The information contained in this fact sheet is current as at 21 September 2006.

Topic 3 - Pollution

3.5 Pesticides

Pesticides are widely used to control pests on crops and in buildings. These include b actericides , b aits, fungicides, herbicides, insecticides, lures, rodenticides and repellents.

There are numerous State and federal laws that control pesticides. These laws focus on different aspects of the life-cycle of pesticides, including manufacture, importation, transport, sale, storage, use, introduction to the environment and disposal.

Furthermore, many of these laws focus on the need to protect human health, either by occupational health and safety standards or via food quality standards, although there is an increasing emphasis on protecting the environment in its own right.

The emphasis here is on the use of such chemicals and the ways in which such uses are regulated to protect the environment. For other laws relating to chemicals and pesticides at other points in the life-cycle see Section 3.4 – Toxic Chemicals.

There is a national scheme for the registration of agricultural chemicals called the Agricultural and Veterinary Chemicals Code (AGVET Code). These chemicals are also dealt with under state legislation – in the case of New South Wales , the Pesticides Act 1999 .

3.5.1. Federal Regulation of Pesticides

The AGVET Code regulates the assessment, approval and control procedures relating to the supply of pesticides and their active constituents. These procedures are overseen by the National Registration Authority (NRA), an independent statutory authority.

3.5.1.1. Assessment and Registration

Agricultural or veterinary chemical products must be assessed and registered by the National Registration Authority (NRA) before they can be sold. As well as registering the chemical product itself, the NRA has to approve the product's active constituents and labels for chemical product containers. There are nearly 4000 pesticide products registered for use in New South Wales .

The NRA must grant an application if it is satisfied of a long list of matters. These include that:

• all formal requirements have been complied with, including the giving of samples;
• there would not be an undue hazard to the safety of people exposed to it during its handling or people using anything containing its residues;
• the product would not be likely to have an effect that is harmful to human beings;
• the product would not be likely to have an unintended effect that is harmful to animals, plants or the environment; and
• there would be no undue prejudice to trade or commerce between Australia and places outside Australia .

Approvals and registrations can include conditions, and failure to abide by these may lead to their cancellation or suspension.

3.5.1.2. Permits

The National Registration Authority (NRA) may also issue permits for activities that would otherwise be prohibited under the relevant laws. Permits have a narrower application than registrations and approvals, being for specific purposes. Examples of circumstances for which a permit may be issued include:

• a trial or experiment conducted to determine whether to apply for approval and registration,
• importing samples to submit to the NRA, and
• using a registered product in an unapproved manner.

Permits can be issued in response to an application or on the NRA's own initiative.

3.5.1.3. Restricted Products

Regulations may also restrict the use of a chemical product, which means the product must be labelled appropriately and can only be supplied to authorised people.

Such a restriction can only be made if it is in the public interest to do so. In making such a determination, the National Registration Authority must consider:

• whether the product may have a harmful effect on human beings;
• whether the product may have any unintended effect that is harmful to animals, plants or to the environment;
• whether any special knowledge, skill or qualification is required in the preparation or handling of the product; and
• whether any special equipment is required to use the product safely.

3.5.1.4. Offences

There are a number of offences relating to the contravention of registration and approval procedures. These include:

• importing an unregistered chemical product into Australia ;
• failing to comply with certain directions given by the National Registration Authority;
• failing to comply with a condition of an permit or licence;
• possessing, supplying or advertising unregistered chemical products or unapproved active constituents for sale;
• supplying registered chemical products or approved active constituents in a way that contravenes approval or registration conditions;
• supplying chemical products or making claims about them in a way that contravenes an approved label;
• supplying substances with constituents that differ from the registered product;
• supplying a product that doesn't conform with a standard set for that product; and
• manufacturing chemical products without a licence.

3.5.1.5. Recall Notices

The National Registration Authority (NRA) may issue a recall notice requiring a person who has stocks of chemical products in their possession to stop supplying the products and to take action as directed by the NRA.

There are a wide variety of circumstances in which the NRA can exercise this power, including criteria similar to those noted above – for example, if the use was continued and:

• there would be an undue hazard to the safety of people exposed to it during its handling or people using anything containing its residues;
• the product would be likely to have an effect that is harmful to human beings; or
• the product would be likely to have an unintended effect that is harmful to animals, plants or things or to the environment.

The ACCC also has powers to issue product recall notices, under the Commonwealth Trade Practices Act 1974.

3.5.1.6. Public Participation

The National Registration Authority (NRA) must keep a public register of approved chemical products and active constituents as well as a record of approved active constituents and permits. The form of both the register and the record are at the discretion of the NRA but the public is entitled to see those parts of the record that do not contain confidential information.

The NRA also has a large amount of discretion about the publication of details regarding licences to manufacture chemical products. These details include a list of the licence holders and the address of the relevant premise, the chemical products that have been licensed and the manufacturing processes that have been authorised.

The NRA must publish a notice before deciding whether to approve an active constituent or to register a chemical product containing a new active constituent. Such notice is to be in the Gazette (and may be elsewhere) and provide at least 28 days for submissions. The NRA must take submissions into account before deciding to approve or register the product.

A ‘person whose interests are affected' may apply to the Administrative Appeals Tribunal for review of certain decisions made under the Act. Most of these appeal rights apply to applicants. For example, there are no rights to appeal against the grant of an approval, only a refusal.

However, there are rights to appeal against the conditions attached to a grant of an approval, which may allow the public to challenge such decisions, provided they can show they are ‘a person whose interests are affected'.

A person whose interests are affected may apply for a statement of the reasons for many of the decisions under the Code. Any person has the right to bring proceedings for an injunction if a person has engaged, or is proposing to engage, in a contravention of the Code.

3.5.2. NSW Regulation of Pesticides

The use of pesticides in New South Wales is principally regulated by the  Pesticides Act 1999 . Other laws may apply as set out below.

The Pesticides Act regulates the storage, use and disposal of pesticides. In particular, it focuses on preventing harm to the environment and to human health by the use of pesticides. The Pesticides Act is administered and enforced by the Environment Protection Authority, an agency within the Department of Environment and Conservation. The Minister for the Environment has ministerial responsibility for administering the Pesticides Act 1999.

It is important to note that acts or omissions committed outside New South Wales will still be caught under the Pesticides Act 1999 , provided that the harm is present or likely within New South Wales . Pesticide control orders can be issued in similar circumstances.

3.5.2.1. Registered and Unregistered Pesticides

The Pesticides Act 1999 regulates the use of agricultural chemical products and certain veterinary chemical products. There are different requirements under the  Pesticides Act for the use of registered pesticides and unregistered pesticides.

There are several basic propositions that underpin the way the controls work:

• unregistered pesticides cannot be used:
• except with a permit; or
• by certain persons;
• registered pesticides must only be kept in containers bearing an approved label and must be used in accordance with the instructions on the label and
• all pesticide users needs to meet certain public health and environmental standards in order to avoid harm.

Unregistered Pesticides

Unregistered pesticides can only be used in limited circumstances. First, if a person holds a permit for that pesticide, or a permit is in force allowing the use of that pesticide. Second, some unregistered pesticides may be classified as ‘restricted pesticides'.

Restricted Pesticides

Restricted pesticides are generally more harmful pesticides and, consequently, controls are placed on who can use them. A certificate of competency is required to use or possess a restricted pesticide.

Registered Pesticides

Any person who uses a registered pesticide must do so in accordance with the directions on the label, must read or explain the label before each use and must store the pesticide in a container with an approved label. The National Registration Autjority sets out labelling requirements in the Agricultural and Veterinary Chemicals Code.

3.5.2.2. Pesticide Control Orders

Pesticide control orders set out who, or who may not, use a particular pesticide and/or the conditions under which they can be used. A pesticide control order may be made by the Environment Protection Authority with the approval of the NSW Minister for the Environment.

At the time of publication, ten pesticide control orders had been made. For example, pesticide order ‘Air 1' governs the way in which pesticides are used. It provides that a person may not carry out aerial spraying of a pesticide within 150m of dwellings, schools, factories or public places unless the owner or occupier of that place consents in writing.

The other nine pesticide orders relate to restricted pesticides. These include: sodium monofluoroacetate (1080) poison baits for rabbits, feral pigs, wild dogs and foxes; endosulfan; termidicides; bromadiolione; pindone concentrate; and, Mevinphos (phosdrin).

3.5.2.3. Aerial Spraying

A person must hold the relevant pilot's licence for the application of pesticides and the relevant aircraft licence before engaging in the aerial spraying of pesticides. The Environment Protection Authority issues licences for aerial pesticide spraying.

The holder of the aircraft licence must keep detailed records of each spray application, including the pesticide that was applied, the land on which it was applied and the weather conditions at the time of application.

It is illegal to attach aerial spraying equipment to any aircraft unless the aircraft is approved by the Civil Aviation Safety Authority for agricultural operations.

The Department of Infrastructure, Planning and Natural Resources recommends that local councils incorporate a 150 metre buffer zone between development and land where agricultural management could involve aerial spraying of pesticides. Draft local environment plans to rezone land should also take this 150 metre recommendation into account.

3.5.2.4. Pesticide Residues

The Pesticides Act controls pesticide residues in agricultural produce. An Environment Protection Authority officer can issue a notice setting out how to deal with a specified foodstuff if the inspector suspects that it contains a prohibited residue.

The Minister for the Environment can make an order regarding foodstuff for which a notice has been issued. The order may, among other things, require its destruction. Maximum allowable concentrations of residues are set out in the  Pesticides Regulation 1995.

3.5.2.5. Record-keeping

Farmers, pest controllers, green keepers, councils and government agencies, must make a detailed record of each pesticide application when they are using it as part of their work or operations. These records must be kept for three years. There is no such requirement for the domestic use of pesticides.

3.5.2.6. Offences

Underpinning this framework, the Pesticides Act 1999 seeks to regulate the use of the pesticides by creating a hierarchy of offences.

Intentional offences

The most serious offences are those relating to the deliberate or negligent use of pesticides. There are three such offences:

• wilfully or negligently using pesticides that cause, or are likely to cause, injury to people or damage property (unless the harm occurred on agricultural land and the injury or damage was caused by the owner or occupier of that land or those premises);
• wilfully or negligently using a pesticide to cause harm to a non-target animal or non-target plant (unless the harm occurred on agricultural land or residential premises, and the injury or damage was caused by the owner or occupier of that land or those premises); and
• wilfully or negligently using a pesticide in a manner which causes material harm to an animal that is a threatened species within the meaning of the  Threatened Species Conservation Act or that is protected fauna within the meaning of the  National Parks and Wildlife Act.

Strict liability offences

Other offences do not require that the use of pesticides be deliberate or negligent. However, they similarly require that there be harm to people, property, non-target animals or plants. Similar on-farm or residential exceptions apply. It is a defence to such an offence that the person exercised due diligence.

Specific offences

The Pesticides Act 1999 also creates a number of specific offences. These include:

• possession and use of unregistered and restricted pesticides;
• failing to read and explain labels;
• using pesticides contrary to the label;
• keeping pesticides in unmarked containers;
• obstructing persons; and
• failing to comply with a direction or notice.

Penalty notices

The Environment Protection Authority may issue a penalty notice ('on the spot' fine) for up to $1,500 for minor breaches of most offences under the Pesticides Act. These do not apply to the serious offences, which are based on deliberate or negligent conduct. Current maximum penalties are $400 for individuals and $800 for corporations.

3.5.2.7. Responding to Pesticide Pollution

Where a pesticide has been used contrary to the framework above and/or harm has occurred, the emphasis moves to mitigating the harm, restoring or rehabilitating the environment, ensuring that the harm does not recur and even re-educating the offender. There are a number of mechanisms under the Pesticides Act to achieve these aims.

Clean-up notices

If a person is reasonably suspected of causing pollution by a pesticide, or pesticide pollution is reasonably suspected to be occurring at certain premises, the Environment Protection Authority may issue a clean-up notice to that person or the occupier of those premises.

A clean-up notice may require the person to take such action as removing the pollution, ascertaining the extent of the pollution, and preparing a remedial plan of action. Progress reports may also be required.

Prevention notices

In addition, if the Environment Protection Authority suspects that a person is using a pesticide in an environmentally unsatisfactory manner, the Environment Protection Authority may issue a prevention notice to that person to ensure that, in future, the pesticide is used in a satisfactory manner.

The action that may be required to be taken under a prevention notice includes similar action to that of a clean-up notice, but extends to such action as ceasing to use the pesticide altogether, altering or replacing equipment used in the application of the pesticide, and notifying the Environment Protection Authority that a particular pesticide is going to be used.

Compliance cost notices

These notices allow the Environment Protection Authority, public authorities and persons to recover costs, whether they be for clean up action taken or monitoring expenses.

Court orders

The Court has a variety of orders at its disposal when it finds an offence proven. Orders can be cumulative and additional to penalties provided. Orders include:

• restoring and preventing pollution
• restraining orders regarding the disposition of property
• compensation orders (including recovery of costs and expenses)
• orders to offset any profits made by the offence
• orders for the offender not to use a particular pesticide or class of pesticides
• orders for the offender to take a training course regarding pesticide use.
• orders regarding a specified environmental project for the public good
• orders for the offender to undertake an audit

3.5.2.8. Pesticide codes of practice

The NSW Minister for the Environment may make pesticide codes of practice on the recommendation of the Environment Protection Authority. A pesticide code of practice may set out guidelines on the use or management of pesticides, for example, ground application or aerial spraying. It is not mandatory to comply with a pesticide code of practice.

3.5.2.9. Public Participation

The Environment Protection Authority has a 24-hour Pollution Line on 131 555, to which you can make confidential reports regarding misuse of a pesticide. You should report the incident as soon as possible (subject to being prepared as set out below).

The more information you can provide the easier it will be for any appropriate action to be taken. Photos, video recordings and notes help here. Try to take a note of such details as:

• where the incident took place;
• when the incident occurred;
• what happened, what pesticide was used, how it was used, what crop was involved;
• the context (weather conditions); and
• who did it (owner, occupier or contractor).

A ‘person who is aggrieved' by certain decisions – namely, prevention notices, notices regarding defective equipment and prohibited residue notices or orders – may appeal to the Land and Environment Court.

Only the Environment Protection Authority may bring civil proceedings to restrain a breach or apprehended breach of the Act. This runs counter to most environmental legislation in New South Wales , where any person may bring civil proceedings.

© 2007 Environmental Defender's Office (Ltd) NSW