Progress On Rcd Legal Issues

  • Simon Upton

The Government has made considerable progress towards sorting out the highly complex legal issues surrounding the use of rabbit calicivirus (RCD) in New Zealand, the Minister for Biosecurity, Hon Simon Upton said today.

Mr Upton said people should realise that the Government and its officials had been forced to regularise a situation that arose from an illegal act.

"Critics, including councils, who have accused the Government of dragging its feet on sorting out legal issues are ignoring the enormous amount of work involved and the complexity of the issues at stake", said the Minister. "They are also ignoring what has already been achieved."

Mr Upton said the application of the Pesticides Act to the use of RCD was the only major legal issue which remained unresolved. [see attachment] "While this may prevent regional councils from directly spreading the virus, there is nothing to stop them from facilitating the organised spread of the virus in other ways, such as by helping to co-ordinate farmers' efforts and by providing the appropriate advice and
information on the best ways to use it."

"I would have to observe that the push for regional councils to be more directly involved in the spread of RCD seems to be coming more from regional councils themselves, than from farmers," Mr Upton said. "Many farmers - and the MPs who represent them - made it quite clear at the outset that farmers should be left to get on with the job. That is why MAF decided to work through the Rural Futures Trust to disseminate information."

The Minister also reminded critics that in a democracy, the views of those who oppose the use of RCD must also be heard and respected. "We cannot simply push through changes without debate. We must adhere to proper procedures."

Legal issues considered and actions taken to date are:

Biosecurity (Rabbit Calicivirus) Regulations 1997

These were promulgated with effect from 24 September 1997. These regulations remove RCD from the possible application of section 21 of the Animals Act 1967 from that dates. That means that the possibility of being prosecuted for knowingly possessing the virus no longer exists. People may harvest the virus from dead rabbits for the purpose of using it as a biocide, subject to other applicable laws.

Biosecurity (Rabbit Calicivirus) Amendment Bill

This Bill is currently before the Primary Production Select Committee which is calling for public submissions. It will have the same effect as the Biosecurity (Rabbit Calicivirus) Regulations 1997. It was considered advisable to introduce the Bill, not because of any deficiency in the regulations, but because those intending to possess and spread the virus deserved certainty as to the legal status of doing so. Regulations may be challenged by a judicial review process, and it was considered possible for a challenge to be mounted in respect of these regulations.

Introducing the Bill provides a clear indication of the Government's intention, although it does not prevent a challenge being mounted, nor to it being considered by the Court. The Bill will revoke the regulations when it becomes an Act.

Resource Management Act 1991

The main issue under this Act is whether or not the release of the virus into the environment constitutes the discharge of a contaminant to which section 15 of the Act applies. This issue may be dealt with by the obtaining of resource consents issued by the Regional councils (which apparently have been used to date), or an exemption may be made by regulations promulgated under section 360(1)(h) of the Act. Regional councils (at least the North Island councils) want regulations to be put into place. The legal section of the Ministry for the Environment, which administers the Resource Management Act, has been asked for comment by MAF.

Animals Protection Act 1960

This Act governs the "manipulation" of live animals. Deliberately infecting rabbits with the virus for the purposes of generating more virus falls within the coverage of this Act. Persons wishing to carry out this activity are required by the provisions of the Animals Protection (Codes of Ethical Conduct) Regulations 1987 to obtain a code of ethical conduct prior to undertaking the activity. A code is not required where persons harvest dead rabbits and generate the material from selected organs from the carcasses.

"Unwanted Organism" Status

RCD virus was declared to be an "unwanted organism" prior to its being brought into New Zealand. Now that it is here maintaining that status enables MAF to enter properties, monitor the spread, take samples analyse the effect on rabbits and other species and the like. Removal of this status removes that ability. The Biosecurity Act Amendment Number 4 will provide that it is an offence to spread an "unwanted organism" unless exempted by the Chief Technical Officer. From a legal perspective there is no problem with maintaining the status quo. The Chief Technical Officer will by notice in the Gazette exempt persons spreading RCD virus material from this new provision. Protection for "valued" rabbits will be maintained.

Health and Safety In Employment Act 1992

This Act places a duty on employers to ensure the safety of employees while at work. Where employees are involved in the harvesting or spreading of RCD, employers are to ensure that the harvesting or spreading is carried out in a manner which does not endanger the health or safety of employees. The duty also extends to those persons who are not employees but are present in the vicinity of the activity.

Pesticides Act 1979

This Act, which will be phased out when the Agricultural Compounds Bill is passed, provides for controls on the manufacture and sale of pesticides. RCD virus is a pesticide when used in certain circumstances, but in other circumstances it is not.

Essentially, the use of "home brew" vaccine by an individual on an isolated or small-scale basis is unlikely to be covered by the provisions of the Act. However, once the virus is used as a biocide on a larger scale whether by individual, a network of farmers, regional councils or commercial agricultural pest destruction contractors, it is only a matter of degree before it can be regarded as a "manufactured" substance and therefore covered by the Pesticides Act. The more organised the operation becomes, with the more participants, and the more division of the virus-containing material among them, the more likely it is that the Pesticides Act will apply.

It must be assumed that at a certain point RCD will be used as a biocide on a scale which for practical purposes brings it into the category of a pesticide. Where this occurs, there is provision in the Pesticides Act to enable the exemption of a pesticide from some or all of the provisions, but legal advice indicates that this approach would not be appropriate for RCD.

If RCD is to be used as a pesticide in New Zealand, some manufacturer will have to seek registration for the virus based product from the Pesticides Board. This will not necessarily be an onerous task as all of the information likely to required to support an application is in the public domain and can be obtained from MAF.

The Pesticides Board is fully aware of the issue and has indicated that it would be prepared to call a special meeting to consider an application if one was to be lodged in the near future.