Pesticides Act

The Pesticides Act 1999 controls the use of pesticides in NSW. It aims to

• reduce risks to human health, the environment, property, industry and trade
• promote collaborative and integrated policies for pesticide use

Under the Act, all pesticide users in NSW must

• only use pesticides registered or permitted by the Australian Pesticides and Veterinary Medicines Authority (APVMA)
• obtain an APVMA permit if they wish to use a pesticide in a way not covered by the label
• read the approved label and/or APVMA permit for the pesticide product (or have the label/permit read to them) and strictly follow their directions
• only keep registered pesticides in containers bearing an approved label
• prevent injury to people, damage to property and harm to non-target plants and animals from using a pesticide

The Act also provides for

• offences and penalties
• clean-up notices, orders and other ways of dealing with breaches of the Act
• regulations to be made covering any matter that enforces the legislation; see Pesticides Regulation 2017.

Under Part 2, Division 2 of the Pesticides Act, it is an offence to use a pesticide in a way that:

• injures or is likely to injure another person
• damages or is likely to damage another person's property
• harms a plant or animal other than the target pest
• harms a companion animal

The maximum penalties for these offences are:

• $60,000 for an individual
• $120,000 for a corporation

Major offences

Under Part 2, Division 1 of the Pesticides Act, you will face higher penalties if you wilfully or negligently use a pesticide in a way that:

• injures or is likely to injure another person
• damages or is likely to damage another person’s property
• harms a plant or animal other than the target pest
• materially harms a threatened or protected animal species

The maximum penalties for these offences are:

• $500,000 for an individual
• $2 million for a corporation

The EPA Prosecution Guidelines set out the EPA's policy on bringing and conducting prosecutions.

See Pesticide use in NSW and Working with pesticides for information about the correct use of pesticides.

Defences and exceptions

• An “on-farm” exception applies where the injury, harm or damage occurred, or is likely to occur, only on the farm where the pesticide was used, and the pesticide is applied by the occupier of the land or someone employed or engaged by the occupier. Other laws may apply to these situations, such as the Work Health and Safety Act 2011 and the Biodiversity Conservation Act 2016.  
• A residential premises exception applies where injury, damage or harm occurs only on the residential premises where the pesticide was used and the pesticide is applied by the occupier of the land or premises or someone employed or engaged by the occupier.
• A due diligence defence applies when a person can prove they had no control over factors causing the injury, damage or harm and that they took all reasonable precautions and actions to prevent the offence from being committed.

Which defences and exceptions apply

• The on-farm exception and due diligence defence are available if a person has injured a person or harmed property under Part 2, Division 2 of the Pesticides Act.
• The on-farm exception, residential premises exception and due diligence defence are available if a person has harmed a plant or animal under Part 2, Division 2 of the Pesticides Act.
• The due diligence defence is available if a person has harmed a companion animal under Part 2, Division 2 of the Pesticides Act.
• The on-farm exception is available if a person has wilfully or negligently misused a pesticide and harmed a person or damaged property under Part 2, Division 1 of the Pesticides Act.
• The on-farm exception and residential premises exception are available if a person has wilfully or negligently harmed a plant or animal under Part 2, Division 1 of the Pesticides Act.

No exception or defence applies is a person has wilfully or negligently harmed a threatened species or protected animal under Part 2, Division 1 of the Pesticides Act.

Penalty infringement notices

The EPA may issue a penalty infringement notice (PIN) for some offences, rather than commence prosecution. PIN penalties are much lower than prosecution penalties.

The EPA uses PINs in matters where the essential facts of the offence are not in dispute.

If you are issued with a PIN and pay the penalty within the set period, the matter is finished and no criminal conviction is recorded. If further evidence comes to light that indicates the PIN was wrongly issued, EPA can withdraw the PIN and your payment will be refunded.

Paying the PIN is not regarded as an admission of liability if there is any civil litigation arising from the incident.

Clean-up notices

If the EPA suspects that you are causing pesticide pollution, you will be issued with a clean-up notice. This notice will direct you to act to reduce ongoing harm or risk of harm to health, property, the environment, or trade.

For example, where a pest controller has treated a home for cockroaches and leaves pesticide dust covering the kitchen benchtops, cooking appliances and utensils, the EPA can direct them to clean up the pesticide so the house is fit for residents to occupy.

Prevention notices

The EPA can issue a prevention notice to a pesticide user where it reasonably suspects that

• there is a breach of the Act
• a breach of the Act is likely to occur
• a particular case of pesticide use is likely to pose a threat to human health, property or the environment

For example, the EPA could issue a prevention notice to restrict pesticide spraying where persistent poor spraying practices have not been corrected after advice and warnings.

A link between the harm or likely harm and the use of the pesticide must be established to issue a prevention notice.

Orders

The EPA, with the consent of the Minister for the Environment, can make orders relating to how pesticides may be applied. These orders may apply to both aerial and ground applications of pesticides.

EPA-authorised officers investigate possible breaches of the Pesticides Act and Regulation. They

• have powers to obtain information and evidence in the course of an investigation
• prevent, control, abate or mitigate any harm to the environment caused by an alleged offence, or prevent the alleged offence from continuing
• may interview people and enter property to inspect and seize pesticides
• can advise pesticide users of their legal responsibilities and other pesticide issues

It is an offence for a person to obstruct an EPA officer in who is carrying out these duties.

All EPA-authorised officers carry an authorisation card with photo identification which anyone can ask to see.

Enforceable undertakings

The EPA can deal with breaches of the Act through

• prosecution
• on-the-spot fines
• warning letters
• enforceable undertakings

Enforceable undertakings allow the offender to voluntarily enter into a binding agreement with the EPA to undertake tasks to rectify the problems causes by the breach. These undertakings are enforced by the Land and Environment Court.

When choosing between legal proceedings or an administrative solution, the EPA will choose the approach which seems likely to produce the best results, in terms of

• lasting compliance with the law
• redress for environmental harm
• obtaining a good and lasting benefit for the environment

Codes of practice

Codes of practice guide pesticide users in ensuring they minimise risks to others. These codes can be developed jointly by government, industry and other stakeholders. The Act allows for codes to be formally recognised under the legislation.

While compliance with adopted codes is not mandatory, codes can be a point of reference for the EPA when deciding whether to prosecute. The court can also take into account compliance with codes when considering whether the user was negligent, and in setting penalties.