Posted on March 6, 2025 by Anna Sinclair and James King 14

The new ‘FOGO’ recycling scheme for NSW

The Protection of the Environment Legislation Amendment (FOGO Recycling) Act 2025 (FOGO Act) has been passed by Parliament. This Act, which amends the Protection of the Environment Operations Act 1997 (POEO Act), mandates the collection of food organics and garden organics (FOGO) waste from households and businesses, and the reporting of supermarket food donations.

FOGO waste and the case for change

As part of the NSW Government’s Waste and Sustainable Materials Strategy 2041, which outlines the State’s transition to a circular economy over the next 20 years, the NSW Government’s target is to halve the amount of organic waste sent to landfill by 2030.

Households and businesses in Australia generate around 1.7 million tonnes of FOGO waste annually. It is estimated that up to 45% of household waste placed in red-lid rubbish bins is food waste, which ends up in landfill. Each tonne of organic waste diverted from landfill avoids about 1.5 tonnes of carbon dioxide equivalent emissions.

Additionally, Greater Sydney is projected to run out of landfill capacity by 2030. A large portion of that space is currently being taken up by FOGO waste.

The FOGO Act inserts a new Chapter 5A in the POEO Act, and mandates the collection and transportation of FOGO waste across NSW by imposing obligations on local councils and businesses.

What does the FOGO Act require?

Responsibilities of Councils

By 1 July 2030, all councils in New South Wales will be required to provide household FOGO collection for all residential accommodation (e.g. dwelling houses, attached dwellings, residential flat buildings, boarding houses, seniors housing etc).

The requirement includes the provision of either split food organics/garden organics bins or a single combined FOGO bin to each household in the council’s area. Councils must also ensure that FOGO waste is not mixed with non-organic waste during transportation.

The maximum penalties for non-compliance by councils with the relevant requirements are $500,000 with an additional $50,000 penalty each day for some continuing offences. On-the-spot fines can be issued up to an amount of $5,000 with increased fines for further offences.

Responsibilities of Businesses

The FOGO Act also mandates the collection and transportation of food organics waste from “relevant premises“, which includes a range of businesses and institutions, such as:

• supermarkets;
• centre-based child care facilities and educational establishments;
• correctional complexes;
• food and drink premises;
• hospitals;
• hotels, motels and registered clubs; and
• privately collected waste at residential accommodation and seniors housing.

The FOGO Act will apply to businesses and institutions in stages starting from 1 July 2026, followed by 1 July 2028, with the final stage on 1 July 2030.

An occupier of relevant premises must ensure that sufficient food organics/organics collection bins are provided, are collected weekly, and that food organics waste is not mixed with other waste during transportation.

The maximum penalty for not complying with the business  mandates is $500,000 for companies and $250,000 for individuals, with an additional $50,000 or $25,000 penalty respectively each day for continuing offences.

On-the-spot fines of up to $5,000 can also be issued, with higher fines for second offences.

Large Supermarket donation requirements

The FOGO Act also sets new requirements for large supermarkets (those with at least 1,000m2 of gross floor area) to record food donations. The intent of the requirement is to encourage the donation of usable food, avoid food waste and bring greater transparency to food donations.

Large supermarkets must now keep records of food donations to organisations made by the supermarket each calendar month. The records must be kept in manner approved by the Environment Protection Authority (EPA).

It is an offence to not keep records or to not do so in the correct way with maximum penalties of $125,000 for an individual and $250,000 for a company.

Exemptions

There is a power under the FOGO Act to provide exemptions by regulation at a later date in respect of certain Councils, businesses and institutional premises.

There is also a power granted to the EPA which will allow it to grant exemptions from any of the requirements under the FOGO Act.

It is currently unclear how these exemptions will apply but it is understood that they are intended to add levels of flexibility in achieving the outcomes of the legislation.

Key Takeaways

There are a number of new responsibilities for councils, businesses and institutions in relation to FOGO recycling.

Given the substantial penalties which can be applied for non-compliances, councils and relevant businesses and organisations should review and consider their new obligations under this legislation.

A number of the offences attract executive liability under s169A of the POEO Act, which means that a director, or person involved in the management of the corporation (or council), and who is in a position to influence the conduct of the corporation in relation to the commission of the offence, may be personally liable for non-compliances. See our earlier blogs on special executive liability and executive liability here and here.

Councils should review their existing waste collection contracts to understand if these new requirements impact any existing commitments. New tenders for waste collection should provide for FOGO collection prior to, or from 1 July 2030.

The FOGO Act can be found here Protection of the Environment Legislation Amendment (FOGO Recycling) Act 2025.

Please leave a comment below or contact Anna Sinclair on 8235 9713 or James King on 8235 9722 if you have any questions.