Keith Locke on the Crimes Amendment Bill (No 2) – In committee, part 2



I just want to take a short call to follow up on Charles Chauvel’s comments on the “claim of right defence”. I think in essence, and I think others have indicated, there is quite a contradiction in the Crimes Amendment Bill (No 2) between the major part of it in terms of the number of clauses, which are concerned with helping children who have been abused, even though there could be a few problems with the clauses, and the claim of right defence, which is trying to penalise people who are trying to help others. A lot of the use of the claim of right or colour of right in defences historically, goes way back when it is beyond property-related matters for which the defendant has a proprietary interest in the property, which is what the bill is restricting the claim of right to.

When we go beyond that, most of the cases relate to people doing things for good motives and often to help people. I think Charles Chauvel’s example is a case in point of a young chap faced with pressure on him to remove a car that was blocking the way into the forecourt of a business during the Christmas period—I think it was a retail business. He was doing it for totally good motives. He had no proprietary interest in the car he removed and scratched, but he could use the claim of right as a sort of broader catch-all provision that covers people doing things for very good motives, even if in this case he might have been technically driving under age and scratched a car, or whatever it was. The same applies in the case that I used of someone going next door, hearing yelling and screaming and thinking someone was getting beaten up, so they break down the door of the neighbour’s house. Of course the person doing that has no proprietary interest in the door of the neighbour’s house, but they could use the claim of right as a defence. That is similar to the Waihopai three, who were trying to do good for the people in another country, in Iraq, who they saw were being killed partly as a result of the information being provided by the Waihopai satellite communication station. The information was being provided to the American Government, which could have been of use to it in the Iraq war. I think that to rush to remove a claim of right or cover of right defence after the one or two centuries it has been operating in common law and still operates in the law of many countries—and it is true that it has been restricted and its application has been narrowed down in some countries, but there is still a tendency internationally to use it to protect people who for the best of motivations technically break a law. Even at this late stage I appeal to the Government to take that bit on the claim of right out of the legislation. The Minister of Justice, after these appeals from Labour and the Green speakers, could just admit that. He said it was put in the bill for practical reasons and that the Justice and Electoral Committee was busy, but it does not really fit with the legislation. It deserves more attention from the legal profession and the public before the cover of right is removed from our legislation or is narrowed right down to property that people have a proprietary interest in.

The question was put that the following amendment in the name of Hon John Boscawen to Part 1 be agreed to:

to insert the following subsection into new section 195 after subsection (3):

(4) An offence under subsection (1) is a serious violent offence as defined in section 86A of the Sentencing Act 2002.