Brownlee unfairly fined

When Gerry Brownlee and two of his staff attempted to bypass security at Christchurch Airport in July, there was much frothing at the mouth from commentators such as John Armstrong as to whether John Key should have accepted Mr Brownlee’s resigned as Transport Minister. Central to the frothing was the assertion that Mr Brownlee had committed an offence that carries a maximum sentence of imprisonment.

I argued at the time that no offence had been committed, as none of the offences set out in the Civil Aviation Act fitted the facts of the case. Well, this morning it’s been revealed that Mr Brownlee has been fined $2,000, while his two staff members have received warnings. The fine and warnings have been issued under Civil Aviation Rule 19.357(b), which reads:

(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).

Yes, Gerry Brownlee was in a security area without an ID that had been authorised by the Director pursuant to Rule 19.357(a), but para (g)(3) gives Mr Brownlee an out clause. It reads:

Nothing in paragraph (b) shall apply to 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.

Now, in this particular case, Mr Brownlee was attempting to board a flight that he and his staff had been running late for. They approached an airport security officer, and that security officer allowed them to duck through a side door, bypassing the security gate in order to to get to the plane in double-quick time. Mr Brownlee and his staff were in possession of valid boarding passes. Furthermore, they had the consent of the airport security officer to be where they were.

What does this mean? Well, it means that Gerry Brownlee is entirely innocent of the infringement that he’s been fined for. Nonetheless, it’s not a criminal conviction, and Mr Brownlee is no longer Minister for Transport (the role having gone to Simon Bridges, post-election). For political purposes, Brownlee will take the fine on the chin. He’s been seen to be punished; our authority figures are seen to not be above the law, even if the law has been incorrectly applied.

 

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10 comments

  1. …or is being escorted by a crew member or a representative of the operator.

    Dont see any crew member, ie cabin or flight crew or ‘representative of the operator ie Air NZ’
    here.
    The Airport security isnt a representative of the operator, and we have heard the security persons story yet. Some reports have said they were over ruled by a presumptuous Brownlee. Could anyone imagine Gerry being high and mighty?. Or in simpler terms we have heard before: Dont you know who I am!

    Then there is fact the plane flight was completed when the pilot knew some passengers hadnt gone through security.
    I suppose we will all hear about that just before the Xmas break

    1. The word “or” is fairly important there: If he didn’t have a valid boarding pass, then he would still have been in the clear if he were being escorted by a crew member or a representative of the operator. Given that he had a valid boarding pass, you don’t have to dig any deeper.

      Was it a piece of foolish, high and mighty decision-making from Brownlee? Yup. But he didn’t break the law…

      1. The information available shows they didnt posses their boarding passes ‘at that stage’ as they were being held at the gate for them. I understand from the radio interview of CAA director that the person who opened the door ‘when they heard the knocking’ was part of the airport staff.
        So no OK from Aviation security, no boarding pass, and no representative of airline.

      2. If that’s the case, it raises an interesting question about the definition of “possession”, as you don’t necessarily need to have something on you in order to “possess” it. There’d still be a strong argument that they were in possession of valid boarding passes if the passes were waiting at the boarding gate for them.

        Is there a link to the interview with the CAA director?

      3. Yes, possession can be interpreted to mean entitlement. The application of contra proferentem here means that possession is interpreted liberally, which supports your position.

  2. Brownlee admitted his guilt publicly, He deliberately went through an unauthorised exit past an employee who was undoubtedly (as the CAA director inferred on Radio Live today) intimidated by his status and bulk, He however reported this immediately after.
    A QC was used to confirm the specific rule breach..Why are you still defending him? If you or I attempted this we would have been in cuffs and our flight missed..
    Literal possession is 9/10th of the Law, I.m sure the other tenth is not as subjective as you seem to think hence the maximum fine….

    1. Hi Jax, I’m not defending Brownlee’s actions – it was certainly a “do you know who I am” / abuse of power moment. My analysis was on what actual infringement / crime Brownlee had committed, based on his reported comments (in which he essentially explained that he had knocked on a side door, explained to an airport security officer that he was running late for his flight, and was granted entry to the side-route, thus by-passing the security gate).

      However, I’ve listened to yesterday’s CAA director’s interview with Mary Wilson on Checkpoint, and it certainly casts doubt on Brownlee’s explanation, as both you and Ghostwhowalks point out.

      Given that Brownlee did not physically have a boarding pass on him, I now no longer dispute the legitimacy of the CAA’s decision to lay the infringement. However, I’m still of the opinion that there’s a very arguable defence based on the definition of “possession”, given the different definitions used throughout criminal case law. My proposed defence may well fail: I have no idea how a Court would interpret “possession” in the context of the Civil Aviation Rules. All I’m saying is there’s a strong argument that could be put to the Court, should the infringement notice be disputed (which, of course, it isn’t).

      1. Definition of possession is one of those things that courts and lawyers love. It would seem that in the airport context possession would be like a passport, you have to produce it, its no point it being in someone elses ‘possession’ on the other side of the building.

        Its really a mystery why they didnt just ask help with security to hasten the process, no one would have blinked if they saw the PM escorted through security, even a lower personage such as Brownlee, might have had a few side looks in his home town, but airports are like that, there are even signs that say ‘aircrew this way’.
        Years ago I remember Helen Clark was called aside for an additional check after arriving at an Australian airport, but thats the officious Australians at their most absurd.

  3. Now that the checkin boarding process has become more clearer, boarding passes dont seem to be required to enter the departure lounge, but only necessary to board the plane. So that seems to leave Brownlee as being in the departure lounge area like all the other intending passengers. But not charging him with anything at all would be worse than a Sutton redux and could leave him open to some wily old codger bringing a private prosecution. But that would require a the full CAA report released, which for some reason isnt available.?

    1. Yes, very strange that the CAA won’t release the report, after having initially said the report would be released in full, once complete. Hard to imagine what facts the CAA think aren’t safe for public consumption… And if the issue was one of privacy, surely any airport staff names could be anonymised?

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