Legal Beagle by 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?


On Gell-Mann Amnesia; or You Suck at This

I have a half-written post on the sentencing of Nikolas Delegat. Since the news of the sentence became public I’ve read the news reports, and responded to comments on twitter and Facebook.

 The sentencing seemed utterly unremarkable. I planned to say so. A first-time offender, 18 years old at the time of the offence, facing a charge of assaulting a Police Officer in the execution of her duty (which carries a maximum sentence of 6 months imprisonment) is simply not going to get a prison sentence after a guilty plea, at (technically) the first opportunity. And not qualifying for a prison sentence means home detention is out too. The maximum number of hours of community service someone can be sentenced to at one time is 400 hrs. You get a 25% discount for an early guilty plea. That makes it 300 hours. Add reparations on top of that. Easy. I was going to lay the blame on the police/prosecution for agreeing to guilty plea to such a minor charge if they wanted to complain about the sentence afterward.

But this isn’t that blog post. Because, as careful as I am on Twitter, I’m more careful when I blog. And part-way through the writing of my blog post (which to be honest, was going to carry little more information that the preceding paragraph) I figured I should read the sentencing notes. They’re rather sparse, because the judge also issued a judgment on Delegat’s application for as discharge without conviction. He lost that, and a conviction for violence is a pretty big penalty by itself if you’ve no previous record, and I was going to say so.

That blog post will remain uncompleted, merely summarised above. Because I have read the judgments, and I now know what Nicholas Delegat was actually convicted of. I apologise to the New Zealand Police for the tweets and comments I have made suggesting that it was their fault, or that of the prosecution, that a sentence of imprisonment was never even a remote possibility given that they agreed to a charge of assaulting a police officer in the execution of their duty. Because it turns out they didn’t think the assault so unserious so as to agree to a guilty plea to that most minor of all assault charges.

Oddly, I’ve had (I think) three conversation over the last few weeks with different people about Gell-Mann amnesia. It seems I am as prone to it as everyone else. Thankfully, I think I admitted that it all my conversations about it. It’s the observation that when the news media cover something you are intimately familiar with, you will almost always notice glaring errors, but when you read or watch a different news story, even in the same paper or bulletin, about an issue with you are unfamiliar, you will forget what you just noticed, and assume the basic facts in the story are true.

Police did not agree to reduce a more serious charge to a charge of assault  or assault on a Police officer, they agreed to reduce a more serious charge to a charge of aggravated assault. The maximum penalty for assault on a police officer is six months in prison. The maximum penalty for aggravated assault is three years in prison. It is not clear, but my current guess (which I base on a Herald editorial I’m about to criticise) is that the most serious charge originally faced was probably aggravated injury.

What of that editorial? I shouldn’t be too harsh, as it was the reporting that made so little sense, that it encouraged me to seek the judgment early in the process of composition. The way charges are described in charging documents, which tends to make it into on-the-fly sentencing notes as here, bugs me a bit, and can be profoundly misleading to a lay reader trying to match it up with a particular offence. The judgments describe the offending as the Herald did, and I suspect the Herald was led into error on that basis. But the judge also mentions the section under which Delegat was charged: section 192(2) of the Crimes Act.  The heading of section 192(2) of the Crimes Act is "Aggravated Assault". That should be a clue that the Herald editorial makes a couple of exceptionally odd statements:

He first appeared in court five days after the attack when he was charged with the aggravated assault of Kane, an offence carrying a maximum sentence of seven years' imprisonment.

Aggravated assault carries a maximum sentence of three years’ imprisonment.

The Editorial continues:

…the case went back to the Dunedin District Court in June, when the aggravated assault charge was downgraded to assaulting a police officer with intent to obstruct her in the execution of her duty. The offence carries a three-year jail term.

The charge of assaulting a police officer acting in the execution of their duty carries a maximum of six months’ imprisonment. But the words do also describe the elements of the offence of aggravated assault. Such double-ups aren’t that unusual: the elements of summary offences act common assault (max 6 months) and the elements of the charge of common assault in the Crimes Act (max 1 year) are identical. But nonetheless, it is a charge labelled as aggravated assault in the the Crimes Act that Nikolas Delegat was convicted of.

The misunderstanding permeating and emanating from the media lead to a cartoon (I'm told by Moreu, and appearing in the Timaru Herald), which is particularly unfair to Minister of Police Judith Collins.


The Minister of Police shouldn’t be commenting of sentences before the appeal period is up in the first place, but criticising a Minister for not holding firm on the proposition that people who assault cops should be charged with the more serious aggravated assault charge (rather than the less serious assault on Police charge) is ridiculous when you are discussing a case where the person pleaded guilty to a charge of aggravated assault.

So, news media, you suck at this. Why, in the biggest criminal justice story in New Zealand for several days, did not a single news article (well, not a single news article accessible on google news at any rate) mention what the person at the centre of it was actually convicted of? Several news articles mention both Nikolas Delegat and “aggravated assault”, but only ever in the context of it being the charge he originally faced, which appears not to be true..

Stuart Nash, you suck too, assuming that the quotes from you in this Herald article is accurate (and, because I already seem to have forgotten what I’ve just written, my assumption is still that it is). First, you shouldn’t really be calling on the Government, and especially the Minister of Police to interfere with a prosecution, which you are reported as doing here:

"The Prime Minister and the Police Minister must come out and condemn the sentence as totally inadequate and state that Crown Law will appeal. This would send a very clear message that this type of behaviour against police will not be tolerated by our communities and offenders will be punished accordingly."

But mostly because, in light of the actual facts in this case, this a is a monumentally stupid criticism to be reported as making after someone has been convicted of aggravated assault:

"The proper charge for punching a police officer is not plain assault, but aggravated assault, which includes attacking an officer in the line of duty and carries a maximum jail term of three years."

And, of course, I suck too.


The Spinoff: Offensive and Inaccurate? When proof of accuracy isn't enough to prove accuracy

The Press Council has released a decision on Hayden Donnell’s article on The Spinoff about racism on Radio Sport. As part of that article, Donnell embedded a tweet of his in which he asserted that sports commentator Miles Davis, “must have set a record for 'public homophobia without getting fired'.”

Davis complained about this, saying it was wrong and offensive in the articles assertion that he was homophobic.

The Press Council upheld his complaint.

The Press Council does not actually say which of its principles the article breached. This would have been helpful. First, the Press Council Principles, unlike the standards issued by the Broadcasting Standards Authority, don’t actually include a rule against being offensive. Second, the basis for the finding is not that Mr Davis was not homophobic, but that the “article did not include any evidence of Davis being homophobic”. It is not immediately apparent which principle requires an article to contain evidence for factual claims, as against merely having factual claims, but there seems to be one.

During the complaints process, The Spinoff relied on both the evidence it had included in the article, and also a range of other material it said showed what it had written was true. Davis disputed that the examples included in the article supported a claim of homophobia, and also said that nor did the additional examples provided subsequent to publication.

The Press Council agreed with the first part: the particular examples used in the article did not prove homophobia, but it disagreed with the second part. It would not have found that The Spinoff’s article was inaccurate and offensive had those other examples been used in the article.

This is just weird. The Press Council have said that for a claim to be accurate, it must not only be accurate, and provably so, it must be both accurate and supported by evidence that is included in the article itself. I find myself wondering what other true claims carried in news media will now be inaccurate and offensive because, while being true, and while the person making the claim has evidence they are true, not all of that evidence is included in the article itself.

How do you prove that John Key is the Prime Minister? I’m not sure, but the Press Council may well consider it inaccurate (and offensive!) to say so in an article without offering proof.


It’s Carter/Docherty Day; or three short – and wholly unrelated – things

I’m big on making sure voters know how to make the best use of their votes at elections, so last week I went along to the Transparency International Mayoral Forum.

After short-opening statements, the candidates were asked about governance, and avoiding corruption, and then they opened up for questions from the floor. I got to ask the last question of the evening, and think the answers are worth reporting. My question was along the lines:

Wellington uses the STV voting system, which means voters get to rank the candidates. I assume you all want my first preference, whom do you recommend I should give my second preference?

I got the biggest laugh I’ve had in years, and while Helene Ritchie, Andy Foster and Justin Lester all quickly declined to answer, both Nicola Young and Nick Leggett did (Jo Couglan had already left to another engagement).

Nicola, who’d used her speech to talk about support for openness, said she felt that she should be open with voters, and recommended that people give their second preference to Nick Leggett.

I’m not sure Nick was expecting that, but he replied that he returned the favour. I had thought this was intended as semi-humorous, but he confirmed on Twitter the following day that Nicola Young has his second preference.

I welcome this sort of candour from politicians. I’ll be voting for everyone, although in what order, I’m still not sure, but this sort of information from candidates is very helpful in understanding where everyone fits.

In Australian elections, which also allow voters to rank candidates, parties will formally declare which candidates from which other parties should get later preferences. People even stand outside voting places handing out “how to vote” cards on behalf of candidates, listing how to vote for all the candidates in rank order if you support a particular candidate.

I will never know a lot about candidates for local office when casting my vote, so information like this is useful. I perhaps also could have helpfully asked whom they would recommend I rank last :-).

This type of information is likely to give voters a better understanding of the interactions and alliances, as well the real views of candidates on issues important to them; much more than stock answers about the importance of consensus or transparency ever will.

While there will be reasons to vote for different candidates at general elections, generally the most important and useful information for most voters is the name of the party they’re standing for. In local elections, where parties have less involvement, this is a good proxy. And if I do decide I like the policies of a particular mayoral candidate, well, they’re probably in a better position than I am to know which candidate other than them is closest to their positions, and thus deserving of my back up vote.

It would be especially helpful to have mayoral voting recommendation from candidates for local council seats, who get even less media scrutiny. If you’re heading along to a candidates forum this year, I encourage you to ask the candidates their recommendations for the other races.

The Long Long Holiday

On a wholly unrelated note, I recently finished watching The Long Long Holiday on Netflix, and cannot recommend it more highly. It’s a 10-episode French cartoon (English dubbing optional, and oddly grouped as five episodes on Netflix) about two children who find themselves on holiday with their grandparents in Normandy when World War II begins. It’s clearly aimed at families, and is never particularly graphic, but it doesn’t shy away from the realities of the Nazi occupation. I’m deliberately avoiding spoilers, but it also has the best use of La Marseillaise since Casablanca.

Carter/Docherty Day!

And finally: Happy Carter/Docherty Day everyone!


The law to make it easier for airports to sell your stuff

National MP Nuk Korako has the luck of the draw earlier this week, when his ‘lost luggage’ member’s bill was drawn from the biscuit tin of democracy that the Office of the Clerk keeps to conduct the member’s bill ballot.

Bills, particularly amendment bills, can be hard to grasp. You might have to know what the old law says, or what a bunch of other laws say, before you really understand them. And with member’s bills, there’s no requirement or practice of providing the background detail that explains what they actually do. Andrew Geddis has already written about Nuk Korako’s Airport Authorities (Publicising Lost Property Sales) Amendment Bill, but I thought I’d look particularly at what this bill does and does not do.

Losing your luggage can be annoying. Isn’t it good to have a law to help passengers connect with the carry-on they forget to take with them from the plane, or the luggage that gets mis-directed?

It might be, but that’s not what this law is about. This law is about airports, not airlines.

If an airline sends you to Wellington, and your luggage to Christchurch, that’s got nothing to do with an Airport Authority. That’s the airline, and this bill does nothing to change that.

It’s in the airport authorities act, not the civil aviation act, so that probably makes sense.

What does the Airport Authorities Act require an airport to do with lost property?

Nothing. The Act imposes no obligations on Airport Authorities over lost property.

So this amendment bill will change that, and impose new requirements on airports when dealing with lost property?

No. The Act, even if amended by this bill, would impose no requirements on airport authorities in relation to lost property.

But isn’t this law change required so that airport authorities don’t have to advertise lost property in the newspaper, and can instead advertise it on their websites?

No. Airport authorities are not required to advertise lost property in newspapers. They are also not prohibited from advertising lost property on the Internet.

But wouldn’t it be a good idea for airport authorities to advertise lost property on their websites?

It might, but again, the amendment does not require this.

And second, no airport authority actually has a website. Most airports seem to, but airport authorities are different. They’re local authorities that deal with some of the regulatory stuff around airports.

What does the law actually change?

It amends the bylaw making powers of airport authorities.

So instead of imposing rules around lost property in the control of Airport Authorities in the Airport Authorites Act, those rules are contained in bylaws?

No. The bylaws made under this section are not rules imposed on Airport Authorities, but are rules made by airport authorities themselves.

But they’re required to have by-laws about lost property?

No. Airport Authorities are allowed to have rules around lost property, but they are not required to. Some do, and some don’t.

But those that do have bylaws have rules that require them to advertise lost property in newspapers?

No. Among all the Airport Authorities that have published bylaws that relate to lost property, none of them has bylaws that require them to notify lost property in newspapers.

Then how does this law or these bylaws help connect people with their lost property?

They don’t. The act, and the bylaws, and the amendments proposed to them have nothing to do with connecting people with their lost property. If an airport authority chooses to pass a bylaw about lost property, that bylaw must require the airport to keep that property (unless it’s perishable or valueless) for three months, but that’s it.

Most airports probably have lost property departments. They probably try to connect people with their stuff, but the act does not require them to do any of that, and the amendment isn’t proposing to change that.

But aren’t there requirements to advertise lost property somewhere to let people know what’s been found?

No. The act does provide that airport authorities can (if they want to) make bylaws around advertising, but these have nothing to do with connecting people with their lost property.

Well, what are the advertising requirements about?

Again, there aren’t requirements about advertising in the act, and there is no requirement to have a bylaw that relates to advertising. Instead what the act does is provide that, if, an airport authority chooses to have a bylaw relating to lost property, and chooses to have that bylaw provide that the airport authority gets to sell lost property it finds, it must advertise, in a local newspaper, the auction that it will use to sell that property.

But wouldn’t an advertisement that some property is going to be auctioned help someone looking for something know that it is missing, and where they could find it?

It might, but the advertising is about the holding of the auction, even when all of this applies, there is no requirement to actually list what found property is to be sold off. The requirements are about the advertising of the auction itself.

Well, if it’s not about connecting people with their property, what is it about?

It’s an anti-corruption measure, designed to protect the public interest. Airport Authorities are local authorites, and if they are going to be selling stuff, we want them be able to get as much money for it as possible. If the auctions aren’t advertised, then someone involved in the process could let a mate know when the auction was, and they could buy up what’s for sale cheaply when no-one else turned up. They’d get a bargain, and the airport authority would get ripped off.

The section is largely based on the old Police Act, dealing with the auctioning of lost property handed in to police. Police auctions have always had to be publicised as well, because if they weren’t taxpayers would miss out. The money from Airport Authority auctions doesn’t go directly to the government in the same way as money from police auctions does, but the principle is similar.

So this law change is about changing the way lost property auctions can be advertised by airport authorities, and allowing them to advertise them on a website, instead of in newspapers?

No. Airport authorities are already allowed to advertise their lost property auctions on websites.

Well, what does the bill change?

It removes the requirement of any airport authority that chooses to have a bylaw dealing with auctions of lost property, to include in that bylaw a requirement for advertising in the auction in local papers, and instead allows them to advertise those auctions “in a fair and reasonable manner”. This might include advertising in a local newspaper, but it might not.

Who gets the money from these auctions lost property?

The airport authority gets to keep it.

So, Nuk Korako’s bill is not about reuniting people with their lost property, but about making it slightly easier for airport authorities to sell that lost property, keeping the profit?