Agricultural and Veterinary Chemicals (Control of Use) Act 1995 (Tas)

Agricultural and Veterinary Chemicals (Control of Use) Act 1995 An Act to control the use and application of agricultural chemical products and veterinary chemical products, to provide for related matters and to repeal certain Acts [Royal Assent 8 December 1995] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Agricultural and Veterinary Chemicals (Control of Use) Act 1995 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation (1) In this Act, unless the contrary intention appears – Advisory Committee means the Tasmanian Agricultural and Veterinary Chemicals Advisory Committee established under section 14 ; aerial spraying means the spraying, spreading or dispersing of an agricultural chemical product from an aircraft in flight; agricultural produce means any animal product or – (a) any carcass, or part of a carcass, of an animal; or (b) any plant or part of a plant, whether harvested or not; or (c) any commodity obtained from a plant or an animal; or (d) anything that is ordinarily used as, or manufactured into, food for humans or animals – and includes any other commodity that is obtained from a plant or an animal and that is declared under subsection (3) to be agricultural produce; agricultural spraying means the spraying, spreading or dispersing of an agricultural chemical product whether by hand or from any machine or piece of equipment, and includes aerial spraying; aircraft means any machine, other than a hovercraft, that can derive support in the atmosphere from the reaction of the air but does not include a machine operated by remote control; analyst means an analyst appointed and holding office under section 51 ; animal product means – (a) the hide, skin, hair, wool, feather, shell, horn, fin or hoof of an animal; or (b) any part of the viscera of an animal; or (c) any bone or blood of an animal or any article or substance derived from the bone or blood of an animal; or (d) any article or substance derived from an animal whether or not in combination with any other article or substance; approved insurance policy means a policy that is approved or belongs to a class of policy that is approved under section 36 ; Chief Veterinary Officer means the person holding office as Chief Veterinary Officer under the Biosecurity Act 2019 ; Code means the Agvet Code of Tasmania, within the meaning of the Agricultural and Veterinary Chemicals (Tasmania) Act 1994 ; contaminant, in relation to stock or agricultural produce, means any residue of a chemical or chemical product in excess of the maximum residue limit or a metal in excess of the maximum permitted concentration or, if no such limit or concentration is declared, in excess of the level which may reasonably be expected to be detected in the stock or agricultural produce if not subjected to any specific source of the chemical or chemical product and includes a radioactive product; contaminated – (a) in relation to stock or agricultural produce, means stock or agricultural produce in or on which a contaminant is present; or (b) in relation to a preparation or fitting, means a preparation or fitting which if used in the normal manner would cause or be likely to cause the presence of a contaminant in stock or agricultural produce; contaminated produce notice means a notice issued and in force under section 42 ; contaminated stock notice means a notice issued and in force under section 41 ; Council means the Agricultural, Silvicultural and Veterinary Chemicals Council established under section 9 ; deal with, in relation to a chemical product, includes store or dispose of the product; Deputy Registrar means the Deputy Registrar of Chemical Products appointed under section 17 ; destruction notice means a notice issued and in force under section 45 ; fitting means any equipment or other thing used in the handling or keeping of stock; inspector means a person appointed as an inspector under section 47 ; maximum permitted concentration, in relation to a substance present in stock or agricultural produce, means the concentration that is set out in any code, standard, rule, specification or guideline adopted or incorporated by regulations made under the Food Act 2003 or declared under subsection (5) to be the maximum permitted concentration for that substance in relation to that stock or agricultural produce; maximum residue limit, in relation to a substance present in stock or agricultural produce, means the level that is set out in any code, standard, rule, specification or guideline adopted or incorporated by regulations made under the Food Act 2003 or declared under subsection (5) to be the maximum residue limit for that substance in relation to that stock or agricultural produce; operator, in relation to an aircraft, means – (a) if the aircraft is subject to a hire-purchase agreement or a lease, the person in possession of the aircraft; or (b) if the aircraft is borrowed for use (whether or not under a financial arrangement), the person borrowing the aircraft; or (c) in any other case, the owner of the aircraft; premises use restriction notice means a notice issued under section 43 ; preparation means any substance or mixture which, if it contained a chemical or chemical product, would cause or be likely to cause the presence of a contaminant in or on stock or agricultural produce; Registrar means the Registrar of Chemical Products appointed under section 17 ; Secretary means the Secretary of the Department; stock means any animal of a food-producing species or any animal of which any part is used as, or which produces any product that is ordinarily used as, or manufactured into, fibre and any other animal declared under subsection (3) to be stock; veterinary chemical product has the same meaning as in the Code except that, despite section 5 (4) of the Code, it includes – (a) a substance or mixture that is – (i) prepared by a pharmacist in accordance with the instructions of a veterinary surgeon; or (ii) prepared by a veterinary surgeon – in the course of the practice, by the person preparing the substance or mixture of substances, of his or her profession; and (b) a substance declared under subsection (3) to be a veterinary chemical product – but does not include a substance that is declared under subsection (4) not to be a veterinary chemical product; veterinary surgeon means a veterinary surgeon registered under the Veterinary Surgeons Act 1987 . (2) Unless the contrary intention appears, a word or expression used in the Code has the same meaning in this Act as it has in the Code. (3) The Minister, by notice in the Gazette, may declare – (a) a commodity, or a class of commodity, that is obtained from a plant or an animal to be agricultural produce; or (b) an animal to be stock; or (c) a substance to be a veterinary chemical product; or (d) a substance not to be a veterinary chemical product. (4) The Minister, by notice in the Gazette, may declare a product or substance, or a class of product or substance, which is not required to be registered under the Code to be a product or substance which is subject to this Act or such of the provisions of this Act as are specified in the order. (5) The Minister, by notice in the Gazette, may declare concentrations or limits in relation to a prescribed substance present in stock or agricultural produce to be the maximum permitted concentration or the maximum residue limit for that substance in relation to that stock or agricultural produce. (6) For the purposes of subsection (5) , prescribed substance, in relation to stock or agricultural produce, means – (a) a substance in respect of which the maximum permitted concentration or the maximum residue limit in relation to that stock or agricultural produce has not been set out in any code, standard, rule, specification or guideline adopted or incorporated by regulations made under the Food Act 2003 ; or (b) a substance declared under subsection (4) . 4. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. 5. Objectives to be furthered It is the obligation of any person on whom a function is imposed or a power is conferred under this Act to perform the function or to exercise the power in such a manner as to further the objectives set out in Schedule 1 . 6. Saving of other laws This Act does not affect in any way the operation of any other law unless the contrary intention appears or unless that law is not capable of operating concurrently with this Act. 7. Exemptions (1) If the Minister considers it is in the public interest to do so, and after consultation with the NRA, the Minister, by order, may exempt any person, product, equipment or method of application or any class of person, product, equipment or method of application from any of the provisions of this Act either unconditionally or in specified circumstances. (2) Before making an order under subsection (1) , the Minister must consult with the Minister administering the Food Act 2003 and the Minister administering the Environmental Management and Pollution Control Act 1994 . 8. Labels attached to containers (1) For the purposes of this Act, a label is attached to a container if the label is securely attached or affixed to, appears on, or is included with, the container. (2) For the purposes of this Act but without limiting the generality of subsection (1) – (a) writing appearing on a container is taken to have been written on a label attached to the container; and (b) a reference to a label attached to a container includes a reference to writing appearing on the container; and (c) a reference to attaching a label to a container includes a reference to putting writing on the container. PART 2 - Administration Division 1 - The Agricultural, Silvicultural and Veterinary Chemicals Council 9. Establishment of Agricultural, Silvicultural and Veterinary Chemicals Council The Agricultural, Silvicultural and Veterinary Chemicals Council is established. 10. Constitution of Council (1) The Council consists of – (a) the Secretary or a person nominated by the Secretary and approved by the Minister who is the chairperson of the Council; and (b) the Secretary of the responsible Department in relation to the Environmental Management and Pollution Control Act 1994 or a person nominated by the Secretary of that Department and approved by the Minister administering that Act; and (c) the Secretary of the responsible Department in relation to the Food Act 2003 or a person nominated by the Secretary of that Department and approved by the Minister administering that Act. (2) Schedule 2 has effect with respect to meetings of the Council. 11. Functions of Council The functions of the Council are as follows: (a) to advise the Minister, the Minister administering the Food Act 2003 and the Minister administering the Environmental Management and Pollution Control Act 1994 on matters relating to chemical products and their use; (b) to recommend to the Minister the making of orders and regulations under this Act; (c) to develop or approve codes of practice in relation to the handling of chemical products and the monitoring of residues in water supplies, food and fibre; (d) to monitor guidelines adopted for the use of chemical products nationally and internationally; (e) to examine standards of residues and develop guidelines to ensure best practice in the handling of chemical products; (f) to examine problems of the use of chemical products in farming and forestry and identify priority areas for action to minimise the presence of chemical products and residues; (g) to commission research on economic methods to minimise the use of chemical products; (h) to perform such other functions as are imposed on it by this or any other Act. 12. Powers of Council (1) The Council may do all things necessary or convenient to be done for or in connection with, or incidental to, the performance of its functions. (2) Subject to subsection (3) , the Council may direct the Registrar to suspend or cancel any permit issued by the Registrar. (3) The Council may not exercise its power under subsection (2) in relation to a permit which has been issued by the Registrar in accordance with an agreement with the NRA. 13. Reports, &c. (1) The Council is to give to the Minister such information and reports relating to its functions and powers as the Minister requires or as it considers appropriate. (2) If the Minister receives any information or report from the Council, the Minister is to give a copy of the information or report to the Minister administering the Food Act 2003 and the Minister administering the Environmental Management and Pollution Control Act 1994 . Division 2 - The Tasmanian Agricultural and Veterinary Chemicals Advisory Committee 14. Establishment of Tasmanian Agricultural and Veterinary Chemicals Advisory Committee The Tasmanian Agricultural and Veterinary Chemicals Advisory Committee is established. 15. Constitution of Advisory Committee (1) The Advisory Committee consists of – (a) the Registrar, who is the chairperson of the Advisory Committee; and (b) a person employed in the Department who possesses experience in the assessment or regulation of chemical products nominated by the Secretary; and (c) the Chief Veterinary Officer; and (d) a medical practitioner, or a pharmacist, employed in the responsible Department in relation to the Food Act 2003 nominated by the Minister administering that Act; and (e) a person experienced in assessing the use and effects of chemicals nominated by the Minister administering the Environmental Management and Pollution Control Act 1994 ; and (f) a person nominated by the Tasmanian Farmers and Graziers Association to represent the users of chemical products; and (g) a person to represent the interests of consumers; and (h) a person to represent the interests of commercial operators conducting business in the application of chemical products; and (i) a veterinary surgeon nominated by the Australian Veterinary Association (Tasmanian Division). (2) The members of the Advisory Committee, other than the chairperson and the member referred to in subsection (1) (c) , are to be appointed by the Minister. (3) Schedule 3 has effect with respect to the membership of the Advisory Committee. (4) Schedule 4 has effect with respect to the meetings of the Advisory Committee. 16. Functions and powers of Advisory Committee (1) The functions of the Advisory Committee are as follows: (a) to advise the Registrar on all matters relating to permits referred to it by the Registrar; (b) to recommend to the Council policies and guidelines relating to the use of chemical products; (c) to advise the Council on any matter relating to chemicals and chemical products referred to it by the Council or considered by the Advisory Committee to be relevant. (2) The Advisory Committee may do all things necessary or convenient to be done for or in connection with, or incidental to, the performance of its functions. (3) If the Advisory Committee is of the opinion that any matter relating to its functions should be referred to the Minister, the Advisory Committee may refer the matter to the Minister and is to inform the Council of its opinion and make such representations and recommendations in relation to that matter to the Council as it considers appropriate. Division 3 - The Registrar 17. Registrar (1) The Secretary, by instrument in writing, must appoint a person employed in the Department to be the Registrar of Chemical Products and a person employed in the Department to be the Deputy Registrar of Chemical Products. (2) A person appointed as the Registrar of Chemical Products or the Deputy Registrar of Chemical Products holds that office in conjunction with State Service employment. (3) The Deputy Registrar may, subject to any direction given by the Registrar, perform or exercise any of the functions or powers imposed or conferred on the Registrar under this Act and any act or thing done by the Deputy Registrar in the performance or exercise of those functions or powers has the same force and effect as if it had been done by the Registrar. (4) In performing or exercising any of his or her functions or powers under this Act, the Registrar is to give consideration to any policies or guidelines established by the Council or the NRA and must act in accordance with any direction given to the Registrar by the Council. (5) The Registrar is to advise the Council of any decisions made by the Registrar or Deputy Registrar under this Act. (6) The Registrar is to advise the NRA of any permits issued under this Act. PART 3 - Restrictions and Prohibitions on Use of, or Dealing With, Chemical Products 18. Offences involving use, &c., of chemical products (1) A person must not use or deal with a chemical product unless – (a) it is registered under the Code and it is used or dealt with in accordance with a label approved under the Code in relation to that chemical product; or (b) it is used or dealt with in accordance with a permit granted and in force under this Act or a permit issued and in force under the Code; or (c) all the following subparagraphs apply: (i) the chemical product was registered under the Code at the time it came into the person's possession; (ii) the period beginning on the day when the chemical product ceased to be so registered and ending on the day when it was used is not longer than a period that the Registrar, after consultation with the NRA, has determined in relation to the chemical product for the purposes of this subparagraph; (iii) the chemical product was acquired for use and not for supply; (iv) a recall notice has not been issued by the NRA in respect of the chemical product; (v) an order has not been made under this Act prohibiting the chemical product's use; or (d) it is a veterinary chemical product prepared by – (i) a veterinary surgeon; or (ii) a registered pharmaceutical chemist acting in accordance with the instructions of a veterinary surgeon – and is handled in accordance with an advice notice or label in the prescribed form. Penalty: Fine not exceeding 200 penalty units. (1A) If a chemical product is registered under the Code and is used – (a) at a lower concentration than is advised on a label referred to in subsection (1)(a) ; or (b) at a lower rate of application than is advised on that label; or (c) at a lower frequency than is advised on that label; or (d) on a crop identified on that label to treat a pest or disease that is not so identified – that use of the chemical product is taken to comply with subsection (1)(a) . (2) A person must not at any time (in this section referred to as "the relevant time") have in the person's possession or custody for the purpose of use a chemical product unless – (a) it is registered under the Code; or (b) the container containing the chemical product has attached to it a label identical to a label approved under the Code in relation to that chemical product; or (c) all the following subparagraphs apply: (i) the chemical product was registered under the Code at the time it came into the person's possession; (ii) the chemical product was acquired for use and not for supply; (iii) a recall notice has not been issued by the NRA in respect of the chemical product; (iv) the period beginning on the day when the chemical product ceased to be so registered and ending at the relevant time is not longer than a period that the Registrar, after consultation with the NRA, has determined in relation to the chemical product for the purpose of this subparagraph. Penalty: Fine not exceeding 200 penalty units. (3) A person is not guilty of an offence under subsection (2) in relation to a chemical product the registration of which has been suspended under the Code. 19. Permit A permit may be applied for, granted or refused only in accordance with Schedule 5 . 20. Orders prohibiting or regulating handling, &c. (1) A person must not handle, use, prescribe or otherwise deal with any chemical product in contravention of an order made by the Minister that prohibits or regulates the handling of a chemical product or class of chemical product that– (a) is specified in the order; or (b) contains a constituent that is, or is part of a class that is, specified in the order; or (c) contains a constituent other than in the proportion specified in the order in relation to a class of constituents of which that constituent is a part. Penalty: In the case of– (a) a corporation, a fine not exceeding 400 penalty units; or (b) any other person, a fine not exceeding 200 penalty units. (2) The Minister, by order, may – (a) prohibit or regulate the handling of a chemical product by reference to any conditions or circumstances specified in the order; or (b) prohibit the handling of a chemical product except as permitted by a permit granted and in force under this Act; or (c) prohibit or regulate the use of a chemical product – (i) for all purposes; or (ii) for any purpose specified in the order; or (iii) for any purpose other than a purpose specified in the order; or (d) prohibit or regulate the mixing together of chemical products; or (e) prohibit or regulate the mixing of chemical products with any other substance; or (f) prohibit or regulate the sale, supply or prescription of a veterinary chemical product by a veterinary surgeon; or (g) prohibit or regulate the sale or supply of chemical products otherwise than in the normal course of sale by retail or by wholesale. (3) Before making an order under subsection (2) , the Minister must consult with the Minister administering the Food Act 2003 and the Minister administering the Environmental Management and Pollution Control Act 1994 . 21. Offence of commercial use without a licence A person must not offer a service for fee or reward which involves – (a) the use of a prescribed chemical product; or (b) the use of chemical products of a class that is prescribed; or (c) the use of a chemical product in a prescribed manner – unless that person holds a commercial operator licence granted and in force under this Act and complies with any conditions of that licence. Penalty: Fine not exceeding 200 penalty units. 22. Commercial operator licence A commercial operator licence may be applied for, granted or refused only in accordance with Schedule 5 . 23. Offence of use, &c., of restricted chemical product without a restricted chemical product permit (1) A person must not use a restricted chemical product unless that person holds a restricted chemical product permit granted and in force under this Act. Penalty: Fine not exceeding 100 penalty units. (2) A person must not at any time have in the person's possession or custody for the purpose of use a restricted chemical product unless the person holds a restricted chemical product permit granted and in force under this Act. Penalty: Fine not exceeding 100 penalty units. 24. Restricted chemical product permit A restricted chemical product permit may be applied for, granted or refused only in accordance with Schedule 5 . 25. Offence of altering, &c., storage instructions A person must not transfer a chemical product from the container in which it is supplied in accordance with the Code into another container except – (a) where it is to be used immediately; or (b) where the other container has a label attached to it bearing relevant matter identical to that on the container in which it was supplied. Penalty: Fine not exceeding 20 penalty units. 26. Regulations with respect to use, &c., of certain chemical products (1) Regulations under this Act may, in relation to any chemical product or class of chemical product, make provision – (a) for regulating the preparation for use and handling of the chemical product or class of chemical product; and (b) for the protection of persons from injury or illness, or the risk of injury or illness, arising from the handling, use or misuse of the chemical product or class of chemical product; and (c) for prohibiting or restricting the classes of animals or plants to which the chemical product or class of chemical product may be applied. (2) Without prejudice to the generality of subsection (1) , the regulations referred to in that subsection may, in relation to any chemical product or class of chemical product, make provision – (a) imposing requirements with respect to the buildings and other premises in which the chemical product or class of chemical product is prepared for use or handled, the vehicles or vessels in which it is conveyed and the conditions in which it is prepared for use or handled; and (b) relating to the materials to be used in the construction of facilities used to store the chemical product or class of chemical product, the security of those facilities and the services and equipment to be used in the case of accidents or emergencies at those facilities; and (c) prohibiting the use of the chemical product or class of chemical product for specified purposes or in specified cases or circumstances or classes of cases or circumstances and imposing restrictions or conditions as to the purposes for which, the circumstances in which, or the methods or means by which, the chemical product or class of chemical product may be used; and (d) imposing conditions in relation to the identification, marking, movement, supply, disposal or otherwise dealing with stock or agricultural produce to which the chemical product or class of chemical product has been applied or to stock or agricultural produce to which the chemical product or class of chemical product has not been applied and imposing conditions in relation to the methods or means used in that identification, marking, movement, supply, disposal or other dealing; and (e) providing for the grant of certificates of competency in relation to the handling or use of the chemical product or class of chemical product and prohibiting that handling or use or any work or operation in connection with that handling or use except by or under the supervision of a person holding such a certificate; and (f) requiring the provision and keeping in good order, and requiring and regulating the use of protective clothing and equipment, of facilities for washing and cleaning, and of other things needed for protecting persons from the effects of the chemical product or class of chemical product or the residues of the chemical product or class of chemical product, or for removing sources of the chemical product or class of chemical product; and (g) requiring the provision and keeping available in good order, and requiring and regulating the use, of facilities for preventive and first aid treatment to persons at risk of suffering, or suffering, any illness or injury from the handling or use of the chemical product or class of chemical product; and (h) requiring the taking of measures for ascertaining the state of the health or physical condition of persons engaging, or proposing to engage, in the handling or use of the chemical product or class of chemical product and for detecting and investigating cases in which illness or injury has occurred, or is suspected to have occurred, to any such persons, including the undergoing of medical examinations, and the taking of blood and other tests and the giving of notifications of illness, injuries and absences from work; and (i) limiting or restricting the periods during which a person may be engaged in any operation or work for or in connection with the handling or use of the chemical product or class of chemical product and imposing prohibitions or restrictions on a person engaging in any such operation or work by reason of the person's age, state of health, bodily condition or other circumstances; and (j) requiring, regulating or prohibiting the carrying out of specified operations on premises on which the chemical product or class of chemical product has been used; and (k) prohibiting the entry, for such period as is specified in the regulations, on premises in which the chemical product or class of chemical product has been used; and (l) requiring the keeping of records, the giving of notifications and the furnishing of records and returns, relating to the handling or use of the chemical product or class of chemical product; and (m) relating to the making of declarations stating that the chemical product or class of chemical product has not been used in the production of agricultural produce or raising of stock. (3) The regulations made for the purposes of subsections (1) and (2) may – (a) impose obligations on persons employing persons in any work or operation in the conveyance or use of, or otherwise dealing with, a chemical product or class of chemical product, on persons so employed and on other persons; and (b) impose duties and confer powers on inspectors, analysts, classes of State Service officers and State Service employees specified in the regulations and classes of employees of councils, within the meaning of the Local Government Act 1993 , specified in the regulations. (4) Regulations under this Act may make provision for or with respect to the registration of sellers of restricted chemical products and other prescribed chemical products, prescribed preparations and prescribed fittings and the areas in which those chemical products, preparations or fittings are stored. PART 4 - Controls Over Use of Agricultural Chemical Products 27. Orders controlling or prohibiting agricultural spraying or use of chemical products (1) The Minister, by order, may control or prohibit agricultural spraying for the purpose of protecting susceptible plants and stock, public health, the environment an