“Spray drift” or “pesticide 1 drift” 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.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:

  • possession or use of an unregistered pesticide
  • 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

Click here to view table.

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.