Graeme Edgeler: Just get the App, already

It’s over two years since then-Minister of Transport Gerry Brownlee boarded a plane in Christchurch, after entering a secure area through a no-entry door, skipping past the security check.

I spent time that day on Twitter, trying to work out what law Brownlee might have broken (I couldn’t find one), and ended up writing a post, without really getting to the bottom of it. My curiosity piqued, I requested a copy of the Civil Aviation Authority report into the events under the Official Information Act. I make a few OIA requests, and have a pretty good track record of, eventually, getting the information I’m after. I’m rarely in a hurry, and when things are redacted, it’s usually for a reason that seems justifiable.

This time, however, the response I got was entirely unhelpful. I wanted to know why a regulatory agency believed an offence had been committed, and it had redacted all its legal analysis. Judges don’t tend to do that when issuing their reasons, and it seemed a little off that a regulatory agency could decide that a criminal offence had been committed, decide to impose an infringement fee rather than prosecute, and thereby inoculate their decision, and their legal reasoning from public scrutiny. So, I think for the first time (or at least, my first time other than as a lawyer), I complained to the Ombudsman about.

I’m glad I did. I got a much-less-redacted copy of the report last week, and not only was my curiosity satisfied, I confirmed that the CAA sees quite a few of the same issues with New Zealand’s aviation security rules that I saw two years ago.

So, what law did Gerry Brownlee break? Oddly, it has nothing to do with his not going through security screening. Instead he was determined to have been in a security area without an airport ID. That probably seems like an odd law to break, because what passenger has an airport ID? But this offence has an exception for people who are in a security area for the purpose of joining or leaving a flight if they have a boarding pass for that flight.

And Gerry Brownlee didn’t have a boarding pass.

That’s it.

If Gerry Brownlee had the Air New Zealand app on his phone, his electronic boarding pass would have meant he hadn’t committed the offence the CAA say he did. That he didn’t pass through security screeening is legally irrelevant. He got an infringment notice, and had to pay a $2000 infringement fee because he got his boarding pass at the gate.

Now, I feel I ought to front up, and admit that I have committed the offence Gerry Brownlee committed. I once saw my nephew and niece off at the departure gate when they were travelling as unaccompanied minors.

And we now know that the CAA acknowledges that this is illegal:

Of note, it is not currently a requirement that persons who pass through an AVSEC security screening point have to show their boarding pass to the AVSEC Officers. Clearly there are occasion when person may pass through a security screening point when they do not hold a board pass i.e. parent seeing off their unaccompanied minor on a flight, person wanting to see off a passenger and having coffee with them airside, etc.

While these persons may not be in technical compliance with the [Civil Aviation Rules] as they are not deemed to be passengers in possession of a boarding pass, the fact is they have been screened, unlike Mr Brownlee and his aided, and therefor the level of aviation security risk is low.

There are rules requiring people entering security areas to pass through security screening, but the rules do not create a criminal offence, or even an infringement offence, for those who do not. The CAA looked at whether it could charge the offending under as a “breach of statute” for failing to go through security screening, but decided it would be face difficulties (the breach of statute offence is essentially a holdover from a time when our laws were drafted less voluminously, and could be used when Parliament clearly intended something to be a crime, but didn’t provide a maximum sentence). I concur.

It seems clear, and the CAA appears to agree, that law does not actually provide an offence which covers passengers who are in airport security areas without having gone through security screening.

This seems odd. It isn’t to say there aren’t consequences. If you don’t go through security, they shouldn’t let you on your flight. And if they let you on a flight, they’re supposed to get everyone off the flight, and take them through security again before it can take off, but there doesn’t seem to be an offence in our air travel legislation that covers the individual’s actions, while there is an offence that makes it illegal for parents to wait with their kids before they fly as unaccompanied minors.

And maybe, if anything good is to come from Gerry Brownlee’s escapade, we could fix that?

Graeme Edgeler is a Wellington barrister with an interest in electoral and constitutional law. This article was originally published on the Legal Beagle blog at http://publicaddress.net/legalbeagle/just-get-the-app-already/.