Government to reform or repeal Waihopai 3 defence

The Government is to either reform or repeal the 'claim of right' defence successfully used by the defendants in the Waihopai sabotage case, Justice Minister Simon Power said today.

A preliminary report has identified five options, including the removal of the defence.

Mr Power has asked officials to identify which one best fits New Zealand's legal framework. They are expected to report back by the end of September.

The options are:

*         Shifting the burden of proof

Amending the definition of 'claim of right' so a defendant would have to prove they have a 'claim of right', rather that the prosecution needing to prove they do not.

*         Adding a reasonableness element

Amending the definition of 'claim of right' so a defendant would have to show that at the time of the offence their actions and/or beliefs were reasonable.

*         Amending the offences that have 'claim of right' as an element

Amending some or all of the 14 offences in the Crimes Act that have 'claim of right' as an element to ensure the defence is not wider than appropriate.

*         Adding a property interest criterion

Amending the defence of 'claim of right' so only a defendant with a legal claim to the property concerned could use the defence.

*         Repealing the defence

Remove the 'claim of right' defence from the Crimes Act so the defence is not available to any defendant in future.

Mr Power says his preliminary advice is that the courts have extended the 'claim of right' defence beyond what was anticipated by Parliament when it was defined in the Crimes Act 1961, and amended in 2003.

"The 'claim of right' defence has a long history in common law and was used in New Zealand well before it was formally recognised in the Crimes Act.

"It's clear it was not intended to be used to excuse the behaviour of people who take or damage property in cases where they are not claiming a personal property right.

"Concern has been raised that the legislative scope of 'claim of right' has become too broad and that the defence should not be able to be used as it was in the Waihopai case, and I agree with that.

"It also appears our law on this is out of step with comparable overseas jurisdictions, including England, Canada, and several Australian states.

"I have asked officials to look at finding the best option to bring the defence back to what Parliament intended, to clarify its scope, to address issues specifically raised by the Waihopai case, and to bring it more into line with overseas jurisdictions."

The preliminary briefing can be viewed here < http://www.justice.govt.nz/policy-and-consultation/legislation/claim-of-right-review >.