Agricultural and Veterinary Chemicals (New South Wales) Act 1994

The legislation casts a wide net. Primary duty-bearers are persons who import, manufacture, supply or use “chemical products” or “active constituents” within the meaning of the Agvet Code. Because the Code is applied as NSW law, any farmer applying a pesticide, any veterinarian prescribing a veterinary medicine, any retailer selling a registered product, and any manufacturer carrying out a “step in the manufacture” must comply with the Agvet Code’s labelling, withholding-period, record-keeping and adverse-event reporting requirements.

Commonwealth officers and authorities are directly affected. The APVMA is given powers and functions under the NSW Act (s 21) and may be directed by the Commonwealth Minister in exceptional circumstances in respect of those functions (s 24). Commonwealth administrative bodies (the ART, the Information Commissioner, the Ombudsman and the Privacy Commissioner) exercise their statutory powers as if the applicable provisions were Commonwealth laws (s 16). The Commonwealth DPP may institute and conduct prosecutions for offences against the Agvet Code of NSW (s 35).

The Crown in right of NSW, and so far as the legislative power of Parliament permits the Crown in all its other capacities, is bound (s 11). However, the Crown is expressly not liable to prosecution (s 13), although it remains subject to the substantive obligations of the Code and to civil remedies. State officers authorised under s 69F of the Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth) become “inspectors” for NSW purposes (s 28) and are protected by validation provisions (s 28B).

Secondary affected parties include persons who suffer loss or injury from the use of regulated products. Section 31(1) gives the State and its coordinators a broad immunity from damages claims arising from APVMA approvals, registrations, permits or licences. Conversely, s 31(2) prevents a manufacturer or supplier from pleading regulatory approval as a defence in a negligence action brought by an injured plaintiff. This dual operation affects insurers, litigators and compliance managers.

Finally, the legislation affects legal practitioners and courts. Because references in any NSW instrument to “the Agvet Codes” are taken to include every participating jurisdiction’s version (s 10), contracts, court orders and statutory instruments must be read expansively. Courts must apply Commonwealth interpretive rules (s 7) and treat matters arising under the applicable provisions as Commonwealth matters for administrative-law purposes (s 16(4)).

The Act itself creates few standalone duties; its function is to import the duties contained in the Agvet Code. Once the Code applies as NSW law, the key obligations are those set out in the Code’s Parts 2 (approvals and registrations), 3 (control-of-use), 4 (manufacturing licences), 7 (permits) and 8 (manufacturing principles). The NSW Act supplements these with ancillary offence rules (s 8), which apply the Crimes Act 1914 (Cth) ss 5, 6, 7, 7A and 86(1) to Code offences and treat related ancillary offences as offences against the Code itself.

Rights created or preserved by the Act include:

• The right to have APVMA decisions reviewed under the Administrative Review Tribunal Act 2024 (Cth) as applied by s 16. The Act expressly preserves the ART’s obligation to give reasons despite the more limited “brief particulars” requirement in the Agvet Code (s 16(2)).
• Freedom-of-information rights in respect of documents held by the APVMA concerning NSW matters (s 16(3)), subject to the Code’s confidential commercial information provisions.
• The right of an injured person to sue for damages without the defendant being able to rely on APVMA approval as a defence (s 31(2)).
• The right of State officers validly appointed under Commonwealth legislation to exercise inspector powers in NSW without technical invalidity (s 28(2)).

The Act also confers powers rather than rights in the traditional sense. Section 21(2) gives the APVMA power to enter contracts, acquire property, appoint agents and do all things “necessary or convenient” for the performance of its NSW functions. The NSW Minister may enter agency agreements (s 22) and the APVMA may perform functions under corresponding laws of other jurisdictions (s 23).

Crown immunity from prosecution (s 13) is a significant privilege, balanced by the binding obligation in s 11 and the override of prerogative in s 14. The exemption from liability in s 31(1) is expressed in exhaustive terms covering every conceivable pathway by which loss could arise from an APVMA regulatory decision.

The Act does not set its own penalty regime. Instead s 8 applies the Commonwealth ancillary criminal laws so that aiding, abetting, attempts, incitement and conspiracy are punishable as if they were offences against the Agvet Code. A reference in the Code to an offence against the Code is taken to include these related offences (s 8(3)).

Enforcement is therefore primarily by the Commonwealth DPP (s 35), who may institute indictable prosecutions, summary proceedings, committal proceedings and anything “incidental or conducive” to those functions. The DPP may take over prosecutions initiated by the NSW Attorney-General or the NSW DPP if requested in writing.

Because the Agvet Code is applied as NSW law, breaches can also be investigated by State inspectors appointed under the Commonwealth Act (s 28A). Their actions are validated retrospectively where necessary (s 28B) and Part 2 of the Co-operative Schemes (Administrative Actions) Act 2001 (NSW) is expressly engaged.

Civil enforcement flows from the preservation of common-law rights in s 31(2). Regulatory decisions do not provide a shield in tort, contract or under the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) claims. The State itself is protected by the broad immunity in s 31(1), which covers both direct and indirect loss arising from approved use, inability to use, or manufacturing steps.

Administrative sanctions (suspension, cancellation, variation of approvals, registrations, permits and licences) are imposed by the APVMA under the Code and are reviewable under the applied Commonwealth administrative law regime.

The Act is expressly designed to sit atop, and where necessary override, other NSW legislation. Section 7(4) excludes the Interpretation Act 1987 (NSW) from the Agvet Code and Regulations. Section 36 authorises regulations that can suspend the operation of provisions of the Stock Medicines Act 1989 (NSW) and treat Agvet Code registrations and labels as satisfying that Act. The 1999 amendments to s 36 expanded this interaction to cover transitional registration equivalence.

The relationship with Commonwealth law is one of cooperative federalism. The NSW Act applies the Commonwealth Code “as in force for the time being” (s 5), automatically incorporating future amendments. Commonwealth administrative laws are applied “as laws of this jurisdiction” (s 16(1)) and are deemed to arise in relation to Commonwealth rather than State law for the purposes of other NSW statutes (s 16(4)).

The Act interacts with the Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth) by conferring additional functions on the APVMA and its CEO (ss 21–24, 28) and with the Agricultural and Veterinary Chemicals Act 1994 (Cth) by applying its manufacturing principles (s 26). References to “the Minister” in the Code are read as the NSW Minister (s 7(1)).

At the constitutional level, s 11’s attempt to bind the Crown in all capacities “so far as the legislative power of Parliament permits” acknowledges the limits of State legislative power over Commonwealth executive functions. The validation provisions in ss 28B and 33A and the note to s 28B expressly invoke the Co-operative Schemes (Administrative Actions) Act 2001 (NSW) to cure any residual invalidity arising from the 2001 amendments that followed the High Court’s decision in R v Hughes (2000) 202 CLR 535.

The most recent textual amendments appear in the 2025 amendments (2025 No 38, Sch 1.1) which updated references from the former Administrative Appeals Tribunal to the Administrative Review Tribunal Act 2024 (Cth). These changes reflect the Commonwealth’s replacement of the AAT with the ART and the need to keep the applied administrative-law package current. The exclusion of Part 7 of the ART Act (merits review procedural rules) was maintained, and s 18A was substituted to ensure that any residual cross-references to the excluded Part continue to operate as Commonwealth law.

The 2016 amendments (2016 No 27, Sch 2.1) updated the definition of APVMA and replaced references to the former National Registration Authority with the APVMA throughout. The 2001 amendments (2001 No 44) were the most substantial. They substituted the whole of Part 5 to clarify the application of Commonwealth administrative laws after the R v Hughes litigation cast doubt on the validity of State conferral of powers on Commonwealth officers. The new Part 5 uses a “matter arising” test and deems such matters to be Commonwealth matters for the purposes of other NSW laws. Sections 28A, 28B and 33A were inserted to validate past actions of inspectors and analysts and to give the new Part 5 retrospective operation.

The 2000 amendments (2000 No 80) inserted the original version of s 18A and adjusted the definition of Commonwealth administrative laws. Earlier changes in 1999 refined the transitional interaction with the Stock Medicines Act 1989.

These changes have been uniformly directed at maintaining constitutional validity, ensuring administrative seamless-ness after Commonwealth machinery-of-government reforms, and preserving the policy objective of a single national regulator.

Although the Act itself has not been the subject of frequent direct litigation, it has been the vehicle through which challenges to the national scheme have been funnelled. The validity of the conferral mechanism was tested in the wake of R v Hughes (2000) 202 CLR 535. That case concerned the Agricultural and Veterinary Chemicals (Western Australia) Act 1995 (WA), whose conferral language was materially identical to the NSW Act. The High Court held that a State could not confer non-judicial power on a Commonwealth officer unless the power was supported by a head of Commonwealth legislative power. The 2001 amendments to the NSW Act (and its counterparts) were a direct legislative response, replacing the earlier conferral language with the current “applicable provisions” and “matter arising” mechanism now found in Part 5. No subsequent High Court challenge has invalidated the revised wording.

Lower-court decisions have explored the interaction between the applied Commonwealth administrative law and the Code’s own confidentiality provisions. In several ART matters, applicants have sought access to APVMA evaluation reports under the Freedom of Information Act 1982 (Cth) as applied by s 16, only to encounter the Code’s confidential commercial information regime. The Act’s express statement in s 16(3) that the Code’s provisions “do not affect” the operation of the FOI Act has generally favoured disclosure, subject to exemptions.

Controversy has also arisen over the breadth of the s 31 immunity. Plaintiffs injured by products that carried APVMA approval have argued that the immunity should be read down so as not to cover gross negligence or reckless disregard. Courts have so far treated the provision as a complete bar to actions against the State or its coordinators, but the subsection has not been the subject of appellate consideration.

The retrospective validation in s 28B and its linkage to the Co-operative Schemes (Administrative Actions) Act 2001 has been noted in several Federal Court decisions concerning the validity of search warrants and notices to produce issued by State inspectors before the 2001 amendments. The provisions have been upheld as effective curative legislation.

Most practitioners assume that because the APVMA is a Commonwealth body its decisions are reviewed in the ART under purely Commonwealth law. In fact the review occurs because s 16 of the NSW Act applies the ART Act “as a law of this jurisdiction”. This has procedural consequences: for example, the ART’s rules of court made under the Commonwealth Act apply, but any NSW-specific practice notes do not. Failure to appreciate this distinction has led to jurisdictional arguments in several matters.

Another trap is s 7(4). Because the Interpretation Act 1987 (NSW) is excluded, definitions and interpretive rules that practitioners instinctively reach for (e.g. the meaning of “document” or rules about service) are not available. Everything turns on the Acts Interpretation Act 1901 (Cth) and the definitions in s 3 of the NSW Act and in the Code itself.

Section 10’s deeming rule can produce surprising results in contracts or court orders. A reference in a NSW supply contract to “compliance with the Agvet Regulations” is taken to include the regulations of every other jurisdiction. This can incorporate labelling or withholding-period requirements that differ slightly between jurisdictions even though the core Code is uniform.

The s 31(2) “no-defence” rule is often overlooked by product-liability lawyers. A manufacturer cannot tender the fact of APVMA registration as evidence that it discharged its duty of care. This reverses the usual presumption that regulatory compliance is at least some evidence of reasonable conduct.

Finally, the interaction between s 36 transitional regulations and the Stock Medicines Act 1989 is still capable of catching out rural suppliers. A product registered under the Agvet Code may be deemed to satisfy the Stock Medicines Act only to the extent that the regulations so provide; if the regulations have not been updated, a separate registration under the 1989 Act may still be required.

Compliance begins with recognising that there is only one regulatory system. Any person who imports, manufactures or supplies a chemical product in NSW must ensure the product is either registered, exempt or covered by a permit issued by the APVMA under the applied Code. Labels must comply with the Agvet Code’s labelling standards; manufacturing must follow the manufacturing principles applied by s 26.

Record-keeping obligations under the Code (particularly batch records, adverse-event reports and sales records) must be maintained for the periods specified in the Regulations. Because s 8 applies Commonwealth ancillary offence provisions, organisations must ensure that their internal policies address not only primary offences but also accessorial liability, attempts and conspiracies.

For administrative compliance, applicants for review of APVMA decisions should file in the ART and cite both the Agvet Code and the NSW Act as the source of jurisdiction. FOI requests should be framed as requests under the Freedom of Information Act 1982 (Cth) as applied by s 16.

State government agencies and local authorities that use pesticides must comply with the control-of-use provisions of the Code even though the Crown is immune from prosecution. Internal authorisations should be obtained and records kept as though the immunity did not exist, because s 31(1) immunity does not protect individual officers from personal liability in all circumstances.

Businesses should maintain a register of all APVMA approvals, registrations, permits and licences that apply to their products and review the conditions attached to each instrument. Changes to those conditions (which the APVMA may make by legislative instrument) automatically become conditions under NSW law.

Finally, organisations should monitor Commonwealth amendments to the Code, the Agricultural and Veterinary Chemicals Act 1994 (Cth) and the administrative-law package. Because the NSW Act picks up those statutes “as in force for the time being”, a Commonwealth change is automatically a change to NSW law. A compliance calendar that tracks both Commonwealth Federal Register of Legislation notifications and NSW Gazette proclamations is essential.

In summary, compliance is achieved by treating the Agvet Code as the sole source of regulatory obligation in NSW, using the administrative review and FOI pathways created by Part 5, maintaining robust record-keeping to defend against both regulatory and civil claims, and staying alert to the subtle interpretive and transitional provisions that the 1994 Act layers on top of the national scheme.