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 pest