Questions and answers on amendments to the Pesticides Act 1999
For Pest management technicians and fumigators Q&A
For farmers Q&A
For aerial applicators Q&A
Pest management technicians and fumigators
How will the changes affect pest management technicians and fumigators?
The main change is that from 1 September 2015 all existing certificates of competency, applications for renewals and applications for new licences will be administered by the EPA.
The term ‘certificate of competency’ has been replaced by the more generally understood term ‘licence’. Existing SafeWork NSW (formerly WorkCover)-issued certificates of competency will continue to apply until their expiry date and will be renewed as an EPA-issued licence at that time. There is no need to apply to the EPA to convert your certificate of competency to a licence.
Relevant forms and contact details can be found on the pesticide licensing web page on the EPA website.
SafeWork NSW (formerly WorkCover) will continue to regulate the pest control industry on work health and safety matters – you can call them on 131 050.
Do the changes allow the EPA to licence farmer’s own pesticide use?
No. The amended Act specifically limits the licensing power to 'fee or reward' pesticide users – that is, pest control contractors and the like. The intention is to target the requirement for licensing to aerial applicators and persons who provide pest control services, such as pest management technicians and fumigators.
What about existing exemptions issued by SafeWork NSW?
SafeWork NSW has issued exemptions from the requirement to hold a certificate of competency for certain pesticide uses and users, including for on-farm use of fumigants. These exemptions continue to apply with the changeover.
Do any other changes affect farmers?
The changes are expected to benefit farmers. The targeted enhancements to the Pesticides Act regarding damage to crops from pesticide misuse will better protect the productive value of rural properties. A more effective legislative framework will support cleaner land, water and food production and maintain the trade reputation of NSW as a provider of clean produce. Progressive implementation of improved harmonisation with other states of licensing, training and record keeping requirements is also expected to benefit NSW farmers.
Why has the offence of ‘damage to property’ been changed?
Protection of property and trade from pesticide misuse are key objects of the Pesticides Act. It has always been an offence under the Act to damage another person’s property through pesticide misuse. Experience in administering the Act has however pointed to the need to clarify that ‘damage’ includes those situations where misuse of pesticides results in deposition on a non-target agricultural property that prevents its current productive use. For example, agricultural spray drift of 2,4-D herbicide may preclude safe grazing of livestock for up to ten days on some pastures, but previously this may not have been construed as damage.
Does this change affect civil cases on damage to crops caused by spray drift?
No changes have been made to the NSW Civil Liability Act 2002 which is most relevant to such civil jurisdiction matters.
The onus of proof in criminal prosecutions under the Pesticides Act is much greater than exists in civil jurisdiction matters. For an offence to have occurred, the need to prove beyond reasonable doubt that damage was a result of wilful or negligent pesticide misuse or of misuse through lack of due diligence will remain unchanged.
How do the changes affect aerial applicators?
No changes have been made to the regulatory obligations under the NSW Pesticides Act and Regulation applying to aerial applicators, even though some requirements have been moved from the Act to the Regulation.
There are three administrative changes:
- Consistent with other licensees, aerial applicator licences no longer have an indefinite duration but instead will need to be renewed after five years. All existing aerial licences will have a five year duration from the date when the legislative changes come into effect. Renewal reminders will be sent to those licence holders. Licence fees will be aligned with those that apply to pest management technicians and fumigators.
- Instead of the current process of publishing the details of newly issued licences in the NSW Government Gazette, basic details of all licences will be progressively placed on the public register to be established on the EPA website.
- There are new names for each aerial applicator licence and there are specific licences for unmanned aerial vehicles (drones) which have been approved to aerially apply pesticides.
Why is added protection for companion animals needed?
Previously if a contractor or a third party deliberately or negligently poisoned the occupier’s own companion animal on their own residential or farm premises, the exceptions to the harm offences in Part 2 Division 1 of the Act could preclude enforcement action being taken by the EPA. The new offence provision addresses this gap, providing better protection of valuable working dogs and companion animals on residential properties. It does not apply where the animal is on the premises without the consent of the occupier. The offence also does not apply when the pesticide user can prove they acted with due diligence.
What is an enforceable undertaking?
An enforceable undertaking is an agreement between the EPA and a person or corporation who has breached the Act, that provides an alternative to court action and financial penalties. An enforceable undertaking could be used, for example, to require someone who has caused off-target harm to plants through herbicide misuse to rehabilitate local vegetation. Enforceable undertakings are also available under other legislation administered by the EPA and have proven effective and equitable.
What are the other nationally agreed pesticide reforms?
Broadly, the national reforms cover harmonised licensing, minimum requirements for competency among occupational pesticide users, record keeping, acceptable variations from product label instructions and enhanced management of pesticide residues.
Implementation of these reforms is currently being refined in discussions between the Commonwealth, states and territories. NSW already has a well developed legislative framework in these areas. The only changes needed to the Pesticides Act to implement the national reforms were to amend its licensing power and make minor changes to notice and regulation making powers regarding residue management. Implementation of the rest of the national reforms will be achieved through future amendments to the NSW Pesticides Regulation and will be subject to thorough assessment and consultation.
The national reform framework was agreed through several rounds of public consultation and a COAG decision Regulation Impact Statement concluded that the reforms provide a positive net benefit. The scope of the national reforms is set out in Section 4 of the updated Intergovernmental Agreement on Agricultural and Veterinary Chemicals.
When do the changes come into effect?
The transfer of licensing and administrative changes came into effect on 1 September 2015. The amendments to the offence provisions of the Act commence from 1 December 2015 to give sufficient time for the EPA to communicate the changes.
Page last updated: 13 October 2016