giving false information, has its own consequences

Section 340A creates Tier 2 offences (criminal offences) and Tier C civil penalty provisions (Tier C is the lowest of the three civil penalty tiers in the table below) for specified non-compliance, knowingly furnishing materially false or misleading information, obstructing an authorised officer and impersonating an authorised officer. A failure to furnish records or information, or to answer a question, is not an offence or civil penalty contravention unless the person was warned on that occasion that the failure may be one: section 340B(1). If an answer is not known, say so and explain what enquiries were made. Do not guess.

Answers must still be given, but some protections remain

The self-incrimination provisions are specific. Under section 340B(2), a person is not excused from furnishing a record or information, or answering a question, because it may incriminate the person or expose the person to a penalty.

Section 340B(3) gives limited protection to an individual (a “natural person”, as distinct from a company) who is required to give information or answer a question. It applies if the individual objects at the time on self-incrimination grounds, or was not warned on that occasion that they could object. Broadly, the information or answer itself is then not admissible in evidence against that individual in criminal proceedings or proceedings for a civil penalty contravention. An individual who wants the protection should therefore object when giving the information or answer, not afterwards.

The protection does not extend to proceedings for an offence or contravention under Chapter 7, Part 2 itself, such as furnishing false or misleading information. It is not a right to silence or a general immunity. It does not prevent a record that existed before the requirement was made (such as a meter log or invoice) from being used in evidence: section 340B(4). Nor does it prevent further information, obtained because of what was provided, from being used in evidence: section 340B(5).

Legal professional privilege, which protects certain confidential communications with lawyers, is different. In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49, the High Court (Gleeson CJ, Gaudron, Gummow and Hayne JJ) said at [11] that privilege is “an important common law immunity” and is not abrogated (taken away by legislation) “in the absence of clear words or a necessary implication”. Section 340B does not expressly abolish privilege, so the question under Daniels is whether the WMA does so by necessary implication.

That does not make an operational record privileged merely because it was given to a lawyer. Any claim should be made document by document and supported by the facts said to establish privilege.

Directions, charges and appeals may run beside the investigation

A Chapter 7, Part 1 direction can require operational or remedial action, and may require it before the investigation is complete. The Minister need not give prior notice before issuing it: section 336D. Failure to comply is a Tier 2 offence and a Tier C civil penalty contravention: section 336C. A decision to give a direction can be appealed, but only within 28 days after the date on which the decision was made, and lodging an appeal does not stay the direction unless the Land and Environment Court directs otherwise (see below).

Treat the direction as a separate compliance project. Extract each measure, responsible person and date; identify safety, operational and approval dependencies; and keep dated evidence of implementation. If remedial measures are not taken, the Minister may appoint a person to carry them out after reasonable notice, with the resulting costs recoverable from the recipient: section 336H. That appointee has the entry powers in section 336I.

Water charges and allocation debits are administrative decisions, distinct from court-ordered penalties. Under section 60G, if the Minister is satisfied on the balance of probabilities (that is, more likely than not) that a person has taken water in contravention of the access-licence provisions in Chapter 3, Part 2, Division 1A, the Minister may do either or both of the following:

• impose a charge of between one and five times the value of the water taken;
• if the person holds an access licence, order that between one and five times the volume taken be debited from the allocations credited, or to be credited, to that licence’s allocation account (that is, deducted from water already in the account or water yet to be credited to it).

The Minister must first give written notice, allow 28 days or a longer period determined by the Minister for submissions, and consider any submission: section 60G(2). The value must be determined in accordance with a prescribed methodology: section 60G(5).

Section 91O creates a corresponding charge where water was taken in connection with a contravention of section 91B(1) or (2), section 91G(1) or (2), section 91H(1) or (2) or section 91I(2). Its notice also allows 28 days, or a longer period determined by the Minister, for submissions: section 91O(3).

Both charges have time and double-jeopardy limits. A charge or debit must be imposed within three years. The three years run from the day the contravention occurred or, if later, the day evidence of it first came to the attention of an authorised officer: section 60G(8) and section 91O(8). Neither may be imposed on a person who has been found guilty of an offence, or made the subject of a civil penalty order, for the same conduct: section 60G(7)(b) and section 91O(7)(b). A charge under one of the two sections does not, however, prevent a charge under the other for substantially the same conduct: section 60G(7)(a) and section 91O(7)(a).

Section 368 gives a right of merits appeal to the Land and Environment Court for the decisions it lists. In a merits appeal, the Court decides the matter afresh on the evidence, rather than asking only whether the decision was lawful. The listed decisions include a section 60G decision, a decision to impose a charge under section 91O and a decision to give a Chapter 7, Part 1 direction. Under section 368(3), an appeal must be made in accordance with the rules of court and “may not be made more than 28 days after the date on which the decision was made”. The 28 days run from the date the decision was made, which may be earlier than the date it is received. Lodging an appeal does not stay (suspend) the decision unless the Land and Environment Court directs otherwise: section 368(5). Without such a direction, the decision continues to operate while the appeal is pending.

Not every contact from NRAR is an appealable decision. A voluntary request, information notice, inspection or investigative step does not carry a merits appeal merely because it has practical consequences. Judicial review for jurisdictional or legal error, in which a court considers whether a decision or step was lawful rather than whether it was right, is a different process.

Civil penalty exposure depends on the provision and the person involved

Under Chapter 7, Part 6, the Minister may bring civil penalty proceedings in the Land and Environment Court for a contravention of a provision that the WMA marks with a civil penalty tier. The proceedings must be brought within three years. The three years run from the day the contravention occurred or, if later, the day it first came to the attention of an authorised officer: section 370G. Section 370F sets these maximums:

Tier	Individual maximum	Corporation maximum
A	greater of 45,450 penalty units or five times the value of water taken; plus 2,200 units for each continuing day	greater of 90,900 penalty units or five times the value of water taken; plus 4,500 units for each continuing day
B	45,450 penalty units; plus 2,200 units for each continuing day	90,900 penalty units; plus 4,500 units for each continuing day
C	23,000 penalty units; plus 1,100 units for each continuing day	46,000 penalty units; plus 2,200 units for each continuing day

These are ceilings, not standard outcomes. When fixing a civil penalty, section 370R(2) requires the Court to consider the nature and extent of the contravention, actual and potential environmental harm or detriment to the public interest, the circumstances, the benefit the person stood to gain, prior findings of similar conduct, any section 60G action or section 91O charge, and other relevant matters.

For many civil penalty provisions, section 370P removes the need to prove intention, knowledge, recklessness, negligence or another state of mind. In other words, for those provisions the Minister need not show that the person intended the contravention, knew of it, or was reckless or careless. That rule does not apply to the specified contraventions in section 91J(2), section 340A(2) and section 344(1) or (2), or to liability attributed under section 370B, section 370C or section 370D. A defence of honest and reasonable mistake of fact remains available: broadly, it applies where the person held an honest and reasonable, but mistaken, belief about facts which, if true, would have meant there was no contravention. A person relying on an exception, exemption, excuse, qualification or justification bears the evidential burden, meaning the person must point to evidence suggesting that the exception or excuse applies: section 370Q.

Exposure can extend beyond the immediate operator. A person involved in, causing or permitting a contravention may also be liable: section 370B. So may a director or manager who knowingly authorised or permitted a corporation’s contravening act or omission: section 370C. Section 370D attributes liability to co-holders (for example, people who hold a licence jointly), subject to three statutory conditions. Those conditions concern another, unassociated person and the reasonable steps taken to prevent the contravention, so each should be checked against the facts.

Criminal and civil pathways are not interchangeable. Section 370J prevents civil penalty proceedings from being commenced after criminal proceedings against the same person for substantially the same conduct, and requires existing civil proceedings to be dismissed if the criminal case begins. Section 370K permits criminal proceedings to follow civil proceedings. The evidentiary protection in section 370L is confined to the circumstances stated there; it is not a general immunity.

In Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450; [2022] HCA 13, the High Court (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) explained at [15]–[16] that civil penalties are protective and directed to deterrence, that is, to discouraging future contraventions. Those general principles guide how the Court fixes a penalty, but do not replace the WMA maximums or the matters the Court must consider under section 370R(2).

Metering evidence must be tested, not assumed

Meter and telemetry data are not self-explanatory. Obtain device specifications, installation and certification records, maintenance and fault history, raw telemetry, configuration history, calibration or laboratory evidence and the applicable conditions.

A holder of an approval for a work (such as a pump or bore) who becomes aware that installed metering equipment is not operating, or not operating properly, must give the prescribed notice within 24 hours after becoming aware of that fact. Failing to do so is a Tier 2 offence and a Tier C civil penalty contravention: section 91IA.

Metering obligations are also tightening. For works nominated by a total entitlement of 100 ML or more, the Department’s metering guidance states that inland users must comply now and coastal users by 1 December 2026; smaller users with an entitlement above 15 ML and below 100 ML have until 1 December 2027 or the renewal of their work approval, whichever comes later. Failing to install or use metering equipment that a licence or approval condition, a direction under section 326 or the metering regulations require is a Tier 2 offence and a Tier C civil penalty contravention under section 91H(1).

In Natural Resources Access Regulator v Lidokew Pty Ltd [2023] NSWLEC 130, Duggan J considered a contested Class 5 prosecution (a criminal prosecution in the Land and Environment Court) under section 91I(2), in the form set out by the Court as at 30 June 2017. At [291], her Honour accepted that proper operation did not mean “perfection”. A meter could depart from perfection, but only where there was “no material under recording of the water taken by each metering device”. At [292], her Honour explained that “material” meant “something which is of consequence and not de minimis” (that is, more than trivial), having regard to the context and purpose of the meter’s function.

On the evidence, the Court was satisfied beyond reasonable doubt that the three meters were not operating properly: [298]–[305]. The decision concerned older meters, particular accepted error rates and specific evidence. It does not establish a universal percentage tolerance.

The 2025 amendments took effect on different dates and may reach earlier conduct

The Water Management Legislation Amendment (Stronger Enforcement and Penalties) Act 2025 (NSW) did not bring all of its amendments into force on the same day. Under section 2, most amendments commenced on assent, 24 November 2025 (the day the Act became law). The provisions identified in paragraph (b) of section 2, including the new civil penalty regime, commenced on 1 January 2026. One item has not commenced and will commence only on proclamation (a formal notice made by the Governor).

That item is Schedule 3[37] of the amending Act, which will insert section 88AB when it commences. It applies where an access licence carries a condition requiring the holder to attest periodically to the volume of water taken. The holder will not be able to refuse to give the attestation on the ground that it may incriminate them or expose them to a penalty. An individual’s attestation will not be admissible against them, except in proceedings under section 344 (false or misleading information), if they objected on that ground or were not warned that they could object. The fact that the attestation had to be given, or may incriminate the holder, will not by itself prevent further information obtained as a result of it from being used in evidence. As at 30 September 2026 the item had not commenced, and the proposed amendments to the Water Management (General) Regulation 2025 that would require larger licence holders to attest to their annual water take, exhibited from 18 May to 15 June 2026, had not been made.

The transitional provisions require separate attention:

• Schedule 9, clause 108 applies the specified offences and civil penalty provisions, as inserted or amended, to conduct before 24 November 2025 where proceedings had not commenced by that date.
• Schedule 9, clause 109 permits a section 91O charge for a contravention before 1 January 2026.
• Schedule 9, clause 116 applies Chapter 7, Part 6 to conduct before 1 January 2026 where proceedings had not commenced before that day.

The conduct date alone therefore does not determine the applicable regime. The provision, commencement item, proceeding date and any overlapping administrative or court action must be checked.

Respond to the power actually being used

Identify the power and deadline. Preserve original records and metadata. Map the licences, works, meters and people involved. Keep voluntary engagement distinct from compulsory compliance. Test technical evidence against the precise allegation, and obtain any extension or variation by the statutory process. Unless it is varied or stayed, continue to comply with a live direction.

The dedicated water and NRAR pathway can help identify the procedural route. It does not displace the notice, direction or decision that governs the matter. For how licences, approvals and compliance fit together, see water licensing and NRAR compliance and the firm’s approvals and licensing practice.