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Right to protest up for change

Written By: - Date published: 9:01 am, July 15th, 2010 - 38 comments
Categories: Social issues - Tags: ,

For many people the activity associated around protest at Waihopai are a mystery, with little impact on their everyday lives. However plans afoot by the Government to change the ‘claim of right’ defence might come be more relevant. the claim of right allows someone to argue they had a firm belief their actions were legal, even if they weren’t. According to RadioNZ:

Justice Minister Simon Power says the courts appear to have extended this defence beyond what was intended by Parliament. Adrian Leason, Sam Land and Peter Murnane admitted deflating a 30-metre high dome(at Waihopai spy base) at the base two years ago, but were acquitted in March this year by a jury in the Wellington District Court.

They argued their actions were justified by the greater good of saving lives in Iraq.

Peter Murnane believes amending or removing the defence will curtail lawful protest.

“Governments, including our own, have done terrible things and they need to be watched by sensible citizens and conscientious citizens and protested against vigourously and strongly.”

However Mr Simon Power says he’s approached this objectively and is only interested in improving the law. He says the criminal justice system needs to have the “relevancy of its component parts tested pretty rigourously from time to time” and other areas are reviewed as well.

It may well be that tightening the scope of protest is not Power’s intent, but that’s not to say others will not. Is it so impossible to let the judiciary decide what is reasonable or not?

38 comments on “Right to protest up for change ”

  1. Lanthanide 1

    “Is it so impossible to let the judiciary decide what is reasonable or not?

    Considering that they came up with completely the wrong verdict this time, yes. It really is completely impossible to go and damage private property (and trespass) in the way that they did, claiming they “genuinely believed it was legal”. That’s why that sort of things happens every other week, right, because it’s legal to do so? Why haven’t they done it again?

    “Peter Murnane believes amending or removing the defence will curtail lawful protest.”
    No, it will curtail unlawful protest. That’s the whole point. What you did was unlawful and getting off from the charge was a complete fluke.

    • Why haven’t they done it again?

      Because it has been made clear to them that it was unlawful.

      The case went something like this:
      facts alleged;
      defendants say they want to argue facts don’t amount to a crime;
      judge say they can’t because facts do amount to a crime;
      defendants then want to argue, okay it was a crime, but we shouldn’t be criminally punished because we thought it was permissible.
      This succeeds.

      But they can’t do it again because now they know they were wrong. They can’t say “I thought what I was doing was permissible” because a judge has told them it wasn’t. Indeed, he’s told the whole country it wasn’t, so no-one who paid any attention to the case can do it either.

  2. just saying 2

    Yet another authoritarian ‘police-state’ measure which is not being vigorously opposed by the opposition. On the contrary, there seems to be a kind of quiet support for them.

    • Rex Widerstrom 2.1

      Of course there isn’t. They’re quietly waiting their turn to once again assume absolute power, and an authoritarian police state is a prerequisite to being able to continue using that absolute power corruptly.

      There are some in Labour who seem awake to this – some of the more recent inductees – but I’m sure by the time they get to have any influence over this as spokespeople or Ministers they’ll have had this silly outdated belief in personal freedom completely sucked out of them and will assume the same brave… “I’m over here doing something else… whoops, your rights just got further eroded” stance adopted so effectively by Lianne Dalziel.

  3. ianmac 3

    Ill-considered actions are typical these days:
    Herceptin. Populist decision over the top of the Medical expertise.
    National Standards. Populist decision over the top of the Educational expertise.
    Provocation. Populist decision over the top of the Legal expertise.
    Claim of Right. Populist decision pending over the top of the legal expertise.
    Benefits. Populist decision over the top of the Social expertise.
    Funding: Populist decision over the top of the Polynesian expertise.

    • Butyeahbutnahyeahnah 3.1

      I believe that the Law Commissions recomendations on the misuse of drugs act would fit snugly in with the rest on your list.
      I also believe that this is part of the continuing bi-partisant movemnt to bring us from an open democarcy to a closed, dictatorial, society. (M.Moore – have you ever attended a Bilderberg meeting? H.Clarke, what were you doing before and after your Madrid speech when the Biderburgers were meeeting just down the road?)
      And finally I believe it is a conspiracy to removed the legal defence of medical cannabis users/growers, because surely these people are relieving the most human suffering in NZ.

    • Pat 3.2

      By “populist decisions” I guess that means they are popular because most people are in favour of them. As reflected in the polls.

      • Tigger 3.2.1

        The ‘populist’ argument looks sensible but it is a simplistic way of looking at it. It’s like saying it’s okay for a mob to run through town with pitchforks and torches and drag someone off because it’s majority (as polled) opinion that they’re a witch. If common sense or logic are being ignored then the will of the majority is not necessarily right nor warranted.

        There has been a movement to squash dissent in society for decades – but definitely being ramped up in recent times. Squashing protest will only cause it to fester and explode. Combining an unheard populace with armed police is a ticking timebomb…

      • ianmac 3.2.2

        By populist I mean making decisions based on how it will win approval politically, or as a response to popular conception or misconception of issues. This is in spite of or ignoring some research that would indicate the fish hooks.
        For example: Some kids fail in school. Identify who and why. (Known for decades.) Decide which strategy works and fund it. But instead they have created an expensive monster which will not add to the knowledge and will not help the kids who are failing now. Populist? Maybe.

        The catch is that in the long term such misguided decisions start to cause anomalies and contradictions, rather than reasonable even flows.

    • Draco T Bastard 3.3

      Provocation. Populist decision over the top of the Legal expertise.

      Actually, I thought the legal fraternity was in favour of getting rid of the provocation defence.

      • Lanthanide 3.3.1

        They were initially (~2004?), Draco, but apparently when the issue was brought up again because of Weatherston they vacillated on it.

      • ianmac 3.3.2

        Yes and No Draco. They believed that should it be abolished there would need to be written into law recognition that it could be taken into account. I believe that the Politicians just got rid of it without including the recognition that there could be circumstances. eg Battered wife.

    • Nick C 3.4

      Can you name a ‘legal expert’ who has come out against this ianmac? The guy who popped the dome doesnt count.

      Also you make the arguement so one sided. E.g. there are lawyers who came out against the provocation change but plenty who supported it.

      • ianmac 3.4.1

        Nick. I cannot name the expert but it was probably on National Radio. The spokesman said that the Law Commission had been concerned about the issue of provocation for some years, but believed that to simply abolish it was not the answer. They had been considering the need to include provocation perhaps as part of the Judge’s sentencing.
        My take on it is that there is a gap between self-defence and deliberate malice with forethought. Endless bullying. Wife teasing/hurting. Not quite self defence but not murder either.
        I think that the Waihopai case is not a reason to change the law.

      • The New Zealand Law Society opposed the repeal of the provocation defence.

        The two experts quoted in the DomPost today were John Billington QC, and Jonathon Krebs, convener of the Law Society’s criminal law committee.

        • ianmac 3.4.2.1

          Thanks Graeme. Though at the time of Weatherspoon it was discussed then. If it hadn’t been for the huge media presence and the public reaction the law might not have been changed on the hoof, unless due consideration was given to implications. Baby with bath…..

  4. jcuknz 4

    There is a vaste difference between protesting and vandalism. This needs to be part of the law change.
    It was the jury not the judge remember who found them not guilty. Led astray by the law from common sense.

    • Draco T Bastard 4.1

      Why does the law need to be changed? It’s now been made clear that damaging property is not part of legal protest.

    • Yes, protesting is those little people in the margin making an ignorable racket and the threat of vandalism or destruction of things our elite holds dear like the shit they use to suppress the rabble is what could hold them honest. Take that away and make all destruction about PROPERTY and not a about morals and you will effectively tie everybodies hands.

      As Jefferson said: A population in fear of their government is Tyranny but a government in fear ofits people is freedom.

      Do you have the feeling our government is afraid of us? No, I didn’t think so.

      And I counter your silly statement about being let astray by the law with the following. The law is very clear about destroying property. It’s is a crime but there is only one exception: If done for moral reasons. The Jury followed their common sense instinct and judged the men’s actions to be so.

      With the worldwide economic collapse progressing as it is you are going to find our ruling elite to become more and more aggressive in protecting their elevated positions and one day you are going to regret having made this easy for them because trust me: You are not in the club.

  5. michaeljsavage 5

    Our freedoms and rights are being quietly removed piece by piece. I dont agree with what was done at Waihopai although i respect their joint sincerity.

    Damage to property is not lawful protest in my view. However it doesnt distract from the fact that for all NACTS supposed commitment to “small government” they seem to want to have some sort of Governmental behemoth poking into all our lives, legislating enjoyment and individual freedoms out of life. Personally i like the idea of “Big People Friendly Government” – much nicer.

    People like Paula Bennett and Judith Collins simon power etc (apart from their posturing and Theresa Gattung lookalike striving…) remind me very much of a critics comment on the Bush Jr Presidency … that they “seemed to believe that reality can be created to fit their worldview…” or words to that effect. No consultation – just pointless, mindless ersatz ‘tough talk’ that basically means yet another freedom or right that is lopped off by Government.

    No – i dont think its reasonable to keep tinkering with laws on the basis that someone gets acquitted and the circumstances dont fit your personal or corporate wishes. Its like trying to herd sheep into a truck to be carted off to the killing shed – you keep removing all avenues of hope.

  6. Sarge 6

    Any law which allows people to destroy property (and escape punishment) needs to be changed.

  7. dave 7

    Is it so impossible to let the judiciary decide what is reasonable or not?
    Not according to National, as the claim of right is not about reasonableness, but may be if the law is changed. On the other hand Section 59 was about reasonableness and look what Labour and National did to that.

    • comedy 7.1

      “Is it so impossible to let the judiciary decide what is reasonable or not?”

      I’m sure the judiciary would do a pretty good job but this was a jury trial I believe ?

    • Daveosaurus 7.2

      The problem with Section 59 is that people were using that Section to get off on charges of what can only be characterised as gross child abuse. The attacking of defenceless children with stockwhips, wooden stakes and Alkathene drainpipes is much more dangerous to society than the popping of a plastic bag.

  8. This response by Power is way over the top.

    The Judge apparently gave the jury as strong a direction to not allow the defence but they responded by acquitting. Juries can do this.

    There is a concept in the US known as “Jury Nullification” which essentially recognises the right of a panel of citizens to stand up to the state by refusing to convict despite the breach appearing to be clear. I believe the result here was an example of this.

    The only way that Power can stop these results is to do away with jury trials. I wonder if he will do this the next time an adverse jury decision is made?

    • michaeljsavage 8.1

      Gidday Micky – i’ve been giving you some backhanded bad press by my naughty behaviour … apologies for that mate.

      • mickysavage 8.1.1

        Hi MJS

        No problems I have no proprietary rights.

        The difference is subtle but distinguishable …

        • michaeljsavage 8.1.1.1

          Your courtesy and understanding is greatly appreciated MS – people were thinking i was you and they were concerned you had had a lobotomy – hence the apology

          I informed them i was the evil MJS and you are good MJS

  9. Bill 9

    A few years back in the UK some people trashed fighter aircraft that were due for export to Indonesia. And of course, the jury found them not guilty as their actions had prevented a far greater crime.

    I’m guessing that was the same or very similar to the defence used by the ‘Waihopai Three’. Both cases indicate the extent to which the general populace is out of step with the views of government and the various, highly rewarded and remunerated, ‘experts’ positioned on the conventional perches of rightful authority.

    This is a serious issue that must be addressed.

    As the general population are lacking in the proper sensibilities, there can be only one course of action. Change the law to shut down the space where silly contrary sensibilities might find expression and have unfortunate effects in the real world.

    • Lanthanide 9.1

      I wouldn’t have anywhere near as much problem with direct weapons of war being destroyed by peace activists.

      Deflating a dome on a satellite dish that most likely has nothing to do with the war in Iraq/Afghanistan (in fact, could even be saving lives by providing useful information) is what I have a problem with.

      Then the government had to pick up the tab of ~$1m to replace it.

    • ianmac 9.2

      The Professor of Law speaking this morning on Nine to Noon, called this a “rogue” jury decision and was not one that would set a precedent. He believed that the problem lay in the police decision to include burglary in the charge.
      He said that the ammendment might be to add the word reasonable or commonsense rather than just abolish because there could be exceptions. “I bought it on Trade Me believing it to be fair but it turned out to have been stolen. I must return the item but I should not be regarded as a criminal for receiving stolen property.”

  10. It’s the “Authoriatarian Daddy State” mentality at work again.

  11. Scott 11

    Simon Power is reacting to one unusual jury decision.

    The Ministry of Justice briefing paper Power commissioned says “Until March 2010, there were no significant issues with the use, scope, or application of claim of right.”

    Changing the law because of one rogue jury is an enormous overreaction and a waste of money. So much for the theory that he is one of the smarter ministers.

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