Pesticides Act 1999
The Pesticides Act 1999 controls the use of pesticides in New South Wales. The Act aims to reduce the risks associated with the use of pesticides to human health, the environment, property, industry and trade. It also aims to promote collaborative and integrated policies for the use of pesticides.
Pesticides must be registered by the Australian Pesticides and Veterinary Medicines Authority (APVMA) before they can be manufactured, supplied, sold or used. Registered pesticides carry an APVMA-approved label that provides users with instructions that are designed to minimise impacts on health, the environment and trade, and which are based on good agricultural practice.
The Environment Protection Authority (EPA) enforces the proper use of all pesticides in NSW, after the point of sale. This includes pesticide use in agriculture, on public lands and on domestic and commercial premises.
The EPA encourages pesticide users to improve their management of pesticides through education programs and by facilitating communication among different stakeholder groups.
This webpage does not aim to cover all aspects of the Pesticides Act, but rather highlights some of its most important provisions and provides information on investigation and prosecution of breaches of the Act and how to respond to pesticide misuse:
It is an offence to use a pesticide in a way that causes:
- injury or likely injury to another person
- damage or likely damage to another person's property, or
- harm to a non-target plant or animal.
The maximum penalties for these offences are $60,000 for an individual and $120,000 for a corporation. A defence against prosecution is provided where a person takes all reasonable precautions and exercises due diligence when using a pesticide, and the offence occurs due to factors over which the person had no control. Due diligence means taking steps to determine all the risks involved in using a pesticide and taking appropriate action to avoid and minimise those risks (see Using pesticides properly).
In some instances these offences do not apply:
- An on-farm exception applies where the injury, damage or harm occurs only on the farm where the pesticide was used: This exception has been made because there are other laws that apply to on-farm situations, such as the Occupational Health and Safety Act 2000, Native Vegetation Act 2003, Threatened Species Conservation Act 1995 and the common law.
- A residential premises exception applies where harm to non-target plant and non-target animals occurs only on the residential premises where the pesticide was used.
There are higher penalties for people who wilfully or negligently misuse pesticides causing injury, damage or harm: a maximum of $120,000 for an individual and $250,000 for a corporation, reflecting the seriousness of these offences.
The higher penalties also apply to a person who wilfully or negligently uses a pesticide in a way that significantly harms an endangered, vulnerable or protected animal species. For this offence there is no on-farm or residential premises exception.
Do not use pesticides if harm is unavoidable
If harm to persons, property or non-target environment is inevitably going to occur despite all reasonable precautions being taken, the pesticide application should not occur and alternative measures need to be adopted.
It is illegal to possess, prepare for use or use a pesticide in NSW unless it is registered by the APVMA or covered by an APVMA permit.
People simply storing cancelled or deregistered pesticides while waiting for an opportunity to dispose of the pesticide appropriately would not be prosecuted for possession. Prosecution would occur where there was an indication of intent to use an unregistered pesticide.
Special provisions exist under legislation administered by the APVMA to allow people to use pesticides in a way that is not described on the approved label. The APVMA can approve such off-label use by issuing a permit. A permit is similar to a label in that all instructions must be strictly followed.
In NSW it is illegal to disregard the label instructions on a registered pesticide. You must read the label or have it read to you before using any pesticide. Furthermore, you need to read all the label instructions, not just the rate of application. Then you must carefully follow all the instructions on the label.
There are only two exceptions for using a pesticide contrary to the label instructions:
- you have an APVMA permit describing such use and you comply with the permit
- you use a lower application rate than recommended on the label, unless the label instructions or an EPA pesticide control order specifically prohibits use at lower rates.
The 'lower than label rate' exception can help reduce pesticide risk by allowing less pesticide to be applied, where appropriate.
Storing pesticides in unlabelled containers such as soft drink bottles or open buckets may pose a real danger to human health, especially to children. The Act requires that a person must not keep a pesticide in a container that does not bear its approved label, without reasonable excuse. It would not be an offence to store pesticides (diluted or otherwise) in a spray tank during spray operations, or to store pesticides from leaking containers in unlabelled containers for a short period until a replacement label or labelled container is obtained.
In any situation the ultimate responsibility for pesticide use rests with the user. If you choose to use a pesticide then you must use it correctly.
A fundamental part of proper use is to read and follow all the instructions on the label.
There are specific requirements for aerial applicators of pesticides. Refer to For aerial applicators for details relating to licensing, record keeping and notification.
Everyone involved in the decision-making for the use of a pesticide is responsible for ensuring proper use, and may also share the liability if the pesticide is misused.
Decisions about the application of pesticides on land are often shared between the pesticide applicator, the occupier of the land and a consultant who provides advice and direction on optimal pesticide application.
Where an occupier of land fails to provide essential information, provides wrong or misleading information, or coerces or pressures another person so that pesticide misuse occurs, the land occupier may be guilty of an offence. Section 111 provides that any person who causes or permits, by act or omission, another person to commit an offence under this Act may also be guilty of that offence.
The common law principle of vicarious liability also applies. This means that in cases where the person applying the pesticide is an employee of another person, charges can be laid against the employer, as well as or instead of, the employee. A similar liability also applies to a person engaging a contractor where that person has control over the contractor. Company directors may also be personally liable for offences committed by the company.
Under the Pesticides Act, the EPA may issue a penalty infringement notice (PIN) for some offences, rather than commence prosecution action. PIN penalties are much lower than prosecution penalties. EPA Prosecution Guidelines require the basic facts of the offence to be established before a PIN is issued.
If a person issued with a PIN pays the penalty within the set period, the matter is finished and no criminal conviction is recorded. If further evidence comes to light that indicates the PIN was wrongly issued, EPA can withdraw the PIN and any monies paid will be refunded. Paying the PIN is not regarded as an admission of liability if there is any civil litigation arising from the incident.
PINs are used by the EPA in matters where the essential facts of the offence are not in dispute.
Carefully follow the APVMA instructions on the label or permit for the pesticide's correct use, storage and disposal.
Also, assess each application thoroughly before using the pesticide and take all reasonable actions to ensure that non-target impacts are avoided, for example:
- Make sure that the right chemical for the job has been selected.
- Spray in suitable weather conditions so that spray does not drift outside the target area.
- Ensure that spraying does not take place if people or non-target plants or animals are likely to be downwind of an application and exposed to the spray.
- Provide adequate buffer areas between the application and dwellings or sensitive areas.
- Provide adequate instructions and training to employees before application is carried out.
- Assess potential risks for harm before application and take steps to minimise risks.
- Use equipment for the job that minimises or prevents non-target impacts.
- Ensure that the equipment used is well maintained and calibrated.
- Obtain all relevant information from the landowner about surrounding sensitive or susceptible areas.
The EPA can direct a person to take clean-up action that will reduce an ongoing harm or risk of harm to health, property, the environment, or trade. Clean-up notices may be issued to a person or an occupier of premises where the EPA reasonably suspects that the person is causing or has caused any pesticide pollution.
For example, where a pest controller has treated a home for cockroaches and leaves pesticide dust covering the kitchen benchtops, cooking appliances and utensils, the EPA can direct the pest controller to clean up the pesticide so that the house is fit for residents to occupy. The maximum penalty for failing to comply with a clean-up notice is $60,000 for an individual and $120,000 for a corporation.
The EPA can issue a prevention notice to a pesticide user where it reasonably suspects that there is or is likely to be a breach of the Act, or where a particular case of pesticide use is likely to pose a threat to human health, property or the environment. For example, the EPA could issue a prevention notice to restrict pesticide spraying where persistent poor spraying practices have not been corrected after advice and warnings from the agency.
A link between the harm or likely harm and the use of the pesticide must be established to issue a prevention notice.
The maximum penalty for failing to comply with a prevention notice is $60,000 for an individual and $120,000 for a corporation.
An important tool for managing pesticides on a statewide or regional basis is provided by the ability of the EPA, with the consent of the Minister for the Environment, to make orders relating to the manner in which pesticides may be applied. Under the Act, orders may apply to both aerial and ground applications of pesticides.
The maximum penalty for failing to comply with an order is $60,000 for an individual and $120,000 for a corporation.
Codes of practice provide procedures to guide pesticide users to ensure that they minimise the risk to others. These codes can be developed jointly by government, industry and other stakeholders. The Act allows for codes to be formally recognised under the legislation.
While compliance with adopted codes is not mandatory, codes can be a point of reference for the EPA when deciding whether to prosecute. The court can also take into account compliance with codes when considering whether the user was negligent and in setting penalties.
The Pesticides Regulation 2009 has requirements relating to record-keeping, training and notification.
Record-keeping requirements apply for all commercial users of pesticides, including farmers, noxious weed authorities, council sprayers and anyone else using pesticides as part of their business. People using pesticides in their home for domestic purposes, such as weed control in their garden, are not required to keep records.
Under the training requirements, people who use pesticides in their business or as part of their job must be trained in how to use those pesticides. Certain groups must also provide notification of pesticide use.
Always consider whether non-chemical options are available for your particular pest problem and use pesticides only where they are absolutely justified (choose low-toxicity pesticides where appropriate).
EPA-authorised officers investigate possible breaches of the Act and have powers to obtain information and evidence in the course of an investigation. This may involve asking questions or entering property to inspect and seize pesticides. It is an offence for a person to obstruct an EPA officer in carrying out these duties.
All EPA-authorised officers carry an authorisation card with photo identification which you are encouraged to ask to see. EPA-authorised officers can advise you on your legal responsibilities and other pesticide issues.
EPA officers can be contacted by calling the Environment Line on 131 555.
The EPA may pursue regulatory or non-regulatory options to prevent, control, abate or mitigate any harm to the environment caused by an alleged offence or to prevent the alleged offence from continuing.
Maximum fines for breaches of the Act are considerable - up to $120,000 for an individual and $250,000 for a corporation. For a person to be convicted of an offence under the Pesticides Act 1999, the EPA must present evidence that proves beyond reasonable doubt that an offence has been committed.
The EPA Prosecution Guidelines set out the EPA's policy on bringing and conducting prosecutions.
Where can I get a copy of the Pesticides Act 1999
See the summary of the Pesticides Act 1999 on the EPA website. A complete copy of the Pesticides Act 1999 can be downloaded from www.legislation.nsw.gov.au.
For more information about the Pesticides Act or to notify the EPA about a pesticide misuse, call Environment Line on 131 555 (local call cost in NSW).
For an overview of the roles of NSW government agencies and other stakeholder organisations see Managing pesticides in NSW. For information on pesticide misuse and reporting incidents see How to respond to pesticide misuse.
Page last updated: 03 December 2013