Agriculture and Related Resources Protection (Spraying Restrictions) Regulations 1979

These regulations, made under the Agriculture and Related Resources Protection Act 1976, prescribe spatial zones and place specific prohibitions and controls on the spraying, storage and movement of certain acid-related agricultural chemicals within those zones. The instrument (the Agriculture and Related Resources Protection (Spraying Restrictions) Regulations 1979, as compiled) does four mechanical things.

First, it defines key terms used in the rules, notably acid, Director and prescribed area (regulation 2). The term acid is given a restricted meaning, namely a chemical listed in the Schedule, and reg 2 expressly includes those chemicals in "a salt, amine or other form". The Schedule lists seven named chemicals (MCPA, MCPB, 2,4-D, 2,4-DB, 2,4,5-T, Dicamba and Picloram).

Second, it prescribes specific geographic areas where different controls apply (regulation 3). Those areas include distance-based zones measured from locations where tomatoes, grapevines or irrigated crops are being grown for commercial purposes (5 km and up to 50 km bands), two concentric radii around the Geraldton Post Office (19 km and 50 km), a 50 km area around Kununurra (with inner 10 km and 10-50 km bands relative to irrigated crops), and a precisely bounded parcel of land in Bassendean defined by landmark coordinates and Swan locations. The prescribed areas are enumerated as regulation 3(a)-(h).

Third, the regulations impose substantive prohibitions on activities involving esters of acids and on the use of the acids themselves in some zones, and they place storage and vehicle/equipment limitations in other zones. The prohibitions are tiered by zone. For example, in the 5 km zones for tomatoes or grapevines and in certain Geraldton and Bassendean zones a person must not spray an ester of an acid or spray a chemical containing an acid without the prior written approval of the Director (regulation 4(1)). In other outer zones a person may spray an ester only if the ester is a "low volatile kind" approved by the Director and notified in the Government Gazette (regulation 4(2)). Storage rules similarly allow storage only of low volatile esters approved by the Director or with prior written approval (regulation 5(1)). Regulation 6 extends constraints to parking, standing, storing or moving vehicles or equipment that carry open containers of, or are contaminated by, esters of acids, within certain prescribed areas, unless the ester is a low volatile kind approved and Gazette-notified.

Fourth, the regulations set the administrative mechanics and enforcement pathways. A person seeking an approval must apply in writing and supply specified particulars (regulation 7). Authorised persons have powers to seize and remove esters stored in contravention and to direct owners or occupiers to remove them within a specified time (regulation 5(2)). The authorised person must take two samples and provide one to the person affected and one to an approved laboratory for analysis, and must deliver the analysis results to the person concerned once obtained (regulation 5(3)-(4)). Contraventions attract monetary fines; the statutory penalty for the listed offences is a fine of $2 000 (regulations 4(1), 4(2), 5(1), 5(3A), 6).

Mechanically, therefore, the regulations allocate decision rights to the Director for approvals and for the identification and Gazette-notification of low volatile esters, allocate inspection, seizure and sampling powers to authorised persons, define where and when spraying and storage of particular chemicals is prohibited or conditionally permitted, and set a uniform monetary penalty for contraventions. The Schedule and Gazette-notification mechanism are the instruments by which the universe of permitted low volatile esters is adjusted administratively. All these mechanics are visible in the text: definitions in reg 2, area definitions in reg 3, activity prohibitions in regs 4-6, sampling and seizure procedure in reg 5, and application requirements in reg 7.

The regulations rest on a compact set of interlocking concepts: the narrow statutory definition of "acid", the separate treatment of "esters of acids", the classification of "prescribed areas", the concept of "low volatile" esters approved by the Director and notified in the Government Gazette, and the roles of the Director and authorised persons.

Acid. The regulations define acid by reference to the Schedule (regulation 2). The Schedule enumerates seven named chemicals. The definition is not open‑ended; acid, for the purpose of these regulations, means a chemical listed in the Schedule, whether in a salt, amine or other form. That formulation makes clear that the Schedule is the source of the substance classification for the regime.

Ester of an acid. The text repeatedly treats "ester of an acid" separately from "acid" as defined in the Schedule. The prohibitions at regulation 4 distinguish between spraying an ester of an acid and spraying "a chemical containing an acid". The storage and vehicle rules often refer specifically to esters of acids, and the enforcement powers in reg 5 target esters stored in contravention. Functionally, esters are the operational focus for storage, transport and vehicle contamination rules, while both esters and acids are controlled for spraying in some areas.

Prescribed areas and spatial tiers. Regulation 3 lists multiple prescribed areas with different rules attached. Some are proximity zones to commercial tomato or grapevine growing (5 km and 5-10 km bands, regs 3(a)-(b)). Others are concentric radii around the Geraldton Post Office (19 km inner circle at 3(c) and the 19-50 km ring at 3(e)). Kununurra has an inner 10 km and an outer 10-50 km band relative to irrigated commercial crops (regs 3(f)-(g)). One specific urban parcel in Bassendean is set out by bearings and Swan locations (reg 3(h)). The presence of overlapping and differently parameterised zones means the applicable prohibition depends on precise location: the same activity may be banned, allowed only with Director approval, or permitted if the ester is Gazette‑notified as low volatile.

Low volatile esters approved by the Director and Gazette notification. A recurring mechanism across regs 4-6 and 5(1)(a) is the conditional allowance of "low volatile kind" esters approved by the Director and notified in the Government Gazette. This is an administrative delegation: the statutory text permits the Director to identify, by approval and Gazette notice, esters that are treated as compliant in certain zones. The Gazette notice is the publication mechanism that signals permitted substances to the regulated community.

The regulations allocate duties, permissions and enforcement powers in ways that identify several groups affected directly by the instrument.

Owners and occupiers of land where agricultural crops are grown commercially. The text repeatedly references places where tomatoes, grapevines or irrigated agricultural or horticultural crops "are being grown for commercial purposes" as the reference points for prescribed areas (regulation 3(a), (b), (f), (g)). Landowners and occupiers who grow those crops commercially will have immediate interest in the spatial protection afforded by the distances and will be parties whose activities and neighbours’ activities are regulated. They may also be the recipients of directions if esters are found stored on their land.

Sprayers and applicators. Persons who spray chemicals in the prescribed areas are directly regulated. Under regulation 4(1) a person must not spray an ester of an acid within certain prescribed areas, and must not spray a chemical containing an acid in those areas without prior written approval of the Director. The obligations fall on "a person", which in practice captures contractors, farm employees, custom sprayers and operators of spray equipment.

Owners and operators of storage facilities and persons who store esters. Regulation 5(1) prohibits storage of esters of acids within certain prescribed areas unless the ester is a Director-approved low volatile kind and Gazette-notified, or the person has prior written approval of the Director (subject to an exception for the Geraldton 19 km circle). Persons storing esters on their property need to check whether they are within the listed prescribed areas and whether their stored product is an approved low volatile type, or to secure approval.

Transporters and vehicle owners. Regulation 6 prohibits parking, standing, storing or moving a vehicle or equipment within certain prescribed areas if the vehicle carries an open container that contains or has contained an ester of an acid or if the vehicle is contaminated by an ester. This affects transport contractors, truck owners, farm machinery operators and equipment rental firms that might carry containers or contaminated machinery into the specified zones (reg 6).

Applicants for Director approvals. Anyone who seeks to spray a chemical containing an acid in the zones where prior written approval is required, or to store an ester in zones where prior written approval is required, must apply to the Director in writing and submit specified particulars (reg 7). Practically this will include farm operators, spray contractors, storage facility operators and, potentially, municipal authorities that own land within the zones.

The regulations impose discrete duties on persons carrying out spraying, storage, transport and movement activities within the prescribed areas and specify certain rights tied to the enforcement process and approval procedures.

Duties to refrain from specified activities unless authorised. Several prohibitions are absolute unless the regulation provides an exception. Under regulation 4(1) a person shall not, within the prescribed areas described in regulation 3(a), (c), (f) or (h), spray an ester of an acid; nor, unless he has prior written approval of the Director, spray a chemical containing an acid. The duty therefore is to refrain from spraying esters in those zones and from spraying listed-acid chemicals without prior written approval. Regulation 4(2) provides that in prescribed areas 3(b), (e) or (g) a person shall not spray an ester of an acid unless the ester is a low volatile kind approved by the Director and notified in the Government Gazette. These are duties of abstention unless the Director has approved the substance as low volatile and publicised that approval.

Duties around storage. Regulation 5(1) imposes a duty not to store an ester of an acid in prescribed areas 3(c), (e), (f) or (g) unless one of two exceptions applies: either the ester is a low volatile kind approved by the Director and Gazette-notified (reg 5(1)(a)), or, except within the Geraldton 19 km circle (reg 3(c)), the person has prior written approval of the Director (reg 5(1)(b)). The duty includes managing stockpiles and storage practices to ensure compliance with the approval status of the ester.

Duty to comply with directions from authorised persons. Regulation 5(2)(b) empowers an authorised person to direct the owner or occupier of the land on which the ester is stored, or an agent of that person, to remove the ester from the prescribed area within a time specified. Regulation 5(3A) makes compliance with such a direction mandatory, with a penalty of $2 000 for failure to comply. This creates a binding operational obligation: when served with a direction under reg 5(2)(b), the recipient must act within the timeframe specified.

Duties relating to vehicles and equipment. Regulation 6 creates the duty not to park, stand, store or move a vehicle or equipment within prescribed areas 3(c), (f) or (h) if the vehicle is carrying an open container that contains or has contained an ester of an acid, or if the vehicle is contaminated by an ester of an acid, unless the ester is a low volatile kind approved and Gazette-notified. Operators of vehicles, contractors and equipment owners must therefore ensure containers are closed and equipment is decontaminated, or confirm the ester is an approved low volatile variant.

The regulations adopt a centralised enforcement design using authorised enforcement agents, evidentiary sampling rules, seizure and direction powers, and a monetary penalty that is applied consistently across listed contraventions.

Monetary penalty. The instrument specifies a fine of $2 000 for breaches of the principal prohibitions and for failure to comply with a removal direction. The fine is repeated in the provisions that create the offences: regulation 4 provides a $2 000 penalty for prohibited spraying activities (reg 4(1) and 4(2)), regulation 5 sets a $2 000 penalty for unlawful storage (reg 5(1)) and for failure to comply with a direction given under reg 5(2)(b) (reg 5(3A)), and regulation 6 prescribes a $2 000 penalty for prohibited parking, standing, storing or moving of vehicles or equipment contaminated by esters (reg 6). The regulations do not specify incarceration, remedial orders, forfeiture of goods beyond seizure and removal, or a civil penalty regime; the prescribed sanction is a monetary fine.

Enforcement agents and powers. Enforcement is carried out by "an authorised person" with powers under regulation 5(2). When an authorised person finds an ester of an acid stored in contravention of the storage prohibition in regulation 5(1) the authorised person must either seize and remove the ester from the prescribed area concerned (reg 5(2)(a)), or direct the owner or occupier of the land on which the ester is stored, or an agent of that person, to remove the ester from the prescribed area within a time specified in the direction (reg 5(2)(b)). The text imposes duties on the authorised person to take samples and distribute them prior to exercising these powers (reg 5(3)-(4)). The sampling and notice requirements create an evidentiary baseline for enforcement actions and protect the affected person’s access to the analysis results.

Sampling and laboratory analysis. The authorised person must take two samples of the acid and mark each sample (reg 5(3)(a)). The authorised person must give a sample to the person to whom a direction may be given (reg 5(3)(b)(i)) and send a sample to a laboratory approved by the Director General of Agriculture for analysis (reg 5(3)(b)(ii)). Once the authorised person receives the written results of the analysis he must give or cause to be given a copy of those results to the person referred to in regulation 5(2)(b) (reg 5(4)). This procedure provides the regulated party with laboratory confirmation and creates an administrative record supporting any subsequent enforcement action, seizure or fine. The regulations specify that the laboratory must be approved by the Director General of Agriculture, which centralises control over the analytical provider.

The text of these regulations is limited to the rules they enact; it does, however, indicate connections and dependencies with the parent Act (the Agriculture and Related Resources Protection Act 1976), with administrative publication mechanisms (the Government Gazette), and with other administrative decisions (Director approvals and Director General approved laboratories). The regulations themselves do not purport to displace or modify other legal regimes beyond what the Act authorises, and they rely on external instruments and authorities for certain definitions and appointments.

Made under a parent Act. The document header identifies the regulations as made under the Agriculture and Related Resources Protection Act 1976. That establishes that these regulations are subordinate instruments authorised by that Act. The regulations refer to the Director as the Director General of Agriculture or an officer authorised by him in writing (regulation 2). Appointment powers, the parameters of "authorised person", processes for administrative review, and the legislative basis for seizure and inspection powers are likely governed by the parent Act or associated administrative instruments rather than within these regulations. The regulations do not restate those delegations or procedural safeguards; they assume the existence of the Director and authorised persons as created by the Act.

Government Gazette as a regulatory interface. The mechanism for identifying permissible "low volatile" esters is administrative: the Director approves and the approval must be notified in the Government Gazette (regulations 4(2), 5(1)(a), 6). That creates an interaction between administrative law (publication and rule‑making through Gazette notices) and the regulations. The Gazette notice is the instrument by which the permitted variants of esters are publicised and thereby becomes part of the compliance landscape for regulated parties. The regulations do not specify any criteria for the Director’s approval, which implies those criteria and any judicial review of the Director’s decisions will reference administrative law principles and possibly the parent Act.

Laboratory approvals. Regulation 5(3)(b)(ii) requires that a sample be sent to a laboratory approved by the Director General of Agriculture. The approval mechanism ties laboratory evidence and scientific analysis to administrative approval processes, and suggests that compliance and enforcement will depend on laboratories approved under separate administrative arrangements or guidelines. The regulations do not set testing standards or validation procedures; those will be determined either by the Director’s lab approval process or by external standards.

The instrument shows a defined amendment trajectory in the compilation table and in marginal notes to specific regulations. The compilation table lists the original regulations and the principal amendments that altered or inserted provisions. The amendment history in the text provides the dates and Gazette references where changes were made.

Original enactment. The Agriculture and Related Resources Protection (Spraying Restrictions) Regulations 1979 were gazetted on 4 May 1979 and commenced the same day (Compilation table). That is the originating instrument for the regime.

Subsequent amendments and insertions. The compilation table records amendment regulations in 1981, 1982, 1986 and 1989, and a reprint as at 2 November 2001. The regulations themselves carry marginal notes identifying later insertions and amendments:

• Regulation 2 (Interpretation) shows amendment annotations: Gazette 28 Nov 1986 p. 4415 and 1 Sep 1989 p. 3074. That indicates the definitions have been altered or clarified in those gazette notices.

• Regulation 3 (Prescribed areas) was amended and references Gazette 10 Apr 1981 p. 1260 and 1 Sep 1989 p. 3074. The 1981 amendment likely added or refined prescribed area descriptions; the 1989 amendment further modified the list.

• Regulation 4 (Spraying of acids) was inserted by Gazette 1 Sep 1989 p. 3074-5 and later amended by Gazette 17 Dec 2010 p. 6429. The marginal note records both the insertion and a later amendment that likely updated language or penalty structure.

• Regulation 5 (Storage of esters of acids) was inserted on 1 Sep 1989 p. 3075 and amended by Gazette 17 Dec 2010 p. 6429-30. The insertion created the storage regime and later tweaks were made in 2010.

• Regulation 6 (Restrictions as to vehicles and equipment) was inserted on 1 Sep 1989 p. 3075 and amended by Gazette 17 Dec 2010 p. 6430.

• Regulation 7 (Applications to Director) was inserted on 1 Sep 1989 p. 3075.

• The Schedule of chemicals was inserted on 1 Sep 1989 p. 3075.

2010 Repeals and Amendments. The compilation table records the Agriculture and Related Resources Protection (Repeals and Amendments) Regulations 2010 Pt.12, gazetted 17 Dec 2010 p. 6403-32, with commencement 18 Dec 2010 (see r. 2(b) and Gazette 17 Dec 2010 p. 6349). The marginal notes on regulations 4-6 and 5 indicate that amendments were made on 17 Dec 2010. Those amendments likely updated penalties, deleted certain subregulations (the text shows some subregulation numbers deleted), or otherwise modernised wording, but the instrument as provided includes only the current consolidated text and the marginal amendment references.

The regulations as compiled do not include any case citations, judicial decisions, or references to litigation. The text contains no named cases, no references to litigation outcomes, and no annotations indicating judicial interpretation. The instrument’s compilation and marginal notes list only statutory amendments and reprints.

Absence in the instrument. Because the regulations themselves do not record any litigation, the statutory text provides no guidance about judicial construction, evidentiary rulings, the interpretation of "low volatile", the scope of "authorised person", or the application of seizure powers in contested circumstances. The regulation does prescribe procedural steps for sampling and notification (reg 5(3)-(4)), and those procedures would form part of the factual record in any enforcement action, but the text provides no case law on how courts have treated compliance, the sufficiency of sampling, or the exercise of the Director’s discretion.

Implication for practitioners. The absence of litigation references in the document means that practitioners seeking precedent on contested questions arising under these regulations must search external legal databases, court records and tribunal decisions for cases where the regulations were in issue. Matters that are likely to generate litigation could include challenges to the Director’s decision to refuse a written approval, judicial review of the Director’s Gazette-based approvals of low volatile esters, disputes about whether a substance falls within the Schedule definition of an "acid", and enforcement challenges to seizure or direction actions by authorised persons. None of these issues are resolved in the instrument itself.

Evidentiary mechanics likely to appear in disputes. Regulation 5 establishes a sampling and laboratory approval framework intended to produce reliable evidence on which prosecutions or enforcement actions could be based. If litigation were to occur, the two-sample procedure, the identity-marking of samples and the requirement that one sample be analyzed by a laboratory approved by the Director General of Agriculture would be central evidentiary points. How courts treat the sufficiency of the sampling chain of custody, the independence and competence of approved laboratories, and the adequacy of notice to persons affected would be factual and legal questions adjudicated in external proceedings, none of which are recorded in the regulations.

Recommendation implicit in the silence. For lawyers and compliance professionals, the lack of litigation history in the compiled text means due diligence should include targeted case law research, administrative decisions and any appeals or tribunal rulings that have considered these regulations. The instrument itself can be used to identify the likely legal issues to search for: Director approvals, the definition and categorisation of listed chemicals and esters, seizure/direction challenges, and procedural compliance with the sampling and notice requirements.

The text of the regulations contains several practical traps and technical points where regulated parties or advisers can easily misread the instrument, miscalculate geographic applicability, or misunderstand the permitted exceptions. The following are concrete points extracted from the text that require attention.

Narrow statutory definition of "acid" in the Schedule. Regulation 2 defines acid as a chemical listed in the Schedule, and the Schedule lists seven chemicals by name. That means a chemical commonly described colloquially as an "acid" may not be an "acid" for the purposes of these regulations unless it is one of the items in the Schedule. Conversely, esters of acids are dealt with separately across multiple provisions. Misreading the Schedule can produce compliance errors. Practitioners should not assume the ordinary chemistry meaning of acid; the statutory list controls.

Difference between "acid" and "ester of an acid". The regulations treat esters of acids separately: prohibitions on spraying and storage often refer specifically to esters of acids, while the spraying prohibition in reg 4(1) also addresses "a chemical containing an acid". In practical terms, some actions are prohibited because they involve esters, even if the underlying acid is not being applied in its elemental or salt form. Operators must identify whether their product is an ester and whether that ester is subject to the "low volatile" approved list, not merely whether the active ingredient is named in the Schedule.

Location specificity and overlapping zones. The prescribed areas are highly specific and use different geometries: distance belts around commercial growing areas, concentric circles around the Geraldton Post Office (19 km and 50 km), Kununurra zones with an inner 10 km and an outer 10-50 km specification, and a precisely bounded Bassendean urban land parcel defined by street junctions and Swan location numbers (regulation 3). A single property could fall into more than one prescribed area (for example, a property within 5 km of a tomato operation and also within the Geraldton circle) and therefore could be subject to different prohibitions. Careful site-level spatial analysis is necessary; a rough estimate of proximity may lead to noncompliance.

The requirement for "commercial purposes" as the distance trigger. Several prescribed areas are measured from "a place where tomatoes or grapevines are being grown for commercial purposes" or "where irrigated agricultural or horticultural crops are being grown for commercial purposes" (regulation 3(a), (b), (f), (g)). The regulatory trigger is the commercial purpose qualifier. Determining whether a nearby crop operation is "commercial" is a fact-sensitive enquiry that may require evidence of sale, scale or revenue. That ambiguity can affect whether the zone applies.

Compliance under these regulations involves four practical steps: map the activity to the prescribed areas, categorise the chemical product correctly, secure necessary approvals and document them, and implement operational controls and sampling-ready procedures. Below is a stepwise compliance checklist grounded in the regulatory text.

1. Confirm geographic applicability. Start by determining whether the activity (spraying, storage, movement of vehicles or equipment) will occur within any of the prescribed areas listed in regulation 3. That requires:

• Identifying the nearest relevant commercial growing place and calculating distance bands of 0-5 km and 5-10 km for tomatoes and grapevines (reg 3(a)-(b)), and 0-10 km and 10-50 km bands for irrigated crops near Kununurra (reg 3(f)-(g)).

• Checking whether the property falls within the 19 km circle centred on the Geraldton Post Office (reg 3(c)) or within the 19-50 km ring around Geraldton (reg 3(e)).

• Verifying whether a property falls within the specifically bounded Bassendean area described in reg 3(h).

Use accurate mapping tools, cadastral data for Swan location numbers, and, where necessary, corroborating evidence that the referenced commercial operation is indeed "for commercial purposes" (reg 3).

2. Categorise the chemical product. Determine whether the product you intend to spray, store or transport is:

• One of the chemicals named in the Schedule (MCPA, MCPB, 2,4‑D, 2,4‑DB, 2,4,5‑T, Dicamba, Picloram) or a salt, amine or other form of those chemicals; or

• An ester of one of those acids.

The regulatory obligations differ depending on whether the product is an "acid" as defined in reg 2 and the Schedule or an "ester of an acid", and whether the ester is of a "low volatile kind" approved by the Director and notified in the Government Gazette (regs 2, 4, 5, 6).

3. Check the Government Gazette for approved "low volatile" esters. Where activity is conditionally permitted subject to the ester being a low volatile kind approved by the Director and notified in the Gazette, confirm whether the specific ester appears in the Government Gazette notice issued under the Director's approval (regs 4(2), 5(1)(a), 6). If the ester is Gazette‑notified and appears on the approved list, the product may be lawfully used, stored or moved in the relevant prescribed area as specified.