NSW Parliament has recently amended the Protection of the Environment Operations Act 1997 (POEO Act), becoming the first State to mandate food and garden organics waste recycling (FOGO Recycling). The changes proposed in the Protection of the Environment Legislation Amendment (FOGO Recycling) Act 2024 (FOGO Act) mandate the collection of source-separated FOGO waste for households and certain businesses, and the reporting of food donations by large supermarkets.

While clear benefits of FOGO recycling include a significant reduction in the volume of material going to landfill (it is estimated that NSW send 1.7 million tonnes of organic material to landfill each year) and the associated reduction methane generated from that waste, significant care will need to be taken to ensure that contamination is minimised so that quality products can be produced.

Obligations under the FOGO Act

The Act will impose obligations on multiple stakeholders:

1. Councils: Local councils will be required to implement both food and garden collection services for households that have a red-lid collection service by July 2030. Councils can choose whether to collect FOGO waste through separate bins or a combined bin, potentially selecting different options for different household types. The size of the bins must be sufficient to hold an average amount of FOGO waste depending on the type of household, organic and non-organic waste must be separated during transportation, and food organics waste must be collected weekly.

• Businesses: Businesses that fall within the definition of ‘relevant premises’ will be required to have a source-separated FOGO collection service in place. The mandate is set to occur in stages, with the largest generators of waste to begin rolling out FOGO from 1 July 2026, with start dates determined by the ‘residual waste bin capacity’ for relevant premises. All relevant premises will be required to have a FOGO collection service in place from 1 July 2030. Relevant premises include supermarkets, hospitality venues, schools and aged care homes. The obligation involves having sufficient food waste bins for collection of FOGO waste onsite, ensuring that food waste bins are collected weekly, and preventing cross contamination between FOGO and non-FOGO waste during transportation.

• Large Supermarkets: large supermarkets with a retail floor area of over 1,000 square metres will be required to record specific categories of food donations to charities from 1 July 2026. The intent behind this mandate is to avoid food waste and divert useable food to those who need it from landfill. The EPA has the power to require these records to be produced and to publish these records.

Residents will not have any legal obligation to sort their waste, nor will there be any legal consequences in failing to do so. Based on local councils that have already implemented FOGO recycling, residents may use council-provided kitchen caddies to store food scraps indoors before disposing of the waste into the larger FOGO bin.

Exemption powers

The Act contains exemption powers for the Minister and the EPA. These exemptions powers will be guided by the practicality and cost-efficiency of FOGO in certain areas. The exemption powers may be used, for example, in remote areas and multi-unit dwellings that have unique challenges in accessing collection services and having adequate infrastructure to support this initiative.

Penalties

Penalties will apply to Councils and businesses for failing to comply with their obligations under the Act. The maximum penalty will be $500,000, with an additional $50,000 a day for continuing offences. On the spot fines of up to $5,000 could also be issued.

Limitations

However, it is important to note that the Act does not mandate processing or recycling of FOGO, it only mandates collection and transportation. The FOGO waste must stay separated from other non-organic waste during transportation, but after transportation, there is no mandatory requirement that a certain percentage of material be recycled rather than landfilled. As a result, no offence will be committed if contaminated FOGO waste is disposed of in landfill or if waste is incorrectly processed and ends up in landfill.

Jennifer Hughes

Barisha Tashnin