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.]


Terrorism is already illegal

Prime Minister John Key was interviewed by One News Deputy Political Editor Michael Parkin on TVNZ's Q+A this morning, primarily discussing the role New Zealand may play in the campaign against ISIS:

Parkin: On the foreign fighters issue that you mentioned earlier there, you're taking some papers to cabinet tomorrow. What are the options here, what are you looking to change?

Key: So first cabinet tomorrow, and I'm taking a paper that would look at setting up some terms of reference that would say should we make some short term - under urgency - changes to the way we control the rights and authority in this particular area. So if you look at what's happening at the moment, you look at say cancellation of passports: at the moment you can cancel those for 12 months. It's not a criminal act in New Zealand to currently go off shore and fight for a terrorist group. In a country like Australia, it is. 

Now the view of the officials is that there could be deficiency in the current setting we have. Now all of that legislation is going to be reviewed. It has to start by the 30th of June 2015 as a result of some of the changes we made to the GCSB law and the Intelligence and Security Committee law last year. But that will take a good year to work its way through and what the officials are saying to us is that the settings that we've currently got in relation to passports but also in a couple of other areas potentially argue the case that change should take place on a much quicker basis. So we'll spell out those terms of reference tomorrow.

Parkin: So you're looking at a law under urgency to cancel passports for people wanting to be foreign fighters?

Key: So at the moment we can cancel them for 12 months, not necessarily for longer. At the moment we have very little rights if someone says they want to get up and go and fight for a terrorist group. So in Australia for instance it is a criminal act if you're looking to go and fight for a known terrorist group. Now to give you an example, last week there was a New Zealander, a dual passport holder Australian and New Zealand passport holder who had been detained as a result of the Australian law. Now let's say for a moment, hypothetically he went off to Syria and fought for ISIS and then returned: under Australian law it would be illegal, under New Zealand law it would not; so where is he likely to go? And the answer is he's far more likely to come to New Zealand than Australia. Then the question is, what domestic threat does an individual like that potentially pose?

Parkin: And so you'll have the power to arrest that person?

Key: Potentially we would have greater powers and potentially even powers to look at arresting someone under the view that they would undertake what would then be deemed to be a criminal act. So that's a very big step. I'm [not] saying we will take, but what I am saying is that we're going to ask cabinet tomorrow to consider the paper and then ultimately go and look at what are the areas where we think potential change needs to happen very rapidly.

You may have noticed the bits with added emphasis. That's because this is a fact check, and those claims are false.

A New Zealander who fights for ISIS commits a serious crime against New Zealand law. They can already be arrested, they can be charged, and depending on exactly what they did while a member of ISIS, can potentially be imprisoned for life.

The Terrorism Suppression makes participation in a terrorist group an offence. Here's something I prepared earlier, but in short, you illegally participate in a terrorist group if you act in a way that enhances its ability to commit or participate in terrorist acts. While there isn't any New Zealand case law that addresses what this means, it seems to me to be a very low bar. Even if all you're doing is making the sandwiches, you're probably still guilty of this offence (the legal issue that prevented participation charges arising from the Urewera raids wasn't whether there was participation, but whether the group that had formed was a terrorist group, which I'll address with respect to ISIS/ISIL later). Participating in a terrorist group carries a maximum penalty of 14 years imprisonment.

The hypothetical New Zealander John Key describes isn't just making the sandwiches, however. The Prime Minister instead describes people fighting for ISIS. Fighting with a terrorist organisation is clearly enough to constitute participating in that organisation. And depending on what that fighting involves, the charge might be more serious. If that fighting involves:

  • trying to kill or seriously hurt people;
  • in order to induce terror or force governmental action or inaction;
  • in order to advance an ideological, political or religious cause

Or if that fighting involves:

  • trying to kill or seriously hurt civilians
  • during an armed conflict;
  • in order to induce terror or force governmental action or inaction

Either of which most people would think was being described when the Prime Minister discusses someone who "fought for ISIS". Then what that person is doing isn't just participating in a terrorist group, but is committing a terrorist act, and can face life imprisonment.

While most of our criminal laws only apply to actions in New Zealand, both the offence of committing a terrorist act and the offence of participating in a terrorist group have extra-territorial effect, meaning that if you are a New Zealand citizen, you are breaking the law and can be charged in a New Zealand Court wherever you are when you commit a terrorist act or participate in a terrorist group.

The offence of committing a terrorist act is committed any time a terrorist act is committed, but there is an additional element of participation in a terrorist group. The group you're participating in must be a terrorist group. This is the aspect that seems to have troubled the Solicitor-General when he declined permission to charge those arrested during the 2007 raids.

The Terrorism Suppression Act allows the government to designate terrorist entities. While New Zealand has not designated Islamic State (or ISIS or ISIL) as a terrorist entity, this is because it doesn't need to. Under the definition of designated terror entity in section 4, New Zealand automatically includes what we term United Nations listed terrorist entities on its list. UN listed terrorist entities are those organisations designates as such under UN Security Council resolutions 1267, 1333, and 1390, which relate to the Taleban and Al-Qaida.

The UN helpfully provides a list. And the Islamic State is on it. And just to be sure, the New Zealand Police have a list as well (.pdf). And ISIL is there too: in both places, listed as an alternative name of Al-Qaida in Iraq.

Strictly speaking, given that there is no doubt that ISIS commits terrorists acts, it isn't necessary for it to be listed, as the law applies to unlisted terrorist groups, if you can prove they are terrorist groups. But if the Prime Minister is unsure whether the UN designation is sufficient, and he wants to absolutely certain that New Zealand could arrest returning ISIS fighters, he doesn't need a law change, especially one under urgency, he could simply exercise his powers to designate ISIS as a terrorist entity.

We do not know exactly what the Government is considering doing in its urgent review of the law around foreign fighters. Tomorrow's post cabinet press conference may not enlighten us further. But if we are told that a law change is needed in order to arrest New Zealanders returning from fighting for ISIS, we are being misled.

New Zealanders who fight for ISIS break the law. They commit serious crimes over which New Zealand asserts extra-territorial jurisdiction, and can already be arrested, detained pending trial, and locked up for long prison terms when convicted.


Election 2014: The Special Votes

We have a provisional result, and now await the official result after special votes are counted. Special votes are:

  • those cast overseas;
  • those cast on polling day by people voting outside their electorate;
  • those cast by people who enrolled after the printed electoral roll was closed;
  • those cast by people on the unpublished roll; and
  • those cast by people who think they’re on the roll, but aren’t (these votes don’t count).

The final result is due on October 4.

At the last election, I conducted a quick analysis of the provisional results to try to determine how the special votes might change the makeup of Parliament. I wasn't sure that the time whether it would work, but I was pleased with how accurate it was.

I have no particular reason to believe that the effect of special votes will, at this election, mirror the effect in the 2011 election. The advance votes certainly didn't. But we have little else to go on.

That said, adopting the same method I used last time, based solely on how special votes broke in 2011, along with the Electoral Commission’s estimate of the number of special votes at this election, I predict the following final result:

  Preliminary   Estimated  
National 48.06% 61 47.24% 61
Labour 24.69% 32 25.05% 32
Green 10.02% 13 10.50% 13
New Zealand First 8.85% 11 8.52% 11
Māori Party 1.29% 2 1.38% 2
ACT 0.69% 1 0.68% 1
United Future 0.22% 1* 0.21% 1*
Conservative 4.12% 0 3.92% 0
Internet MANA 1.26% 0 1.38% 0
    121   121

That's a pretty boring table, as it happens. If the projection holds then, unlike in 2011, it seems like there will be no change. No party does well enough on the specials to take a seat of another party.

In 2011, the Green Party did ~38% better during special votes than it did on the preliminary count, and the National Party did ~13% worse than on the night. That was enough for the Greens to take a seat off National. If the same happens this time, it won't be. For the Greens to gain a seat on the special votes this time, their support among special votes would have to be ~42% better, or National's ~16% worse (or some combination of the two). Could this happen? Sure. But based on the information we have, it's not nearly as likely this time 'round.

In 2011, the Greens were closer to get that extra seat that they are this election. They have more ground to make up this time, and no other party in contention historically does well enough on the Special votes to make up the gap they face either. History suggests there will be no change this election.


Election 2014: the no threshold counterfactual

As I have done on election night of the last two elections, I present below the New Zealand House of Representatives, had the election been conducted with no threshold: 

National – 57
ACT – 1
United Future – 1

– 5

New Zealand First – 11
Maori Party 
– 2

Labour – 30
The Greens – 12
Internet MANA – 2

(total 121 MPs)

Obviously, if the rules were different, the vote would be different. I make no claim that this would have happened (almost certainly, it would not have), but I think it's interesting to look at it anyway.


Crown appeals in criminal cases

While the Crown has a lot of advantages in the criminal justice system - the resources and powers of the police foremost - many aspects of the system, are tilted in favour of a defendant - for example, the requirement that the Crown prove charges beyond reasonable doubt before there is a conviction.

Another part of the criminal justice system that has long favoured the defence is the appellate system. This isn't to say appealing is easy - once a conviction has been entered, the courts are very reluctant to interfere - but defendants, at least, have a right to appeal, and as a general rule, the Crown does not. If you're acquitted, that's almost always the end of it.

We have changed the law around this in recent years. We have allowed the Crown to reserve a question of law during a trial, a procedure that saw George Gwaze face two jury trials, resulting in not guilty verdicts both times.

We also created a limited power for the Crown to appeal where they think that a judge got the law wrong in throwing a case out before it gets to trial, whether by discharging the accused, or by staying a prosecution. This came up recently in the Red Devils case, where Justice Simon France had  granted a stay of prosecution after police forged court documents to bolster the credibility of an undercover officer. The Court of Appeal overturned that stay of prosecution, and the case is presumably going to trial.

And, for a while now, the Crown has been able to seek permission from the Court to appeal against sentence. It doesn't do this often - the decision is always made by a senior lawyer in the Crown Law Office, not even Crown Solicitors - but it seems to be doing it more often than it used to (I haven't actually OIA'd to check whether this is true). This has come up recently, with the prosecutors of those who assaulted Stephen Dudley asking the Solicitor-General to appeal the decision of the High Court to enter discharges without conviction.

A decision to discharge without conviction is different from a decision to discharge someone before trial. The power of the Crown to appeal a discharge before trial does not allow the Crown to appeal a discharge without conviction. A discharge before trial involves a judge throwing out a case (usually because there is insufficient evidence to establish one of the elements of a charge), a discharge without conviction is something that happens in place of sentencing.

The Crown can challenge a discharge without conviction. It has done it in some high profile cases, including, for example, "the comedian". However, it does not do this by an appeal, but by judicially reviewing the decision. The Crown can appeal a sentence, but a discharge without conviction isn't a sentence and without a statutory power to appeal, you can't appeal (I looked at an example of this with John Banks' judicial review).

Which brings us back to those who assaulted Stephen Dudley. The prosecutor asked the Crown to consider appealing or reviewing the decision. The Crown's decision has been reported in a number of different misleading ways. It has been stated that "appeal bid fails", and that an appeal has been "denied".

But there has been no appeal. The Crown does not have the power to appeal a discharge without conviction. There can also be no judicial review. The Crown can sometimes judicially review a decision to enter a discharge without conviction, but there is a very important distinction between the cases where it can do that, and the case here, of the assault that preceded the death of Stephen Dudley. The discharges without conviction that can be judicially reviewed are those entered by District Court judges. And because the assault charges involved here started as manslaughter charges (which were dropped when the Crown accepted it couldn't prove what caused Stephen's death), the case was heard in the High Court. And you can't judicially review a High Court Judge.

This was not a case where the Crown decided not to appeal, or decided not to review a decision it disagreed with, it was a case where it realised it had no power to do that even if it wanted to.

I'm not convinced that the law changes extending appeal powers to the Crown were necessary or good. But I can't see the law in this case as anything other than an anomaly. If the Crown can seek leave to appeal a sentence imposed by a High Court Judge, the distinction that means it would be wrong for it to be able to seek leave to appeal an order imposed in place of a sentence eludes me. I am not sure I disagree with the decision of Justice Winkelmann to discharge the two people who admitted assaulting Stephen Dudley without convictions - it seems to be a decision that was open to the judge in the circumstances - but if the Crown thinks she got it seriously wrong, I can't see a proper basis to prevent them from taking the case to the Court of Appeal. The law does not currently allow this, but if the Crown is to be permitted to seek leave to appeal a sentence, then the law should allow them to challenge a discharge without conviction as well, whether entered in the District Court or the High Court.