I will outline the section for members. The section states: "A member of the Garda Síochána not below the rank of superintendent may apply to a judge of the District Court for an order (in this section called a "forfeiture order") for the forfeiture to the State of any microbial or other biological agent, or any toxin (whatever its origin or method of production) or other thing, on the grounds that possession of the agent, toxin or other thing in the circumstances in which it was found is prohibited under this Act." A senior member of the force may apply to the District Court for an order for the forfeiture to the State of the biological agent or toxin prohibited under the Act where it is to be used for a non-peaceful purpose.
As Deputies will be aware, most biological agents occur in nature and are ubiquitous in the natural environment. They may be found in water, soil, plants and animals. The development of biological agents by humans is necessary to produce vaccines to prevent or cure infections caused by those agents. An outright prohibition of production of biological agents would have threatened vaccine production and other perfectly legitimate activities valuable to society.
Some toxins occur everywhere in nature. The venom of a spider or a snake and the sting of a wasp or a jellyfish are all toxins. Accordingly, the negotiators of the biological weapons convention prohibited the production and use of biological agents by reference to the purpose or intent of the producer or user. Therefore, the prohibition laid down extends to all biological agents and toxins unless they are intended for peaceful purposes and unless their types and quantities are consistent with such purposes. The effect of Deputy Higgins's amendment is that the person concerned would not know or be entitled to know that an application has been made to court to forfeit a biological agent or toxin found in that person's possession. This means the person would not be given an opportunity to argue before the court that the agent or toxin is intended for peaceful purposes before the court takes a decision on its forfeiture.
In addition, section 11(4) confers a right of appeal against a forfeiture order or a person aggrieved by it. Such a right of appeal would be totally undermined if the official application of the Garda Síochána for a forfeiture order could be made ex parte. The forfeiture is an interference with property rights, which enjoy constitutional protection, and therefore should not be provided as such rights could be interfered with without a the right of reply. However, section 11(2)(b) does contemplate an application for a forfeiture order to be made if the owner or person who has the right to possess an agent, toxin or other material at issue cannot, after reasonable inquiry, be found. I am unable to accept the Deputy’s amendment for these reasons.