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Snapshot

  • June 2025 amendments to the Water Management Act 2000 expanded statutory immunity from civil liability.
  • Immunity now extends to loss intentionally caused, provided the conduct is undertaken in ‘good faith’.
  • The changes expose a tension between intentional harm and the limits of good faith protections.

Citizens blame governments for many kinds of misfortune. … people who sue governments are seeking compensation from public funds. They are claiming against a body politic or other entity whose primary responsibilities are to the public (Graham Barclay Oysters Pty Ltd v Ryan, Ryan v Great Lakes Council, State of New South Wales v Ryan [2002] HCA 54 at [6] (Gleeson CJ)).

Crown immunity and ‘good faith’ protections

In NSW, the Crown Proceedings Act 1988 entitles the Crown to bring proceedings against any person and specifies that, in civil proceedings against the Crown, the ‘rights of the parties in the case shall as nearly as possible be the same… as in an ordinary case between subject and subject’ (Crown Proceedings Act 1988 (NSW) s 5). Nevertheless, there are limited circumstances where the Crown is granted immunity from civil liability. There are practical reasons for this immunity, reflecting the unique role and duties of government. The Crown must decide matters of policy, prioritise finite resources and act in the face of competing interests. Consequently, statutory protections limiting the liability of public authorities exist where necessary to enable government to exercise those functions.

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