Pesticides Act 1999

The Act casts a wide net. Primary duty-holders are “persons” who use a pesticide, a term defined in s 4(1) to include applying, spraying, spreading, dispersing, storing or preparing the product. This captures farmers, orchardists, viticulturists, turf managers, pest-control operators, forestry workers, public authorities undertaking weed control, and householders using domestic products.

Commercial operators are subject to additional layers. Any person carrying out “prescribed pesticide work” (s 5A) – essentially any supply or use for fee or reward, aerial application, or the conduct of a business or public-authority activity involving pesticides – must hold a licence (s 45). Employers or principals must ensure their agents are also licensed (s 45(2)). Holders of restricted pesticide authorisations (s 17) are confined to those the EPA considers competent (s 57(2)).

The EPA is the central administrator. Authorised officers appointed under the Protection of the Environment Operations Act 1997 exercise entry, investigation and notice powers (s 40). The EPA Board’s Chairperson appears in definitional provisions, and the CEO may issue evidentiary certificates (s 106). Public authorities that take clean-up action (s 20) or incur compliance costs can recover them from polluters.

Suppliers and growers are indirectly regulated. Purchasers of certain pesticides may need to show evidence of training (regulations under s 119(2)(f1)), and growers or suppliers of agricultural produce can be served with prohibited-residue notices (s 64(1)(a1)) or orders requiring destruction (s 65). Directors, related bodies corporate and persons involved in management face executive liability (s 112) and monetary-benefits recovery (s 112C, s 44A). The Act therefore affects not only end-users but the entire supply chain, insurers (licence applicants must hold prescribed insurance), trainers, analysts, and even pilots of aircraft fitted with aerial spraying equipment (s 43).

Occupiers of premises, owners of livestock or crops, and persons in possession of unregistered or restricted products are all within scope. Even persons outside NSW can be served with notices if their conduct affects the NSW environment (s 33). The only significant carve-outs are on-farm use that stays on the occupier’s own agricultural farm land (ss 7(2), 8(2), 10(2), 11(2)) and emergency actions by fire brigades and accredited rescue units (s 116).

Duty-holders must comply with the approved label (s 15) or obtain a permit. Before each use of a registered pesticide the user must either read the label or have it explained (s 14(1)). Permits must likewise be read (s 14(2)). Restricted pesticides may be possessed or used only under a restricted pesticide authorisation or pesticide control order (s 17). Unregistered pesticides may be possessed or used only under permit and in accordance with its conditions (ss 12–13), although reserved chemical products are exempt if used in accordance with the Reserved Schedule (ss 12(2), 13(2)).

Licensees must ensure that only licensed persons carry out prescribed pesticide work (s 45) and must comply with all licence conditions (s 59). They must remain fit and proper (s 5B) and maintain prescribed insurance. Record-keeping, training, notification and sign-posting obligations can be imposed by licence conditions, pesticide control orders or regulations.

The EPA’s key rights include issuing clean-up notices (s 19), prevention notices (s 24), defect notices for equipment (s 42), and directions for destruction of dangerous pesticides (s 41). It may recover costs (s 28), register compliance cost notices as charges on land (s 30), and apply for restraining orders to preserve assets pending monetary orders (ss 82–91). On conviction the EPA may seek restoration orders, cost orders, monetary benefits orders (s 98), and a wide range of additional orders including publication orders, environmental audits, training courses and restorative justice activities (s 99).

Rights of affected persons include appeal rights to the Land and Environment Court against prevention notices, prohibited-residue notices, pesticide control orders, licence refusals, suspensions, revocations and conditions (ss 26, 62, 114). Persons who comply with a clean-up notice but were not the causer may recover costs from the actual polluter (s 19(3)). Occupiers may raise “on-farm” or residential-premises defences (ss 7(2), 8(2), 10(2), 11(2)). Due-diligence defences are available for many strict-liability offences (ss 10(3), 11(3), 11A(2)). The Act also preserves common-law rights to recover damages for pesticide drift or contamination.

Penalties are graduated. Wilful or negligent offences under ss 7–9 carry maxima of $2 million for corporations and $500,000 for individuals. Strict-liability offences under ss 10–11A, 12–15, 17 and 39(4) attract $120,000/$60,000. Lower-level offences (label tampering, defective equipment) are $20,000/$10,000. Continuing offences under clean-up and prevention notices add daily penalties of $60,000/$30,000 for corporations and $30,000/$15,000 for individuals. Executive-liability offences expose directors and managers to the same maximums as individuals (s 112). Accessory liability under s 112A mirrors the corporate offence penalty.

Enforcement tools are extensive. Penalty notices (s 76) allow on-the-spot fines up to $15,000 for corporations and $7,500 for individuals. The EPA alone may institute proceedings (s 73). Time limits are three years for prescribed offences (including Division 1 Part 2 offences and s 45 licensing breaches) and 12 months otherwise, with a “evidence first came to attention” extension (s 72).

On conviction the court may order restoration, cost recovery, monetary benefits disgorgement (s 98), publication of the offence, environmental audits, training, and financial assurances (s 99). Forfeiture of pesticides or contaminated produce is available (s 100). Restraining orders can freeze assets (ss 82–91) and compliance cost notices can become charges on land (s 31). Undertakings can be accepted and enforced (s 110). The EPA may also issue defect notices (s 42), destruction directions (s 41) and register notices as charges.

The Act is expressly designed to be read with the Agvet Code (preliminary note to Part 1 and s 4(2)). Definitions of “pesticide”, “approved label”, “permit”, “restricted chemical product”, “animal”, “plant”, “pest”, “substance” and “instruction” are all imported from the Code. Permits issued under the Agvet Code can override NSW prohibitions if the relevant sections are declared eligible laws (s 6).

The statute is also interwoven with the Protection of the Environment Operations Act 1997 (POEO Act). Authorised officers are appointed under POEO Part 7.2 (s 4), investigation powers are supplied by POEO Chapter 7 (s 40), and many offences are declared executive liability offences attracting director liability under the POEO model (s 112). Clean-up and prevention notices mirror POEO mechanisms. The Protection of the Environment Administration Act 1991 constitutes the EPA and supplies the “ecologically sustainable development” principle referenced in s 3(a).

Interaction with the Biodiversity Conservation Act 2016 occurs through s 9, which creates a specific offence of materially harming threatened or protected animals. The Companion Animals Act 1998 supplies the definition used in the new s 11A offence. Corporations law concepts (related body corporate, director, insolvency) are imported via the Corporations Act 2001 (Cth) for the fit-and-proper test (s 5B) and monetary-benefits recovery (s 112C). The Land and Environment Court Act 1979 supplies the appeal jurisdiction (ss 62, 114) and Class 4 enforcement (ss 95(2), 97(2), 112C(6)).

The Act sits alongside the Biosecurity Act 2015 (which deals with pest management more broadly) and various primary-production statutes. Regulations under the Act can recognise interstate licences (s 119(2)(l)–(m)). Finally, the Fines Act 1996 governs penalty notices (s 76) and the Crimes (Sentencing Procedure) Act 1999 s 10 orders are treated as convictions for the purpose of triggering court orders (s 92(2)(b)).

The most significant overhaul occurred via the Pesticides Amendment Act 2015, which replaced the former certificate-of-competency regime with a full licensing system for prescribed pesticide work (new Part 6 Division 1). The change was driven by recognition that self-employed operators and public authorities were evading training and insurance requirements. A new s 5B “fit and proper person” test was inserted, drawing on 19 criteria including criminal history, insolvency and compliance records, to mirror reforms in other environmental licensing regimes.

The Environment Legislation Amendment Act 2022 added s 44A (receiving monetary benefits), expanded court orders under s 99 to include restorative justice activities, and amended ss 93, 97 and 99 to apply to proceedings not finally determined at commencement. These changes responded to concerns that corporations could strip assets or distribute profits before sentencing, leaving insufficient funds for remediation.

The Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024 made further adjustments: it increased certain penalty levels, substituted new evidentiary provisions (ss 107 and 107A allowing approved aerial and satellite images), amended jurisdictional limits for Local Court proceedings (s 71), and inserted s 28(1A) to allow recovery of pre-notice costs. It also refined the monetary-benefits estimation protocol (ss 98(2A)–(2B), 112C(5A)). These amendments were part of a broader package to modernise evidence gathering, close cost-recovery gaps, and increase deterrence in line with contemporary environmental enforcement policy.

Earlier minor amendments clarified “on-farm” exceptions (2012), aligned definitions with the Biodiversity Conservation Act 2016 (2018), and updated cross-references to the Agricultural and Veterinary Chemicals (New South Wales) Act 1994.

Because many offences are strict liability and carry substantial penalties, litigation has clustered around three areas. First, the scope of the “on-farm” exception (ss 7(2), 8(2), 10(2), 11(2)) has been tested where spray drift affects neighbouring agricultural land that happens to be owned by the same corporate group; courts have emphasised the requirement that harm occur only on the land in respect of which the pesticide was used.

Second, the meaning of “material harm” in s 9 has generated debate. The statutory factors (number, type and local population of animals) are non-exhaustive; prosecutors have successfully argued that even small numbers of endangered fauna can constitute material harm when the local population is already stressed. No reported appellate decisions have overturned this approach.

Third, challenges to the validity of pesticide control orders and prevention notices have focused on whether the EPA has formed the requisite “reasonable suspicion” and whether the notice is sufficiently certain. The Land and Environment Court has generally upheld notices provided the EPA can point to evidence of pesticide pollution or environmentally unsatisfactory use (s 23). Appeals under s 114 are heard de novo but the Court has been reluctant to interfere with technical risk judgments.

Controversies have also arisen over aerial spraying. Section 43’s requirement that aircraft be CASA-approved for agricultural operations has been criticised by smaller operators as adding unnecessary cost. The 2015 licensing reforms were opposed by some rural groups who argued that the new training and insurance burdens would drive up costs for farmers. Conversely, environmental groups have criticised the continuing availability of the on-farm exception and the non-mandatory status of codes of practice (s 69(4)) as leaving neighbours and waterways under-protected. The introduction of monetary-benefits orders and related-person recovery (ss 44A, 112C) has been welcomed by regulators but has yet to be tested at appellate level; questions remain about the evidentiary threshold for “reasonable estimate” calculations under the prescribed protocol.

Most practitioners miss that the mixing of a pesticide with another substance does not remove the obligation to read and follow the original approved label (ss 5(2), 14(3), 15(2), 16(2)). The Act expressly provides that the pesticide “continues to be regarded as a pesticide” and the label obligations remain.

Another trap is the interaction between s 15(3)(c) and pesticide control orders. A user may apply a lower concentration than the label specifies provided the label does not prohibit it and no control order forbids the lower rate. Many operators assume a lower rate is always safer; a control order can reverse that assumption.

Section 5B’s fit-and-proper test reaches back 10 years for fraud or dishonesty convictions and 3 years for insolvency events, and expressly includes former directors and related bodies corporate. A company that has restructured to shed a non-compliant director may still fail the test if the EPA can show the former director “is or has been” involved.

The “on-farm” defence is narrower than many realise. It applies only where the injury, damage or harm occurs only on the agricultural farm land (or residential premises) in respect of which the pesticide was used. If the same corporate entity owns adjacent blocks and harm crosses the internal boundary, the defence can be lost. Courts have also held that “employed or engaged by the occupier” does not extend to independent contractors engaged by a share-farmer.

Clean-up and prevention notices can be given orally in “exceptional” circumstances (s 21) and remain effective for 72 hours even without written confirmation. Recipients sometimes ignore them believing they are not “official”; the Act deems an oral direction to be a clean-up notice.

Evidentiary certificates under s 106 are prima facie evidence of a wide range of matters; the onus is on the defendant to rebut them. The new s 107A approved images are presumed orthorectified and require no proof of boundary accuracy unless the defendant leads contrary evidence – a powerful tool in spray-drift prosecutions.

Finally, s 118A provides that notices, orders and licence conditions continue in force until complied with, even after the stated expiry date. Many operators assume that once a deadline passes the obligation evaporates; the section expressly prevents that outcome.

Compliance begins with a thorough understanding of the product label and any applicable permit or pesticide control order. Before every application the user must either read the label or have it explained by a competent person (s 14). A written record of that step is prudent.

Anyone engaged in prescribed pesticide work must hold a current licence (s 45). The application requires evidence of qualifications, insurance and technical competence (s 47). Once licensed, all conditions (including record-keeping, notification to neighbours, weather restrictions and buffer zones) must be strictly observed. Directors and managers should maintain a compliance matrix that maps each licence condition to responsible officers and audit frequency.

For restricted pesticides a separate authorisation is mandatory (s 17). The EPA will assess competence; applicants should retain training records, spray logs and equipment calibration certificates.

All equipment must be maintained so that it cannot reasonably be expected to cause a breach (s 42). Aerial spraying equipment must be attached only to CASA-approved aircraft (s 43). Defect notices must not be removed except by authorised officers.

Businesses should implement a spray-drift management plan that includes weather monitoring, buffer zones, droplet-size selection and notification to adjacent landowners. Records must be kept for the period required by the regulations or licence conditions; these records are the first line of defence in any investigation.

If a spill or escape occurs, immediate containment and notification to the EPA is required. A clean-up notice may follow; compliance does not prevent cost recovery from the actual causer (s 19(3)). Directors should ensure that systems are in place to demonstrate due diligence (s 10(3), s 112) – regular training, equipment maintenance logs, independent audits and a corporate culture that treats label compliance as non-negotiable.

Growers and suppliers of agricultural produce must be alert to prohibited-residue notices (s 64). If served, movement of the produce is frozen until analysis or destruction is authorised. Testing should be arranged through NATA-accredited laboratories and results reported promptly.

Organisations should maintain a register of all pesticide control orders, codes of practice and relevant regulations. Because orders can incorporate external standards by reference (s 38(5A)), the register must be kept current. Annual refresher training for all operators is advisable even if not mandated by the licence.

Finally, keep the EPA’s enforcement guidelines and the current version of the Act and regulations readily accessible. In the event of an incident, legal advice should be obtained before providing any statement beyond the statutory obligation to answer questions from authorised officers (POEO Chapter 7). A proactive compliance culture, combined with meticulous record-keeping and prompt engagement with regulators, remains the most effective way to avoid the severe penalties and reputational damage that flow from breach of this legislation.