Legal Beagle by Graeme Edgeler


Gerry Brownlee is Innocent; or Free the Brownlee Three (updated)

[Please see the update at the end of this post, which may need a partial retraction]

Today we learned of the result of the Civil Aviation Authority investigation into the 'security breach' at Christchurch Airport involving the Hon. Gerry Brownlee and two un-named staffers.

The CAA issued Brownlee with an infringement notice for being in security area without identity card or document, a breach of rule 19.357 of the Civil Aviation Rules (.pdf). The infringement notice carries an infringement fee of $2000 (which is not a fine). Parking violations and speeding are examples of infringement offences; infringement offences are illegal, but they aren't really crimes, and infringement notices don't result in convictions or criminal records, even if you dispute them in Court. Contrary to opposition comment, the CAA did not impose the maximum fine, but rather, imposed the infringement fee set by law. Just like with speeding tickets or red-light running tickets and other infringement fees, the level is set. If you're issued an infringement notice for speeding where your "speed exceeds the speed limit by ... not more than 10 km an hour", the infringement fee is $30. If you drive without a seatbelt, the infringement fee is $150. And if you are in an airport security area without without an airport identity card, the infringement fee is $2000.

Many rule breaches are both infringement offences and offences. Authorities are given the option of either issuing an infringement notice, or charging the person with an offence. The elements of each are the same, but if authorities choose to charge, a conviction can result and the maximum penalties are usually higher (for speeding itself, this isn't possible, but for seatbelt-less driving, a fine of $1000, instead of fee of $150), for the security area thing, it's a maximum fine of $5000, but oddly an actual fine would probably be less than $2000, with the punishment of a conviction making up the difference.

The Civil Aviation Authority chose not to lay a prosecution, which would have been a harsher response than the one they took, and apparently despite previous assurances, has not released its report into the breach. I would quite like to see it, so have requested it under the Official Information Act. I think that a criminal charge in these circumstances would have been overkill, but am still interested to see the CAA's reasons for not recommending one.

For myself, I see one truly excellent reason not to charge Gerry Brownlee, which is probably obvious from the title of this post: Gerry Brownlee is innocent.

When the 'security breach' was first notified, I was involved in some twitter conversations about what trouble Gerry might be in. I couldn't find anything. People suggested things, but nothing really worked. The New Zealand Herald's John Armstrong called it a "a serious offence which carries a fine of up to $3000 and up to two months in prison." I still have no idea what offence he was thinking of, as there isn't a single civil aviation offence that carries a two month prison term.

I came out with three possibilites, the rule in respect of which the CAA issued their infringement notice, and offences against two sections of the Civil Aviation Act: section 51 (trespass) and section 54 (being in a security area), both offences with a three month maximum, but quickly came to the conclusion that none could apply.

The trespass offence has probably the strongest argument, but it is still weak, because Brownlee asked for, and received, permission to be where he was, which make his actions the antithesis of trespass.

The offence of being in a security area or security enhanced area is only committed if you are in a such an area and you refuse the leave when asked, and it doesn't apply to Brownlee's situation because he didn't refuse to leave and wasn't asked.

The infringement offence is contained in rule 19.357(b). It states

(b) Subject to paragraphs (c) and (g), no person shall enter or remain in any security area or security enhanced area of any designated aerodrome or designated installation, unless that person—
(1) wears an airport identity card on the front of his or her outer garment; or
(2) has in his or her possession another identity document or other identity documents for the time being authorised under paragraph (a).

Now, I'm pretty sure Gerry Brownlee doesn't have an airport identity card, but there are some exceptions, including:

(g) Nothing in paragraph (b) shall apply to—
(3) any passenger who enters or leaves a security area or security enhanced area for the purpose of joining or leaving a flight, if he or she is in possession of a valid boarding pass for that flight or is being escorted by a crew member or a representative of the operator;

This is the bit of the law that means you don't break the law when you leave the terminal and walk accross the tarmac to your aeroplane. And it simply does not require you to go through security screening before entering an airport security area. All it requires is that you have a valid boarding pass, and I am pretty sure Gerry Brownlee will have had one. [Please see the update below.] Issuing an infringement notice for a breach of this rule in these circumstances simply makes no legal sense. 

I'll leave aside the question of whether there should be a rule that imposes an infringement fee for someone who attempts to board an aeroplane subject to security screening without actually going through security screening, but we simply don't appear to have one. I have no doubt that Gerry Brownlee took the politically proper course by paying the infringement fee quickly after it was imposed, but it is still wrong for the Civil Aviation Authority to impose liability where none exists, which you'd think a four-month investigation might have pointed out.

I await the response to my OIA response with interest :-)

[UPDATE (~2 hours after posting): I have just listened to Mary Wilson's Checkpoint Interview with CAA Director Graeme Harris. During that interview, principally dealing with the witholding of the report, Mr Harris indicated that, at the time that Gerry Brownlee entered through the door he ought not to have, he did not have had a boarding pass, noting these were subsequently obtained from the Koru Club by Mr Brownlee's associate. This would change my analysis, which as I note rests on the basis that "... I am pretty sure Gerry Brownlee will have had [a boarding pass]". If my "pretty sure"-ness is unsubstantiated, my criticism of the CAA for issuing an infringement notice for a breach of rule 19.357(b) is misplaced, and I apologise.]

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