- See Regulating pesticides in NSW for more information about the role of the EPA and other regulators.
The EPA regulates the safe and correct use of pesticides in NSW, from the point of sale, under the <i>Pesticides Act 1999</i> and the Pesticides Regulation 2017 to protect the environment and community.
The Pesticides Act 1999 controls the use of pesticides in NSW. It aims to
- reduce risks to human health, the environment, property, industry and trade
- promote collaborative and integrated policies for pesticide use
Under the Act, all pesticide users in NSW must
- only use pesticides registered or permitted by the Australian Pesticides and Veterinary Medicines Authority (APVMA)
- obtain an APVMA permit if they wish to use a pesticide in a way not covered by the label
- read the approved label and/or APVMA permit for the pesticide product (or have the label/permit read to them) and strictly follow their directions
- only keep registered pesticides in containers bearing an approved label
- prevent injury to people, damage to property and harm to non-target plants and animals from using a pesticide
The Act also provides for
- offences and penalties
- clean-up notices, orders and other ways of dealing with breaches of the Act
- regulations to be made covering any matter that enforces the legislation; see Pesticides Regulation 2017.
Under Part 2, Division 2 of the Pesticides Act, it is an offence to use a pesticide in a way that
- injures or is likely to injure another person
- damages or is likely to damage another person's property
- harms a plant or animal other than the target pest
- harms a companion animal
The maximum penalties for these offences are
- $60,000 for an individual
- $120,000 for a corporation
Under Part 2, Division 1 of the Pesticides Act, you will face higher penalties if you wilfully or negligently
- misuse pesticides causing injury, damage or harm to people or property
- misuse pesticides, harming a plant or animal other than the pest
- use a pesticide in a way that significantly harms an endangered, vulnerable or protected animal species
The maximum fines are
- $120,000 for an individual
- $250,000 for a corporation
You could also be prosecuted.
The EPA Prosecution Guidelines set out the EPA's policy on bringing and conducting prosecutions.
Defences and exceptions
- An on-farm exception applies where the injury, damage or harm occurs only on the farm where the pesticide was used, and the pesticide is applied by the owner or someone employed by the owner. Other laws apply to these 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 injury, damage or harm occurs only on the residential premises where the pesticide was used and the pesticide is applied by the owner or someone employed by the owner.
- A due diligence defence applies when a person can prove they had no control over factors causing the injury, damage or harm and that they took all reasonable precautions and actions to prevent the offence from being committed.
Which defences and exceptions apply
- The on-farm exception and due diligence defence apply if a person has injured a person or harmed property under Part 2, Division 2 of the Pesticides Act.
- The on-farm exception, residential premises exception and due diligence defence apply if a person has harmed a plant or animal under Part 2, Division 2 of the Pesticides Act.
- The due diligence defence applies if a person has harmed a companion animal under Part 2, Division 2 of the Pesticides Act.
- The on-farm exception applies if a person has wilfully or negligently misused a pesticide and harmed people or damaged property under Part 2, Division 1 of the Pesticides Act.
- The on-farm exception and residential premises exception apply if a person has wilfully or negligently harmed a plant or animal under Part 2, Division 1 of the Pesticides Act.
- No exception or defence applies is a person has wilfully or negligently harmed a threatened species or protected animal under Part 2, Division 1 of the Pesticides Act.
Penalty infringement notices
The EPA may issue a penalty infringement notice (PIN) for some offences, rather than commence prosecution. PIN penalties are much lower than prosecution penalties.
The EPA uses PINs in matters where the essential facts of the offence are not in dispute.
If you are issued with a PIN and pay the penalty within the set period, the matter is finished and no criminal conviction is recorded. If further evidence comes to light that indicates the PIN was wrongly issued, EPA can withdraw the PIN and your payment will be refunded.
Paying the PIN is not regarded as an admission of liability if there is any civil litigation arising from the incident.
If the EPA suspects that you are causing pesticide pollution, you will be issued with a clean-up notice. This notice will direct you to act to reduce ongoing harm or risk of harm to health, property, the environment, or trade.
For example, where a pest controller has treated a home for cockroaches and leaves pesticide dust covering the kitchen benchtops, cooking appliances and utensils, the EPA can direct them to clean up the pesticide so the house is fit for residents to occupy.
The EPA can issue a prevention notice to a pesticide user where it reasonably suspects that
- there is a breach of the Act
- a breach of the Act is likely to occur
- a particular case of pesticide use is likely to pose a threat to human health, property or the environment
For example, the EPA could issue a prevention notice to restrict pesticide spraying where persistent poor spraying practices have not been corrected after advice and warnings.
A link between the harm or likely harm and the use of the pesticide must be established to issue a prevention notice.
The EPA, with the consent of the Minister for the Environment, can make orders relating to how pesticides may be applied. These orders may apply to both aerial and ground applications of pesticides.
EPA-authorised officers investigate possible breaches of the Pesticides Act and Regulation. They
- have powers to obtain information and evidence in the course of an investigation
- prevent, control, abate or mitigate any harm to the environment caused by an alleged offence, or prevent the alleged offence from continuing
- may interview people and enter property to inspect and seize pesticides
- can advise pesticide users of their legal responsibilities and other pesticide issues
It is an offence for a person to obstruct an EPA officer in who is carrying out these duties.
All EPA-authorised officers carry an authorisation card with photo identification which anyone can ask to see.
The EPA can deal with breaches of the Act through
- on-the-spot fines
- warning letters
- enforceable undertakings
Enforceable undertakings allow the offender to voluntarily enter into a binding agreement with the EPA to undertake tasks to rectify the problems causes by the breach. These undertakings are enforced by the Land and Environment Court.
When choosing between legal proceedings or an administrative solution, the EPA will choose the approach which seems likely to produce the best results, in terms of
- lasting compliance with the law
- redress for environmental harm
- obtaining a good and lasting benefit for the environment
Codes of practice
Codes of practice guide pesticide users in ensuring they minimise risks to others. These codes can be developed jointly by government, industry and other stakeholders. The Act allows for codes to be formally recognised under the legislation.
While compliance with adopted codes is not mandatory, codes can be a point of reference for the EPA when deciding whether to prosecute. The court can also take into account compliance with codes when considering whether the user was negligent, and in setting penalties.