"Spray drift" or "pesticide1drift" is a term used to describe the movement of agricultural chemicals used for the protection of crops from unwanted weeds, pests and diseases through the air to non-target crops, stock and land. The increased use of pesticides in the agricultural sector is a commercial and social reality.
Herbicide-using industries are also intensifying and moving closer to residential and water catchment areas. Add to this an increasing demand for organic production as well as a growing world population, and it is unsurprising that the conflicts involving pesticide applications are becoming increasingly more common.2
This article examines the legal mechanisms addressing spray drift in Australia in all jurisdictions.

Safe use requirements under federal law

In Australia, there is a division of responsibilities for regulating pesticides between the Commonwealth and the States and Territory governments.
The Australian Pesticides and Veterinary Medicines Authority (APVMA) is the federal regulator of pesticides.3 The APVMA is responsible for the assessment and registration of pesticide products and for the provision of label instructions for the 'safe' use of those products.
Once a pesticide product has been purchased, the control of use of that product becomes the responsibility of the relevant State or Territory government agency.

State liability laws

Compliance with APVMA regulations is achieved in each State and Territory via the inclusion of offence provisions for actions such as:

  1. possession or use of an unregistered pesticide
  2. using a pesticide contrary to an approved label.

While most State laws contain such provisions, they otherwise vary greatly in their approach to the regulation of spray drift, as evident from the following table.4

(Tas)

Section 30 provides that a person must not carry out or cause to be carried out agricultural spraying which adversely affects any person, plants, stock, agricultural produce, water bodies, groundwater or soil, on premises not owned or occupied by the person carrying out the agricultural spraying. A fine of up to 200 penalty units applies.

Jurisdiction Primary legislation Spray drift offence provisions
Queensland Environmental Protection Act (Qld) Unlike the other States, there is no specific Act containing offence provisions for spray drift in Queensland. Local councils have investigative powers and powers to enforce controls and impose fines where spray drift problems occur.
New South Wales Pesticides Act 1999 (NSW)

There is no specific provision in this Act relating to spray drift.

General offences relating to the control of pesticides are contained in Division 3. These include possession or use of an unregistered pesticide (sections 13 and 14) and using pesticides contrary to an approved label (section 15). Fines of up to $120,000 for a corporation and $60,000 for an individual apply under this Division.
Northern Territory Agricultural and Veterinary Chemicals (Control of Use) Act (NT)

Section 13 outlines a general duty to ensure harm does not result from use of chemical products, fertilisers or stockfoods.

Section 56 provides that a person must not carry out agricultural chemical spraying that injuriously affects plants or stock outside the target area, or land outside the target area that could reasonably be expected to result in a concentration of the substance exceeding the prescribed standard. A maximum penalty of 1,000 penalty units for a corporation and 200 penalty units for an individual applies. It is a defence if the plants or stock have no commercial value.

Aerial spraying businesses and pilots are also required to be licensed under section 60 and 61.
South Australia Agricultural and Veterinary Products (Control of Use) Act 2002 (SA)

Section 5 outlines a general duty to take all reasonable and practicable measures to prevent or minimise actual or potential contamination of land, animals or plants outside the target area, taking into account the economic or ecological value of the animals or plants and current or proposed land uses.

The general duty also applies to actual or potential harm to human health and to the environment, whether or not this occurs within the target area.

Failure to comply with the general duty does not of itself constitute an office, but may be enforced by the issuing of a compliance order.
Tasmania Agricultural and Veterinary Chemicals (Control of Use) Act 1995 (Tas) Section 30 provides that a person must not carry out or cause to be carried out agricultural spraying which adversely affects any person, plants, stock, agricultural produce, water bodies, groundwater or soil, on premises not owned or occupied by the person carrying out the agricultural spraying. A fine of up to 200 penalty units applies.
Victoria Agricultural and Veterinary Chemicals (Control of Use) Act 1992

Sections 40 and 41 provide that a person must not carry out agricultural spraying which "injuriously affects" or "contaminates" any plants or stock outside the target area.

The penalty for contravention of section 40 is 400 penalty units for a corporation and 200 penalty units for an individual. The penalty under section 41 is 200 penalty units for a corporation and 100 penalty units for an individual.

There are a number of exemptions to these provisions. For example, it is a defence to section 40 to prove that the plants or stock have no economic value, and it is a defence to section 41 if the agricultural produce affected is not to be used as stock food. The definition of "contaminated produce" under the Act is restricted to produce which is offered for sale that has a residue level above the maximum residue limit set by Food Standards Australia New Zealand or the APVMA.
Western Australia Aerial Spraying Control Act 1966 (WA)

Under section 10, owners of aircraft that have been modified to carry out aerial spraying are required to have insurance indemnifying the owner for damage caused by spray drift. A fine of $2,000 applies for contravention of this section.

Section 14 permits the Director of Agriculture to enter land and inspect premises which have reportedly been affected by aerial spraying or may be a possible source of spray drift.

A person who fails to comply with any provision of the Act is liable to a penalty of $2,000.

Common law remedies

In addition to statutory offence provisions, private landowners and others affected by the adverse effects of spray drift have the option of pursuing common law remedies, such as nuisance and/or negligence. Such claims are, however, notoriously difficult and expensive to establish. This is because the burden of proof lies on the applicant to demonstrate, on the balance of probabilities, that a spray drift event was the cause of damage. In order to establish that the pesticides in question drifted a specific distance and in sufficient quantities, vast amounts of evidence in the form of tests, expert reports, scientific modelling, photographs and oral evidence will be required. In the recent decision of NM Rural Enterprises Pty Ltd v Rimanui Farms Ltd,5 Harrison J described the issues in the case as a "forensic maze".6 The applicant was unable to establish its case despite having the benefit of, "submissions, thousands of pages of material in an agreed tender bundle, nearly two hundred exhibits, more than fifty days of hearing evidence and addresses and more than two and a half thousand pages of transcript..."7

Conclusion

The legal hurdles for a successful prosecution or private landowner claim are high and there have been few successful actions relating to spray drift in Australian courts.8 Issues regarding spray drift are becoming increasingly more common as a result of growing populations, coupled with a rising demand for organic production and the intensification of pesticide-using industries. State and federal laws (and industry) will no doubt be required to deal with future challenges in this area.

Footnotes

1The term "pesticide" includes both insecticides and herbicides.

2T Centner, "Securing recompense under nuisance law for crop damages from pesticide application," 432 (2012) Science of the Total Environment 78 at 78.

3Prior to the establishment of the APVMA in 1993, each State and Territory government had its own system of registration.

4It is noted that this table lists the primary laws relating to spray drift only. Regulations, policies and guidelines made under these Acts are also applicable in each State. In addition, spray drift activities that pollute the environment may attract penalties under applicable environmental protection laws.

5[2013] NSWSC 309.

6Ibid at [1014].

7Ibid at [1031].

8See National Toxics Network, The Threat of Pesticide Spray Drift: Community Information Kit (2009, National Toxics Network Inc), p 14 for further discussion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.