New South Wales: Pesticides Act 1999 (NSW)

Pesticides Act 1999 No 80 An Act to regulate and control the use of pesticides; to repeal the Pesticides Act 1978; to amend certain other Acts; and for other purposes. Part 1 Preliminary Note— The Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 of the Commonwealth (the Agvet Code) is the basis of a uniform legislative scheme for the approval and registration of agricultural chemical products (eg pesticides) and veterinary chemical products. Section 5 of the Agricultural and Veterinary Chemicals (New South Wales) Act 1994 provides that the Agvet Code applies as law of New South Wales. The Agvet Code controls the manufacture and supply (eg sale) of agricultural and veterinary chemical products. The control of the use of those chemical products (described in this Act as "pesticides") is generally a matter for the States. This Act provides the basis for the control of the use of pesticides in New South Wales. This Act should be read in conjunction with the Agvet Code (particularly the definitions in that Code). 1 Name of Act This Act is the Pesticides Act 1999. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of this Act The objects of this Act are as follows— (a) to promote the protection of human health, the environment, property and trade in relation to the use of pesticides, having regard to the principles of ecologically sustainable development within the meaning of the Protection of the Environment Administration Act 1991, (b) to minimise risks to human health, the environment, property and trade, (c) to promote collaborative and integrated policies in relation to the use of pesticides, (d) to establish a legislative framework to regulate the use of pesticides. 4 Definitions (1) In this Act— agricultural farm land includes a timber plantation. aerial spraying equipment means equipment attached to, or forming part of, an aircraft, being equipment that is manufactured, adapted or used for the purpose of facilitating the use of pesticides from the aircraft. Agvet Code means the provisions applying because of section 5 of the Agricultural and Veterinary Chemicals (New South Wales) Act 1994. animal has the same meaning as in the Agvet Code. Note— The definition in the Agvet Code is as follows— "animal" means any animal (other than a human being), whether vertebrate or not, and whether a food-producing species or not, and includes— (a) mammals, birds, bees, reptiles, amphibians, fish, crustaceans and molluscs, and (b) the semen, ova or embryo of an animal (other than a human being) or any other substance or thing directly relevant to the reproduction of an animal (other than a human being), and (c) any other prescribed form of animal life, whether prescribed by reference to a species or in any other way. approved label, in relation to a pesticide, means any label approved under Part 2 of the Agvet Code for or in respect of the pesticide. Note— The term "label" in the Agvet Code includes tag, leaflet, brand, stamp, mark, stencil or written statement. authorised officer means a person appointed by the Environment Protection Authority under Part 7.2 of the Protection of the Environment Operations Act 1997 as an authorised officer for the purposes of this Act. Chairperson of the EPA Board means the Chairperson within the meaning of the Protection of the Environment Administration Act 1991. container has the same meaning as in the Agvet Code. Note— The definition in the Agvet Code is as follows— container includes anything by which or in which a chemical product is, or is to be, covered, enclosed, contained or packaged, but does not include a container (such as a shipping container) in which other containers of chemical products are, or are to be, placed for the purpose of being transported. environment means components of the earth, including— (a) land, air and water, and (b) any layer of the atmosphere, and (c) any organic or inorganic matter and any living organism, and (d) human-made or modified structures and areas, and includes interacting natural ecosystems that include components referred to in paragraphs (a)–(c). Environment Protection Authority (or Authority) means the Environment Protection Authority constituted under the Protection of the Environment Administration Act 1991. exercise a function includes perform a duty. function includes a power, authority or duty. harm an animal or plant includes poison, injure, contaminate, infect, distress, maim, impair or kill the animal or plant. injury to a person includes any kind of physical or psychological injury whether temporary or permanent, including conditions such as nausea, allergic reaction, dizziness, headache, stress, and running nose or eyes. instruction has the same meaning as in the Agvet Code. Note— The definition in the Agvet Code is as follows— "instruction" includes direction, caution, warning or recommendation. licence means a licence in force under this Act. monetary benefits means monetary, financial or economic benefits. non-target animal, in relation to the use of a pesticide, means any animal that is not specified on an approved label or permit for the pesticide as being an animal in respect of which the pesticide may be used. non-target plant, in relation to the use of a pesticide, means any plant that is not specified on the approved label or permit for the pesticide as being a plant in respect of which the pesticide may be used. occupier of premises means the person who has the management or control of the premises. permit means a permit under Part 7 of the Agvet Code, and includes a permit that is taken to have been issued by operation of section 45B or 47D of the Code. Note— Sections 45B and 47D of the Agvet Code provide for certain persons to be taken to hold a permit for a transitional period when a notice of suspension or cancellation of a permit has been given, or when a notice of the end of the registration of a chemical product is published. pest has the same meaning as in the Agvet Code. Note— The definition in the Agvet Code is as follows— "pest" means— (a) in relation to an animal plant or thing—any animal, plant or other biological entity that injuriously affects the physical condition, worth or utility of the first-mentioned animal or plant or of that thing, or (b) in relation to a place—any animal, plant or other biological entity that injuriously affects the use or enjoyment of that place. pesticide—see section 5. pesticide control order means an order made under Part 4. pesticide pollution means any harm or risk of harm to any person, property, the environment or trade that is caused by the use of a pesticide. plant has the same meaning as in the Agvet Code. Note— The definition in the Agvet Code is as follows— "plant" means any vegetation or fungus and includes a seed or cutting of a plant, or any other part or product of a plant. possession of a pesticide or other thing includes any case in which a person— (a) has custody or control of the pesticide or thing, or (b) has the pesticide or thing in the custody of another person, or (c) has the pesticide or thing in or on any premises, whether or not belonging to or occupied by the person. premises includes— (a) a building or structure, or (b) land or a place (whether enclosed or built on or not), or (c) a vehicle, vessel or aircraft. prescribed pesticide work—see section 5A. property (except in Part 10) includes— (a) any premises, or (b) livestock, or (c) agricultural crops or other produce. public authority means a public or local authority constituted by or under an Act, and includes— (a) a Public Service agency, or (b) a statutory body representing the Crown, a State owned corporation or a local council, or (c) a member of staff or other person who exercises functions on behalf of a public authority. registered pesticide means a pesticide that is registered under Part 2 of the Agvet Code. related body corporate has the same meaning as in the Corporations Act 2001 of the Commonwealth. related entity has the same meaning as in the Corporations Act 2001 of the Commonwealth. relevant legislation means— (a) this Act and the regulations, and (b) the Agvet Code and the regulations applying because of section 6 of the Agricultural and Veterinary Chemicals (New South Wales) Act 1994, and (c) legislation of any other Australian jurisdiction relating to the use of pesticides, and (d) legislation (including legislation that has been repealed or legislation of another jurisdiction) prescribed by the regulations. reserved chemical product has the same meaning as in the Agvet Code. Note— The term reserved chemical product is defined in the Agvet Code to mean a chemical product that is, or is included in a class of chemical products that is, specified in the Reserved Schedule. A reserved chemical product is not required to be registered, but its possession, custody or use is subject to conditions specified by the Reserved Schedule. Reserved Schedule has the same meaning as in the Agvet Code. Note— The term Reserved Schedule is defined in the Agvet Code to mean the schedule contained in the regulations under section 56ZU of the Code. restricted pesticide means a pesticide that is a restricted chemical product within the meaning of the Agvet Code. Note— The term "restricted chemical product" is defined in the Agvet Code as a chemical product declared by regulations made for the purposes of section 93 of the Code to be a restricted chemical product. restricted pesticide authorisation means a restricted pesticide authorisation in force under this Act. substance has the same meaning as in the Agvet Code. Note— The definition in the Agvet Code is as follows— substance includes— (a) any gas, liquid, mixture or compound of gases, or mixture or compound of liquids, and (b) an organism or part of an organism, including a genetically manipulated organism or part of a genetically manipulated organism, and (c) material that is produced from an organism, and (d) matter whose production involves the use of an organism, but does not include an excluded organism or part of an excluded organism, or material that is produced from, or matter whose production involves the use of, an excluded organism. unregistered pesticide means a pesticide that is not registered under Part 2 of the Agvet Code, and includes a pesticide the registration or approval of which has been suspended or cancelled under Part 2 of the Code. use a pesticide includes— (a) apply, spray, spread or disperse the pesticide by any means (for example by hand or by the use of a machine or any type of equipment including aerial spraying equipment), or (b) store the pesticide, or (c) prepare the pesticide for use. (2) Without limiting subsection (1), a word or expression used in the Agvet Code that is used in this Act has the same meaning in this Act as it has in that Code. (3) Notes included in this Act do not form part of this Act. 5 Definition of "pesticide" (1) In this Act, pesticide means— (a) an agricultural chemical product (within the meaning of the Agvet Code), or (b) a veterinary chemical product (within the meaning of the Agvet Code) that— (i) is represented as being suitable for, or is manufactured, supplied or used for, the external control of ectoparasites of animals, and (ii) is concentrated and requires dilution or mixing in water before use, and (iii) is not prescribed under the Stock Medicines Act 1989 as a low-risk veterinary chemical product. Note— The Agvet Code defines an agricultural chemical product to be a substance or a mixture of substances that is represented, imported, manufactured, supplied or used as a means of directly or indirectly— (a) destroying, stupefying, repelling, inhibiting the feeding of, or preventing infestation by or attacks of, any pest in relation to a plant, a place or a thing, or (b) destroying a plant, or (c) modifying the physiology of a plant or pest so as to alter its natural development, productivity, quality or reproductive capacity, or (d) modifying an effect of another agricultural chemical product, or (e) attracting a pest for the purpose of destroying it. The term also includes a substance or mixture of substances declared by regulations to be an agricultural chemical product. However, the term does not include a substance or mixture of substances declared by regulations not to be an agricultural chemical product. (2) For the purposes of this Act, a pesticide continues to be regarded as a pesticide even when it is mixed with some other substance (whether or not the other substance is a pesticide). However, a pesticide does not include a prescribed mixture or a mixture of a prescribed class or description. Note— Subsection (2) generally deals with the situation where a pesticide is diluted, or is mixed, before being used. The effect of the provision is that the mixing of a pesticide does not mean that it is no longer a pesticide. 5A Definition of "prescribed pesticide work" (1) In this Act, prescribed pesticide work means the carrying out of any of the following kinds of activities in such circumstances, or by such means, if any, as may be prescribed by the regulations— (a) the supply or use of pesticides for a fee or reward, (b) the piloting or use of aircraft in connection with the supply or use of pesticides (whether or not for a fee or reward), (c) the carrying on of a business involving any of the activities referred to in paragraph (a) or (b), including the employment or engagement of persons to carry out the activities for the business, (d) the carrying out by a public authority of any of the activities referred to in paragraph (a) or (b), including— (i) the supply or use of pesticides without a fee or reward, and (ii) the employment or engagement of persons to carry out the activities for the public authority. (2) For the purposes of subsection (1), the regulations may prescribe circumstances or means in relation to an activity referred to in that subsection by reference to all circumstances or means relating to the activity or by reference to specified classes of circumstances or means relating to the activity. (3) The regulations may make provision for or with respect to the training and supervision of trainees in connection with the carrying out of prescribed pesticide work. (4) In this section— business includes carrying out an activity as a self-employed person, but not as an employee. fee or reward includes remuneration paid to a person as an employee. 5B Fit and proper persons (1) In determining whether a person is a fit and proper person to hold a licence, the Authority may take into consideration any or all of the following— (a) whether the person has— (i) contravened relevant legislation, or (ii) held a regulatory authorisation that has been suspended or cancelled under relevant legislation, (b) if the person is a corporation—whether a director or former director of the corporation or a related body corporate has— (i) contravened relevant legislation, or (ii) held a regulatory authorisation that has been suspended or cancelled under relevant legislation, (c) if the person is a corporation—whether a director or former director of the corporation or a related body corporate is or has been the director of another corporation that has— (i) contravened relevant legislation, or (ii) held a regulatory authorisation that has been suspended or cancelled under relevant legislation, (d) the person's record of compliance with relevant legislation, (e) if the person is a corporation—the record of compliance with relevant legislation of each director or former director of the corporation or a related body corporate, (f) whether, in the Authority's opinion, any dealings of the person with pesticides under a licence will or will not be in the hands of a technically competent person, (g) whether, in the Authority's opinion, the person is of good repute, having regard to character, honesty and integrity, (h) if the person is a corporation—whether, in the Authority's opinion, each director and former director of the corporation or a related body corporate is of good repute, having regard to character, honesty and integrity, (i) whether, in the previous 10 years, the person has, in this jurisdiction or another Australian jurisdiction, been convicted of an offence involving fraud, dishonesty or other behaviour the Authority considers would make the person unfit to hold a licence, (j) if the person is a corporation—whether, in the previous 10 years, a director and former director of the corporation or a related body corporate has, in this jurisdiction or another Australian jurisdiction, been convicted of an offence involving fraud, dishonesty or other behaviour the Authority considers would make the person unfit to hold a licence, (k) whether, during the previous 3 years, the person was personally insolvent, (l) if the person is a corporation—whether, during the previous 3 years, a director or former director of the corporation was personally insolvent, (m) if the person is a corporation—whether the person or a related body corporate applied to take the benefit of a law for the relief of insolvent debtors or compounded with the person's or body corporate's creditors, (n) for an individual—whether the person is or was a director of a corporation that— (i) is the subject of a winding up order, or (ii) has had a controller or administrator appointed during the previous 3 years, (o) for a corporation—whether the corporation or a related body corporate— (i) is the subject of a winding up order, or (ii) has had a controller or administrator appointed during the previous 3 years, (p) whether the person has demonstrated to the Authority the financial capacity to comply with the person's obligations under the licence or the proposed licence, (q) whether the person is in partnership with a person whom the Authority does not consider to be a fit and proper person under this section, in connection with dealings with pesticides authorised, or sought to be authorised, by a licence, (r) if the person is a corporation—whether a related body corporate is in partnership with a person whom the Authority does not consider to be a fit and proper person under this section, in connection with dealings with pesticides authorised, or sought to be authorised, by a licence, (s) another ground the Authority considers appropriate. (2) In this section— cancelled includes revoked. director of a body corporate includes a person involved in the management of the affairs of the body corporate. regulatory authorisation, in relation to relevant legislation, means any licence, permit, consent, approval or other authority under the legislation. 6 Eligible laws for purposes of Agvet Code—matters authorised by permit Sections 12, 13 and 15 are declared to be eligible laws for the purposes of the definition of permit in section 109 of the Agvet Code. Note— The effect of a permit issued under section Part 7 of the Agvet Code is that it authorises a person to whom it applies to do (or omit to do) something that is otherwise prohibited by this Act, so long as the person does so in accordance with the conditions of the permit. In other words, a person who wants to do something in respect of a pesticide that would otherwise be prohibited under a provision of this Act that is an eligible law, may obtain a permit in respect of the doing of the thing. Part 2 Control of pesticides Division 1 Wilful or negligent misuse of pesticides 7 Injury to persons or damage to property resulting from pesticide use (1) A person is guilty of an offence if the person wilfully or negligently uses a pesticide in a manner that— (a) injures or is likely to injure any other person, or (b) damages or is likely to damage any property of another person. Maximum penalty— (a) $2,000,000 in the case of a corporation, or (b) $500,000 in the case of an individual. Note— An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112. (1A) For the purposes of subsection (1) (b) in its application to any part of premises used for agricultural operations (including farming, horticultural or aquacultural operations), damage, or likely damage, from the use of a pesticide includes when the use of a pesticide— (a) prevents, or is likely to prevent, that part of the premises from being used for such operations (whether temporarily or permanently), or (b) reduces, or is likely to reduce, the capacity of that part of the premises to be used for such operations (whether temporarily or permanently). (2) "On-farm" exception A person does not commit an offence under subsection (1) if the person establishes— (a) that the injury or damage occurred, or is likely to occur, only on the agricultural farm land in respect of which the pesticide was used, and (b) that the person is the occupier of that land or is employed or engaged by the occupier of that land. 8 Harm to animals or plants resulting from pesticide use (1) A person is guilty of an offence if the person wilfully or negligently uses a pesticide in a manner that— (a) harms any non-target animal or non-target plant, or (b) if there is no approved label or permit for the pesticide—harms any animal or plant. Maximum penalty— (a) $2,000,000 in the case of a corporation, or (b) $500,000 in the case of an individual. Note— An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112. (2) "On-farm"/residential premises exception A person does not commit an offence under subsection (1) if the person establishes— (a) that the harm occurred only on the agricultural farm land, or the residential premises, in respect of which the pesticide was used, and (b) that the person is the occupier of that land or those premises, or is employed or engaged by the occupier of that land or those premises. 9 Material harm to endangered, vulnerable or protected animals (1) A person is guilty of an offence if the person wilfully or negligently uses a pesticide in a manner that materially harms— (a) an animal that is a threatened species within the meaning of the Biodiversity Conservation Act 2016, or (b) any protected animal within the meaning of the Biodiversity Conservation Act 2016. Maximum penalty— (a) $2,000,000 in the case of a corporation, or (b) $500,000 in the case of an individual. Note— An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112. (2) For the purposes of subsection (1), the following matters are taken to be relevant in determining whether the harm to any such animal is material— (a) the number of animals harmed, (b) the type of animals harmed, (c) the local population of the type of animal harmed. (3) Nothing in subsection (2) limits the matters that may be considered in determining whether harm to an animal that is a threatened species or to a protected animal is material. Division 2 Misuse of pesticides 10 Injury to persons or damage to property resulting from pesticide use (1) A person must not use a pesticide in a manner that— (a) injures or is likely to injure any other person, or (b) damages or is likely to damage any property of another person. Maximum penalty— (a) $120,000 in the case of a corporation, or (b) $60,000 in the case of an individual. Note— An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112. (1A) For the purposes of subsection (1) (b) in its application to any part of premises used for agricultural operations (including farming, horticultural or aquacultural operations), damage, or likely damage, from the use of a pesticide includes when the use of a pesticide— (a) prevents, or is likely to prevent, that part of the premises from being used for such operations (whether temporarily or permanently), or (b) reduces, or is likely to reduce, the capacity of that part of the premises to be used for such operations (whether temporarily or permanently). (2) "On-farm" exception A person does not commit an offence under subsection (1) if the person establishes— (a) that the injury or damage occurred, or is likely to occur, only on the agricultural farm land in respect of which the pesticide was used, and (b) that the person is the occupier of that land or is employed or engaged by the occupier of that land. (3) "Due diligence" defence It is a defence in any proceedings against a person for an offence under this section if the person establishes— (a) that the commission of the offence was due to causes over which the person had no control, and (b) that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence. 11 Harm to animals or plants resulting from pesticide use (1) A person must not use a pesticide in a manner that— (a) harms any non-target animal or non-target plant, or (b) if there is no approved label or permit for the pesticide—harms any animal or plant. Maximum penalty— (a) $120,000 in the case of a corporation, or (b) $60,000 in the case of an individual. Note— An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112. (2) "On-farm"/residential premises exception A person does not commit an offence under subsection (1) if the person establishes— (a) that the harm occurred only on the agricultural farm land, or the residential premises, in respect of which the pesticide was used, and (b) that the person is the occupier of that land or those premises, or is employed or engaged by the occupier of that land or those premises. (3) "Due diligence" defence It is a defence in any proceedings against a person for an offence under this section if the person establishes— (a) that the commission of the offence was due to causes over which the person had no control, and (b) that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence. 11A Harm to companion animals resulting from pesticide use (1) A person must not use a pesticide in a manner that harms a companion animal that is in or on premises with the consent of the owner or occupier of the premises. Maximum penalty— (a) $120,000 in the case of a corporation, or (b) $60,000 in the case of an individual. (2) It is a defence in any proceedings against a person for an offence under this section if the person establishes— (a) that the commission of the offence was due to causes over which the person had no control, and (b) that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence. (3) In this section— companion animal has the same meaning as in the Companion Animals Act 1998. Division 3 General offences relating to control of pesticides 12 Possession of unregistered pesticide (1) A person must not possess an unregistered pesticide unless the person— (a) is authorised to do so by a permit, and (b) complies with the permit. Maximum penalty— (a) $120,000 in the case of a corporation, or (b) $60,000 in the case of an individual. Note— The effect of a permit is explained in the note to section 6. This offence is an "eligible law" for the purposes of Part 7 of the Agvet Code. An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112. (2) A person does not commit an offence against subsection (1) if— (a) the person possesses an unregistered pesticide that is a reserved chemical product, and (b) the pesticide is possessed in accordance with the conditions specified for the reserved chemical product by the Reserved Schedule. 13 Use of unregistered pesticide (1) A person must not use an unregistered pesticide unless the person— (a) is authorised to do so by a permit, and (b) complies with the permit. Maximum penalty— (a) $120,000 in the case of a corporation, or (b) $60,000 in the case of an individual. Note— The effect of a permit is explained in the note to section 6. This offence is an "eligible law" for the purposes of Part 7 of the Agvet Code. An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112. (2) A person does not commit an offence against subsection (1) if— (a) the person uses an unregistered pesticide that is a reserved chemical product, and (b) the pesticide is used in accordance with the conditions specified for the reserved chemical product by the Reserved Schedule. 14 Requirement to read approved label and permit (1) A person must on each occasion before using a registered pesticide— (a) read an approved label for the pesticide, or (b) ensure that an approved label for the pesticide is explained to the person. Maximum penalty— (a) $120,000 in the case of a corporation, or (b) $60,000 in the case of an individual. (2) If a permit is in force in respect of a pesticide, a person to whom the permit applies must on each occasion, before using the pesticide— (a) read the permit, or (b) ensure that the permit is explained to the person. Maximum penalty— (a) $120,000 in the case of a corporation, or (b) $60,000 in the case of an individual. Note— An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112. (3) If a pesticide is mixed with any other substance, any requirement under subsection (1) or (2) in relation to that pesticide is not affected. Note— The mixing of a pesticide with another substance still means that the approved label or permit for the pesticide must be read. 15 Using pesticide contrary to approved label (1) A person must not use a registered pesticide in contravention of any instruction on an approved label for the pesticide unless the person— (a) is authorised to do so by a permit, and (b) complies with the permit. Maximum penalty— (a) $120,000 in the case of a corporation, or (b) $60,000 in the case of an individual. Note— The effect of a permit is explained in the note to section 6. This offence is an "eligible law" for the purposes of Part 7 of the Agvet Code. An offence against subsection (1) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112. (2) If a registered pesticide is mixed with any other substance, the requirement under subsection (1) in relation to the pesticide is not affected. Note— The mixing of a registered pesticide with another substance still means that the relevant instructions on the approved label for the pesticide must be followed. (3) Defences It is a defence in any proceedings against a person for an offence under subsection (1) if the person establishes that— (a) (Repealed) (b) the person complied with the relevant instructions on an approved label for the pesticide (being an approved label that was, at the time of the alleged offence, affixed or attached to, or appeared on, the container for the pesticide that was used), or (c) the person— (i) used the pesticide at a concentration or rate lower than that specified in the instructions on an approved label for the pesticide (provided any such lower concentration or rate was not prohibited by the instructions or by any pesticide control order), and (ii) otherwise complied with the relevant instructions on the approved label. (4) For the purposes of subsection (3), a relevant instruction means an instruction that relates to any of the following matters— (a) any restriction (however expressed) as to the use of the pesticide (for example a direction not to use the pesticide for any purpose, or in any manner, contrary to the approved label unless authorised by law), (b) the situation in which the use of the pesticide is permitted (for example the type of crop), (c) the pest to be controlled by the pesticide, (d) the rate, concentration, frequency or timing, number, volume, or other similar limitation, in respect of which the pesticide may or may not be used, (e) the equipment by means of which the pesticide may be used, (f) the preparation and mixing of the pesticide, (g) withholding periods, (h) any restraints on the use of the pesticide (for example weather conditions, entry to treated areas, distance restrictions), (i) the protection of livestock, crops, wildlife, non-target animals or non-target plants, fish or other aquatic life, (j) the protection of the environment, (k) avoidance of spray drift, vapour movement and odour, (l) storing or disposal of the pesticide, (m) safety directions and other human-health related matters, (n) record keeping, training and notification requirements, (o) expiry dates or dates in which use is permitted, (p) times during the day when use of the pesticide is permitted, (q) any other matter that may be prescribed by the regulations. 16 Keeping pesticides in container without approved label (1) A person must not, without reasonable excuse, keep a registered pesticide in a container that does not have an approved label attached to the container. Maximum penalty— (a) $20,000 in the case of a corporation, or (b) $10,000 in the case of an individual. (2) If a registered pesticide is mixed with any other substance, the requirement under subsection (1) in relation to the pesticide is not affected. 17 Use or possession of restricted pesticides A person must not possess or use a restricted pesticide unless authorised to do so by— (a) a restricted pesticide authorisation, or (b) a pesticide control order. Maximum penalty— (a) $120,000 in the case of a corporation, or (b) $60,000 in the case of an individual. Note— Failure to comply to comply with the conditions of any such restricted pesticide authorisation, or with a pesticide control order, is an offence under this Act. An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112. Part 3 Pesticide control notices Division 1 Preliminary 18 Definitions In this Part— clean-up notice means a notice under Division 2. clean-up action, in relation to pesticide pollution, includes— (a) action to prevent, minimise, remove or mitigate the pesticide pollution, or (b) ascertaining the nature and extent of the pesticide pollution, or (c) preparing and carrying out a remedial plan of action. compliance cost notice means a notice under Division 4. prevention notice means a notice under Division 3. Division 2 Clean-up notices 19 Environment Protection Authority may direct clean-up action (1) The Environment Protection Authority may, by notice in writing, do either or both of the following— (a) direct a person who is reasonably suspected by the Authority of causing or having caused any pesticide pollution, (b) direct an occupier of premises at which the Authority reasonably suspects that any pesticide pollution is occurring or has occurred, to take such reasonable clean-up action as is specified in the notice and within a reasonable period that is specified in the notice. (2) The clean-up notice may require the person to whom the notice is given to furnish reports to the Environment Protection Authority regarding progress on the carrying out of the clean-up action. (3) If the person given a clean-up notice complies with the notice but was not the person who caused the pesticide pollution, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who caused the pesticide pollution. (4) A person who, without reasonable excuse, does not comply with a clean-up notice given to the person is guilty of an offence. Maximum penalty— (a) in the case of a corporation—$120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues, or (b) in the case of an individual—$60,000 and, in the case of a continuing offence, a further penalty of $30,000 for each day the offence continues. Note— An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112. 20 Clean-up by public authorities (1) If a public authority reasonably suspects, or is advised by the Environment Protection Authority, that any pesticide pollution is occurring or has occurred, the public authority may take such clean-up action as it considers necessary. (2) A public authority may take action under this section whether or not a clean-up notice has been given under section 19, and (if such a notice has been given) whether or not the period specified in the notice under that section has ended. (3) A public authority may take clean-up action under this section by itself or by its employees, agents or contractors. 21 Clean-up directions may be given orally (1) The Environment Protection Authority may, instead of giving a direction under this Division by notice in writing, give the direction orally, but only in such circumstances as the Authority considers to be exceptional. (2) A direction that can be given orally under this Division by the Environment Protection Authority can be given orally by a person who is acting under delegated or other authority from the Authority. (3) A direction given orally to a person ceases to have effect on the expiration of 72 hours from the time it was given unless confirmed by a written clean-up notice given to the person. (4) A direction given orally has the same effect as a direction given by notice in writing, and is taken to be a clean-up notice. 22 Fee (1) The purpose of this section is to enable the Environment Protection Authority to recover the administrative costs of preparing and giving clean-up notices. (2) A person who is given a clean-up notice must within 30 days pay the prescribed fee (if any) to the Environment Protection Authority. (2A) No fee is payable in relation to the revocation or variation of a clean-up notice. (3) The Environment Protection Authority may, on the application of a person to whom subsection (2) applies, extend the time for payment of the fee. (3A) The Environment Protection Authority may waive payment of the whole or any part of the fee. (4) A person who does not pay the fee within the time provided under this section is guilty of an offence. Maximum penalty—$20,000. Division 3 Prevention notices 23 Meaning of environmentally unsatisfactory manner For the purposes of this Division, a pesticide is used in an environmentally unsatisfactory manner if— (a) it is used in contravention of, or in a manner that is likely to lead to a contravention of, any provision of this Act or the regulations, or (b) pesticide pollution is occurring or has occurred as a result of the use of the pesticide. 24 Preventive action (1) This section applies when the Environment Protection Authority reasonably suspects that any pesticide is being, or has been, used in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises). (2) The Environment Protection Authority may, by notice in writing, do either or both of the following— (a) direct the occupier of the premises, (b) direct the person who is using or who used the pesticide, to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the pesticide, or the pesticide and any other pesticide, is in the future used in an environmentally satisfactory manner. (3) The action to be taken may (without limitation) include any of the following— (a) any action relating to the use of a pesticide (for example the method of application, use at a specified time only, use on specified land only, and the climatic conditions in which the pesticide may be used), (b) notification that a pesticide has or is about to be used, (c) ceasing to use a particular pesticide, a particular type of spray equipment or a particular method of application, (d) ceasing to carry on any operation that involves the use of a pesticide, (e) monitoring, sampling, analysing and recording information that is relevant to the use of a pesticide (eg weather conditions), (f) preparing and carrying out a plan of action to prevent any pesticide from being used in an environmentally unsatisfactory manner, (g) installing, repairing, altering, replacing, maintaining or operating equipment or other machinery used in the application of any pesticide. (4) If the occupier who is given a notice is not the person who is using or who used the pesticide, the notice is taken to require the occupier to take all available steps to cause the action to be taken. (5) A prevention notice may require the person to whom the notice is given to furnish reports to the Environment Protection Authority regarding progress on carrying out the action required to be taken by the notice. 25 Offence A person who does not comply with a prevention notice given to the person is guilty of an offence. Maximum penalty— (a) in the case of a corporation—$120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues, or (b) in the case of an individual—$60,000 and, in the case of a continuing offence, a further penalty of $30,000 for each day the offence continues. Note— An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112. 26 Commencement of operation of prevention notice or variation of prevention notice A prevention notice, or a variation of a prevention notice, does not operate— (a) until the period within which an appeal under this Act can be lodged against the notice or variation has expired without an appeal being lodged, or (b) if such an appeal is lodged within that period, until the Land and Environment Court confirms the notice or variation or the appeal is withdrawn, or (c) until the person who has the right to lodge such an appeal notifies the Environment Protection Authority in writing that no appeal is to be made against the notice or variation, whichever first occurs. 27 Fee (1) The purpose of this section is to enable the Environment Protection Authority to recover the administrative costs of preparing and giving prevention notices. (2) A person who is given a prevention notice by the Environment Protection Authority must within 30 days pay the prescribed fee (if any) to the Authority. (2A) No fee is payable in relation to the revocation or variation of a prevention notice. (3) The Environment Protection Authority may, on the application of a person to whom subsection (2) applies, extend the time for payment of the fee. (3A) The Environment Protection Authority may waive payment of the whole or any part of the fee. (4) The fee is not payable during the currency of an appeal against the prevention notice. (5) If the decision of the Land and Environment Court on an appeal does not invalidate the prevention notice, the fee is payable within 30 days of the decision. (6) A person who does not pay the fee within the time provided under this section is guilty of an offence. Maximum penalty—$20,000. Division 4 Compliance cost 28 Compliance cost notices (1) If the Environment Protection Authority gives a clean-up notice under section 19 to a person, the Authority may, by notice in writing, require the person to pay all or any reasonable costs and expenses incurred by the Authority in connection with— (a) monitoring action under the notice, and (b) ensuring that the notice is complied with, and (c) any other associated matters. (2) A public authority that takes clean-up action under section 20 may, by notice in writing, require— (a) the person who is reasonably suspected by the public authority of having caused the pesticide pollution concerned, or (b) the occupier of the premises at which the public authority reasonably suspects that the pesticide pollution occurred, or both, to pay all or any reasonable costs and expenses incurred by the public authority in connection with the clean-up action. 29 Recovery of amounts (1) The Environment Protection Authority or public authority concerned may recover any unpaid amounts specified in a compliance cost notice as a debt in a court of competent jurisdiction. (2) If the person given a compliance cost notice complies with the notice but was not the person who caused the pesticide pollution, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who caused the pesticide pollution. 30 Registration of compliance cost notices in relation to land (1) If a compliance cost notice has been given by the Environment Protection Authority or a public authority to a person, the Authority or public authority may apply to the Registrar-General for registration of the notice in relation to any land owned by the person. (2) An application under this section must define the land to which it relates. (3) The Registrar-General must, on application under this section and lodgment of a copy of the compliance cost notice, register the notice in relation to the land in such manner as the Registrar-General thinks fit. (4) If the notice relates to land under the provisions of the Real Property Act 1900, the notice is to be registered under that Act. 31 Charge on land subject to compliance cost notice (1) This section applies where a compliance cost notice is registered under section 30, on the application of the Environment Protection Authority or a public authority, in relation to particular land owned by a person. (2) There is created by force of this section, on the registration of the notice, a charge on the land in relation to which the notice is registered to secure the payment to the Environment Protection Authority or public authority of the amount specified in the notice. (3) Such a charge ceases to have effect in relation to the land— (a) on payment to the Environment Protection Authority or public authority of the amount concerned, or (b) on the sale or other disposition of the land with the written consent of the Environment Protection Authority or public authority, or (c) on the sale of the land to a purchaser in good faith for value who, at the time of the sale, has no notice of the charge, whichever first occurs. (4) Such a charge is subject to every charge or encumbrance to which the land was subject immediately before the notice was registered. (5) Such a charge is not affected by any change of ownership of the land, except as provided by subsection (3). (6) If— (a) such a charge is created on land of a particular kind and the provisions of any law of the State provide for the registration of title to, or charges over, land of that kind, and (b) the charge is so registered, a person who purchases or otherwise acquires the land after the registration of the charge is, for the purposes of subsection (3), taken to have notice of the charge. (7) The regulations may make provision for or with respect to the removal of a charge under this section. Division 5 Miscellaneous 32 Multiple notices More than one notice under a provision of this Part may be given to the same person. 33 Extraterritorial application A notice may be given under this Part to a person in respect of a matter or thing even though the person is outside the State or the matter or thing occurs or is located outside the State, so long as the matter or thing affects the environment of this State. 34 Revocation or variation (1) A notice given under this Part may be revoked or varied by a subsequent notice or notices. (2) A notice may be varied by modification of, or addition to, its terms and specifications. (3) Without limiting the above, a notice may be varied by extending the time for complying with the notice. (4) A notice may only be revoked or varied by the Environment Protection Authority. 35 Power to enter land (1) The Environment Protection Authority or a public authority may, by its employees, agents or contractors, enter any premises at any reasonable time for the purpose of exercising its functions under this Part. (2) For the purpose of entering or leaving any such premises, the power conferred by this section extends to entering other premises. (3) A power to enter premises conferred by this section authorises entry by foot or by means of a motor vehicle or other vehicle, or in any other manner. (4) Entry may be effected under this section by the Environment Protection Authority or a public authority with the aid of such authorised officers or police officers as the Environment Protection Authority or public authority considers necessary and with the use of reasonable force. (5) This section does not empower a person to enter any part of premises used only for residential purposes without the permission of the occupier of the premises or the authority of a search warrant under section 199 of the Protection of the Environment Operations Act 1997. Note— Chapter 7 of the Protection of the Environment Operations Act 1997, which contains a search warrant power, extends to the exercise of powers under this Act. 36 Obstruction of persons A person who wilfully delays or obstructs— (a) a person who is carrying out any action in compliance with a notice under this Part, or another person authorised by the person to carry it out, or (b) a public authority that is taking clean-up action under Division 2, or another person authorised by the authority to carry it out, is guilty of an offence. Maximum penalty— (a) in the case of a corporation—$120,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues, or (b) in the case of an individual—$60,000 and, in the case of a continuing offence, a further penalty of $30,000 for each day the offence continues. 37 False or misleading statements in reports A person who in a report required under this Part and lodged with the Environment Protection Authority makes a statement that the person knows is false or misleading in a material particular is guilty of an offence. Maximum penalty— (a) in the case of a corporation—$120,000, or (b) in the case of an individual—$60,000. Part 4 Pesticide control orders 38 Making of pesticide control order (1) The Environment Protection Authority may make a pesticide control order. Note— Section 43 (2) of the Interpretation Act 1987 provides that if an Act confers a power on any person or body to make an order (whether or not the order must be in writing), the power includes power to amend or repeal any order made in the exercise of that power. (2) A pesticide control order may be made— (a) for any purpose relating to the protection of public health, property, the environment or trade, or (b) in order to implement a decision or policy of the APVMA in relation to any pesticide. (3) A pesticide control order has no effect unless it is published in the Gazette. (4) A pesticide control order takes effect on and from the date specified in the order (being a date that is not earlier than the date the order is published in the Gazette). (5) The Environment Protection Authority is to cause a pesticide control order to be published in such manner as the Authority thinks appropriate. (5A) A pesticide control order may refer to or incorporate, with or without modification, a standard or other document prepared or published by a body specified in the order, as in force at a particular time or from time to time. (5B) (Repealed) (6) In this section— APVMA has the same meaning as it has in Agricultural and Veterinary Chemicals (New South Wales) Act 1994. 39 Operation of pesticide control order (1) A pesticide control order may— (a) prohibit or control the use of a pesticide or class of pesticide that is specified in the order, or (b) authorise the use or possession of a restricted pesticide or class of restricted pesticide that is specified in the order, subject to such conditions as may be specified in the order. (2) A pesticide control order may prohibit or control the use of a pesticide, or authorise the use or possession of a restricted pesticide, by reference to any one or more of the following— (a) the manner in which the pesticide to which the order relates may or may not be used (including the equipment by means of which the pesticide may or may not be used), (b) the class of persons who may or may not use the pesticide, (c) the climatic conditions under which the pesticide may or may not be used, (d) the land in respect of which the pesticide may or may not be used, (e) the occasions (whether by reference to particular days of the year or particular times of the day or the year) on which the pesticide may or may not be used, (f) the concentration or application rate in which the pesticide may or may not be used, (g) requiring training in the use of the pesticide, (h) requiring records to be kept in relation to the use of the pesticide, (i) requiring notification to be given, in a specified manner, to persons in the area where a pesticide is proposed to be used, (j) requiring the erection of signs, in or about the area in which a pesticide is proposed to be used, (k) any other circumstances in which the pesticide may or may not be used, (l) any other factor or condition specified in the order. (3) A pesticide control order may impose additional requirements to those appearing on an approved label or specified in a permit. In the event of any inconsistency between the requirements imposed by an order and those appearing on an approved label or specified in a permit, the terms of the order prevail. (4) A person must not contravene a pesticide control order. Maximum penalty— (a) $120,000 in the case of a corporation, or (b) $60,000 in the case of an individual. Note— An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112. Part 5 Miscellaneous powers and offences 40 Application of Chapter 7 of Protection of the Environment Operations Act 1997 Chapter 7 (Investigation) of the Protection of the Environment Operations Act 1997 extends to the exercise of powers in connection with this Act and the regulations. Note— Section 186 of the Protection of the Environment Operations Act 1997 provides that Chapter 7 of that Act extends to the exercise of powers in connection with certain other legislation, including this Act. Chapter 7 of the Protection of the Environment Operations Act 1997 deals with such matters as the appointment of authorised officers, powers to require information and records, powers of entry and search, powers to question and to identify persons, and powers with respect to certain things such as vehicles. 41 Destruction of pesticides (1) An authorised officer may, with the written approval of the Environment Protection Authority, give directions for the destruction of, or rendering harmless of, any pesticide if the authorised officer is of the opinion that— (a) it is necessary in the interest of public health or of any person to do so, or (b) it is necessary to do so because of any harm or risk of harm to any person, property, the environment or trade. (2) A person to whom any such direction is given must comply with the direction. Maximum penalty— (a) $120,000 in the case of a corporation, or (b) $60,000 in the case of an individual. Note— An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112. (3) An authorised officer may give a direction under subsection (1) without the approval of the Environment Protection Authority in an emergency situation where there is an imminent danger to public health (or of any person) or imminent harm to property, the environment or trade. (4) An authorised officer may destroy or render harmless any pesticide, or cause any pesticide to be destroyed or rendered harmless, if the owner of the pesticide authorises the authorised officer to do so. (5) The owner of the pesticide is liable for the expenses incurred in the destruction or rendering harmless of the pesticide concerned. Any such expense may be recovered by the Environment Protection Authority as a debt in a court of competent jurisdiction. 42 Defective equipment (1) This section applies where an authorised officer is of the opinion that any equipment being used in the application of a pesticide is defective to such an extent that, were it to be used, a breach of this Act might reasonably be expected to occur. (2) The authorised officer may, by notice in writing given to such person as appears to the authorised officer to have possession for the time being of the defective equipment, direct the person to cease using the equipment until— (a) such time as the equipment is repaired or serviced in accordance with the notice, or (b) such time as any other requirement specified in the notice is carried out, or (c) such other time as is specified in the notice. (3) A notice given under this section may be revoked or varied by an authorised officer by further notice in writing given to the person. (4) If a notice is given under this section in respect of any equipment, a person must not use the equipment in contravention of the notice. Maximum penalty— (a) $120,000 in the case of a corporation, or (b) $60,000 in the case of an individual. Note— An offence against subsection (4) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 112. (5) If an authorised officer has given a notice under this section in respect of any equipment, the authorised officer may affix to the equipment a notice (a defect notice) to the effect that the equipment is defective and must not be used. (6) A person (other than an authorised officer or person acting with the authority of such an officer) who removes a defect notice, or who obliterates or interferes with a defect notice, is guilty of an offence. Maximum penalty—$60,000. 43 Attachment of aerial spraying equipment to aircraft A person must not attach any aerial spraying equipment to an aircraft unless the aircraft is approved by the Civil Aviation Safety Authority for agricultural operations. Maximum penalty— (a) $120,000 in the case of a corp