Environment Law in the Northern Territory

Introduction to Regulation of Pesticides and Fertilisers

Pesticides and fertilisers are usually sprayed on to weeds or crops and can be a source of chemical pollution. Spraying may be done from the ground or from the air (called aerial spraying).

Commonwealth laws regulate agricultural and veterinary products (including pesticides) up to the point of retail sale under the:

Northern Territory laws regulate agricultural and veterinary products (including pesticides) after the point of retail sale. Northern Territory laws also regulate fertilisers. The laws which control the possession, storage, use and application of chemical products and also the manufacture, sale and use of fertilisers are the:

  • Agricultural and Veterinary Chemicals (Control of Use) Act and
  • Agricultural and Veterinary Chemicals (Control of Use) Regulations

The Northern Territory Poisons and Dangerous Drugs Act and Poisons and Dangerous Drugs Regulations also set out a licensing regime for possessing, using and supplying pesticides.

What are pesticides?

Pesticides are substances or organisms used to prevent or kill pests, such as insects or weeds. There are many different types of pesticides, including herbicides, insecticides and fungicides, amongst others.

Under the Poisons and Dangerous Drugs Act  and Poisons and Dangerous Drugs Regulations a pesticide means a substance or organism manufactured or supplied for:

  • killing, destroying, attracting, repelling, stupefying, inhibiting the feeding of, directly or indirectly controlling the activity or preventing the infestation or attacks of, insects, pests, vermin or other troublesome or destructive forms of animal life;
  • killing, destroying or deleteriously affecting the growth or development of any form of plant life or seeds, fruit, foliage or other part of any form of plant life; or
  • killing, destroying or preventing the attacks of fungi and other parasitic plants, nematodes, bacteria and viruses that affect or which may affect any form of plant life.

Pesticides are a type of agricultural chemical product for the purposes of the Agricultural and Veterinary Chemicals (Control of Use) Act. An agricultural chemical product is a substance or mixture of substances that:

  • destroy, stupefy, repel, inhibit the feeding of, or prevent infestation by or attacks of, any pest of any plant, place or thing;
  • destroy a plant;
  • modify the physiology of a plant or pest so as to alter its natural development, productivity, quality or reproductive capacity;
  • modify the effect of another agricultural chemical product; or
  • attract a pest to destroy it.

What are fertilisers?

Fertilisers are chemical substances used to provide nutrients to plants. Under the Agricultural and Veterinary Chemicals (Control of Use) Act a fertiliser is a substance that is manufactured, represented, supplied or used as a means of directly or indirectly:

  • (a) fertilising the soil;
  • (b) supplying nutrients to plants; or
  • (c) conditioning the soil by altering the chemical, physical or biological composition of the soil.

Environmental hazards linked to the use of fertilisers include:

  • groundwater pollution caused by nitrates in fertiliser
  • eutrophication – the enrichment of water by the addition of nutrients, which can cause algal blooms; and
  • soil acidification.

Who regulates pesticides and fertilisers?

The Australian Pesticides and Veterinary Medicines Authority (called APVMA) is the Commonwealth regulator responsible for administering the laws on the import, manufacture, registration, packaging, labeling, distribution and retail sale of pesticides in Australia.

In the Northern Territory, the Department of Primary Industry and Fisheries is the regulator responsible for administering Northern Territory laws on agricultural chemicals and fertilisers.

What pesticide and chemicals laws protect the environment?

The Agricultural and Veterinary Chemicals (Control of Use) Act imposes a number of obligations on people who use chemical products and fertilisers. Chemical products include agricultural chemicals such as pesticides and veterinary chemicals7.

A person who uses a chemical product or fertiliser must take reasonable and practicable measures to make sure that they do not harm the environment or the health of the general public or an animal.  Harm to the environment includes harm to land, air, water, organisms and ecosystems. Environment includes the well being of humans, the amenity values of an area, structures made or modified by humans, and economic, cultural and social conditions.  The penalty for breach of the general duty to avoid harm is a fine of 500 penalty units for a person or 2,500 penalty units for a corporation.  For more information on penalties, see Fact Sheet on Penalties.

A person must use an agricultural chemical (including a pesticide) in compliance with the instructions on the label.12 The only exceptions13 for a person to use chemicals in a different way to the label instructions are when a person uses the chemicals:

  • at a concentration that is lower than the concentration specified in the instructions;
  • at a rate of application that is lower than the rate of application specified in the instructions;
  • less frequently than is specified in the instructions;
  • to control a pest not specified in the instructions;
  • by mixing the product with another substance; or
  • by applying the product using a method not specified in the instructions.

The penalty for using pesticides contrary to the label instructions is 200 penalty points for a person, or 1,000 penalty points for a corporation.

Restricted and Schedule 7 chemicals

The Australian Pesticides and Veterinary Medicines Authority can declare certain chemical products to be “restricted chemical products” if special training or other requirements are needed to be able to handle or use the chemical.  Restricted chemical products can only be used by authorised people. The Commonwealth may also designate certain chemicals as Schedule 7 chemicals under the Standard for the Uniform Scheduling of Drugs and Poisons. Schedule 7 chemicals are substances with a high potential for causing harm at low exposure and which require special precautions in manufacture handling or use.

People may only possess restricted chemical products in the Northern Territory if they are authorised by the Chemicals Coordinator of the Department of Primary Industry and Fisheries or have a permit issued by the Australian Pesticides and Veterinary Medicines Authority to use the chemical product. A person must only use a restricted chemical in accordance with the label instructions.  People may only possess Schedule 7 chemicals if they are authorised by the Chemicals Coordinator or authorised to use the chemicals.

Spraying of agricultural chemicals

Businesses that conduct ground spraying or aerial spraying of agricultural chemicals (except those licensed under the Poisons and Dangerous Drugs Actmust be licensed. In addition, applicators used for ground spraying must be licensed20 and pilots that carry out aerial spraying must be licensed. Licences are issued by the Chemicals Coordinator of the Department of Primary Industry and Fisheries. Licences are valid for up to five years and may be renewed. There is no opportunity provided by the Agricultural and Veterinary Chemicals (Control of Use) Act for members of the public to comment or object to the issue of spraying licences.

A licensed ground or aerial spraying business must keep records of each occasion that spraying is carried out. These records must be kept for two years.  The information required in the records is listed in Regulation 11 of the Agricultural and Veterinary Chemicals (Control of Use) Regulations.

It is an offence under the Agricultural and Veterinary Chemicals (Control of Use) Act to carry out spraying which injuriously affects plants or livestock with a commercial value outside the target spraying area.24 A person who breaches this law is liable to a penalty fine of 200 penalty units. A corporation who breaches this law is liable to a penalty fine of 1,000 penalty units.

There is no legal requirement under Northern Territory legislation to notify neighbours before spraying takes place.

Chemical control areas

Under the Agricultural and Veterinary Chemicals (Control of Use) Act the Minister for Primary Industry and Fisheries can declare Chemical Control Areas. These are areas in which certain chemical products may be prohibited or imposed. Before declaring a chemical control area, the Minister must publish notice of the proposal in a newspaper and provide a copy of the proposal to owners and occupiers of land in or adjacent to the proposed Chemical Control Area.  Members of the public may submit comments on the proposals within the time stated on the notice.

Licensing of pest control operators

The Poisons and Dangerous Drugs Act and Poisons and Dangerous Drugs Regulations require domestic and commercial pesticide users to be licensed as pest control operators.  Licences are regulated by the Northern Territory Department of Health. The Department of Health may authorise domestic and commercial pest control operators to use certain Schedule 7 chemical products by issuing a pest control licence.

Pest control operator licences are valid for 12 months and may be renewed for a further 12 month period on application to the Chief Health Officer. There is no process provided by the Poisons and Dangerous Drugs Act for the public to comment or object to the issue of a pest control operator licence.

Enforcement

The Northern Territory Department of Primary Industry and Fisheries is responsible for regulating the Agricultural and Veterinary Chemicals (Control of Use) Act. Breaches of the Agricultural and Veterinary Chemicals (Control of Use) Act are offences punishable by fines set by reference to penalty units.  For more information, read our Fact Sheet on Penalties.

The Department may prosecute a breach of the Act or may issue an infringement notice.31 An infringement notice is a penalty notice issued for a reduced fine to that which would apply under the Act.

The Agricultural and Veterinary Chemicals (Control of Use) Act does not limit who may bring a prosecution for a breach of the Act.

If the court finds a person guilty of an offence against the Agricultural and Veterinary Chemicals (Control of Use) Act, the court may impose penalties additional to the penalty for the offence. The court may do impose additional penalties if the offence resulted in harm to the environment or injury, loss or damage to another person or to another person’s property. The additional penalties that the court may order are that the person must:

  • pay to the Territory the reasonable expenses of taking action to remedy or mitigate the harm to the environment or to prevent further harm to the environment; or
  • pay to another person compensation for any injury, loss or damage to the other person, the other person’s property or for costs in taking action to mitigate or prevent the injury, loss or damage.

The court may also make any other orders necessary or convenient for the enforcement of any order made.

Under the Agricultural and Veterinary Chemicals (Control of Use) Actif a corporation commits an offence the directors and officers of the body corporate involved in the management of the body corporate are also liable for the offence. A director or officer may be prosecuted and found guilty of an offence whether or not the body corporate has been prosecuted for or found guilty of the offence.

The Northern Territory Department of Health is responsible for regulating the Poisons and Dangerous Drugs Act. The Act does not limit who may bring prosecutions for breaches of the Act.

What the community can do

There are several options to take action if you are concerned about environmental harm from agricultural pesticides or fertilisers. These options are:

  • Complain to the Chemicals Coordinator of the Department of Primary Industry and Fisheries – If you wish to complain about the use by another person of a chemical product or fertiliser (for example you suspect non-compliance with the law) you can make a complaint to the Chemicals Coordinator. As soon as possible after receiving a complaint, the Chemicals Coordinator must acknowledge in writing receipt of the complaint and advise the complainant of the steps being taken to investigate the complaint and when the investigation is likely to be completed.36 The Chemicals Coordinator must investigate the complaint. As soon as practicable after receiving a report of the results of an investigation, the Chemicals Coordinator must advise you of the outcome of the investigation. The Department of Resources may take enforcement action in the event of a breach of the Agricultural and Veterinary Chemicals (Control of Use) Act.
  • Report spray drift or activities that might cause pollution or harm to the environment to the Pollution Hotline run by the Northern Territory Department of Natural Resources, Environment, The Arts and Sport.
  • Report a complaint to the Department of Primary Industry and Fisheries if agricultural produce or livestock with a commercial value has been affected by spraying.

If you have suffered personal injury as a result of pesticides or other agricultural chemicals, you should seek immediate legal advice from a personal injury lawyer.

If you have suffered damage to your property you may have legal options under the common law of private nuisance, negligence or trespass. For more information, read our Fact sheet on Nuisance, negligence and trespass.