Has Brownlee actually broken any laws?

So Gerry Brownlee was running late for a plane, sweet-talked some hapless airport security guard into letting him duck through an exit door to avoid the screening queue, and is now facing an investigation by the Civil Aviation Authority.

He’s offered to resign his Transport portfolio, which John Key has refused, producing much frothing from John Armstrong. Armstrong rants that:

The Transport portfolio includes responsibility for civil aviation. If the minister responsible for the rules covering airport security cannot be bothered abiding by those rules, why should anyone else feel they have to.

His being a minister also put airport security staff in a compromising position – and that is also unacceptable. As a minimum. John Key should have relieved Brownlee of the portfolio on a temporary basis until the Civil Aviation Authority’s investigation has ascertained exactly what happened – something which should take only a day or so at most. To some extent, however, Brownlee has – to his credit – pre-empted that investigation by admitting he was in the wrong and the one who is to blame.

This is no minor matter. Avoiding security screening is a serious offence which carries a fine of up to $3000 and up to two months in prison.

I’ve got a few issues with Mr Armstrong’s analysis. Firstly, Mr Brownlee has in fact requested that his responsibility for CAA to be transferred to his associate minister until the investigation has been completed. Michael Woodhouse now has interim responsibility for CAA.

Secondly, Mr Armstrong’s view seems predicated on Mr Brownlee actually having broken the law:

Like anyone else, Brownlee should not receive any special treatment and should face the potential legal consequences of his actions.

Cabinet ministers, however, also have to set an example. Otherwise the rule of law is rendered meaningless.

He equates Brownlee’s transgression with Ruth Dyson’s resignation as a Minister when she was caught drink driving.

So what law has Mr Brownlee broken? A NZ Herald article on the matter states that:

Section 28 of the Civil Aviation Amendment Act 2004 says a person commits an offence by acting “in a manner that endangers an aircraft or any person in an aircraft”.

For a start, s 28 of the Civil Aviation Amendment Act 2004 says no such thing. It’s a section that inserts Part 5A into the Civil Aviation Act 1990, which deals with “Unruly passenger offences”. Presumably, the Herald writer is referring to s 65F of the Civil Aviation Act (which was indeed one of the twenty sections inserted as Part 5A). However, it seems a rather large stretch to say that Brownlee’s endangered an aircraft. The section doesn’t say “might have endangered”. For a conviction, it has to be proved that the aircraft or any person in the aircraft were in fact endangered.

As far as I can see, the only possible sections of the Civil Aviation Act that could conceivably have broken are ss 51 and 54(1)(b). But even they don’t quite fit the facts of this case.

Section 51 states:

Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who, without reasonable excuse, enters or remains within any aerodrome or any building or area in which are operated technical facilities or services for civil aviation, when directed not to enter or not to remain by a person duly authorised by the Director in writing for that purpose, a constable, or an aviation security officer, or by notice posted by one of those persons.

The problem is that Brownlee asked an aviation security officer whether he could go through the exit door. The security officer granted him access. He therefore wasn’t directed not to enter; in fact, the complete opposite is true. And having obtained permission from an aviation security officer to enter the area also sounds like a “reasonable excuse” to my mind.

Section 54(1)(b) states:

Every person commits an offence who, on being found in a security area or security enhanced area, refuses forthwith to leave the security area or security enhanced area after having been ordered by an aviation security officer to do so.

Again though, Brownlee hasn’t refused to leave after having been ordered to do so. He’s been granted access by an aviation security officer.

Now sure, the security officer’s actions, in letting Brownlee through, were certainly in breach of the airport’s rules, but as far as I can see there’s been no breach of the Civil Aviation Act by Gerry Brownlee.

Did Brownlee’s actions display a certain level of arrogance? Indeed, but that’s not a firing offence…



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