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air safety

May 3, 2013

Attorney-General should be charged with aviation offence

It is grossly unfair for the first law officer in Australia, the Federal Attorney-General Mark Dreyfus, to be allowed to apologise his way out of an

It is grossly unfair for the first law officer in Australia, the Federal Attorney-General Mark Dreyfus, to be allowed to apologise his way out of an alleged refusal to turn off his mobile smart phone on a Qantas flight.

Ordinary people would have to defend their actions in court.

Ordinary people whether innocent or guilty, are not allowed to apologise for alleged offences against aviation law any more than they can apologise their way out of prosecution after being pulled over for speeding through school zones or other alleged offences.

And the law of the Commonwealth doesn’t actually differentiate between ordinary people and cabinet Ministers.

It is based on the principle that we are all equal before the law.

Mr Dreyfus has to uphold the law, even if it could be argued to be bad, silly or inappropriate law. Not apologise his way out of his fundamental obligations, which is an option not available to the people of lesser importance than the first law officer.

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34 thoughts on “Attorney-General should be charged with aviation offence

  1. 2353

    If you are suggestion that *EVERYONE* who misbehaves on an airliner is prosecuted to the full extent of the law – yes he should be as well (and we all know that doesn’t happen; the two talking heads on ABC Breakfast this morning admitted to the same “crime”).

    If this isn’t the case, and you weren’t in the next seat to confirm the exchange first hand, you are not in a position to make an accurate judgement and I would have expected better here than following a beat up by Australia’s tabloid media.

  2. Ben Sandilands

    He is the first law officer of Australia. In statements read on ABC News 24 this morning Dreyfus admits to checking his emails during takeoff, and has repeated his apology.

    He isn’t ignorant of the law. This is not a beat up. It is about the first law officer of Australia admitting to an offence and no action being taken.

    How much more obvious do you need this to be?

    Successive Attorney Generals and Transport Ministersare on the record as saying that Australia’s strict aviation laws will be fully enforced.

    That has to include the A-G. Yes or No?

  3. Dain Bramaged

    Yes, he should resign today.

    Now back to reality… Is there single incident on the record that was proven to be caused by mobile phone use on board. No one switches off way more powerful cell towers around airports during take-off and landing after all. Or is it another urban myth similar to one that mobile somehow can cause fire on petrol station which never ever happened and yet we signs on most of petrol station prohibiting cell phone use.

  4. Ben Sandilands

    The reality is that ordinary people have to obey the laws, even if they are silly, which in this case they are.

    Dain, you and I would get arrested and charged if we behaved the way the first law officer of the Commonwealth of Australia admits to behaving on a Qantas flight.

    As a result of any conviction, we would be banned from entering the US for life.

    If the first law officer has such a contempt for the law he is supposed to administer, he might perhaps, apply his mind to changing the law.

    But in the meantime, he should be equally accountable for obeying the law as the rest of us.

  5. Achmed

    Of course he should be prosecuted. Ignorance is no defence under the law and he of all people should know the law in relation to this.

  6. comet

    On landing, why didn’t Qantas later take Dreyfus from the aircraft and confine him to an airport bus for an hour or two? Or does Qantas only do that to Aboriginal people?

  7. Dain Bramaged

    Ben, the first and foremost question is it criminal offense to use mobile phone on the plane or disobey orders of cabin crew at all. I could not find either, would anyone be willing to step in and help ?

    On a positive note from now on you can argue in court that you can issue a statement to press and apologize on TV and cite news article a precedent.

  8. Theoddkiwi

    Dain 7
    It is a criminal offence to disobey an instruction from cabin crew in an aircraft. Be it going to the toilet during take off, not wearing your seatbelt, using your phone or pulling down the window blind when instructed to open it. If the crew give you an instruction you are legally obliged to follow the instruction. He should get the same treatment as any other passenger who has disobeyed in instruction.

    Regarding us of electronics during take off and landing is a precaution against the unknown. All it takes is for a damaged cable in the aircraft wiring and there is potential for interference with the aircraft systems. Particularly radios. It’s a precaution, clearly your happy to take the risk however small.

    Conspiracy alert! The Ansett NZ dash 8 that crashed near Palmerston North had some question marks regarding the possibility that a passenger using his phone during approach contributed/ caused the reported deflection of the radio altimeter instrument just prior to the aircraft crashing into a hill. Yes will never be proved but the coincidence that a phone was in use by a passenger and the crew reported instrument anomalies is concerning. Enough to say its a possibility.

  9. comet

    That mobile phone aboard the Ansett NZ crash was then used to guide rescuers to the crash site.

  10. johnb78

    “He should get the same treatment as any other passenger who has disobeyed in instruction.”

    Agreed – which as 2353 notes in the first comment is “a telling-off”. Are there even *any cases at all* of someone being prosecuted in Australia for not turning off a mobile phone on a plane? The only prosecutions I’ve ever read about are for people who have been abusive/violent/drunk at the crew.

    Hell, even the chap who pissed in the aisle on a Jetstar flight wasn’t prosecuted…

  11. Dain Bramaged

    Theoddkiwi

    I would like to see it as a link to specific document, preferably on commlaw if you don’t mind. I’m not saying you’re wrong, I just want to read it from official source.

    Also wonder if it is criminal offense to pull up window blind when instructed by overly lazy cabin crew to not to and whether use of photo equipment on board is prohibited by some State or Federal regulations as this as well apparently no-no now on board, just in case.

    And in regards of precaution against unknown I have very simple test in mind. Get 2000 (that’s like 10 times of possible number of phones on plane carried by pax) worst Chinese phones built with no existing safety standards in mind, 10 dollars a pop. Load them on empty plane, turn them on and try to take off and land with all of this RF emitting junk 10 times. Publish results. Would cost next to nothing for Boeing. No unknowns.

    Funny enough cell base stations emit hundreds times more RF (you really would not enjoy being within meter from one outside of shielded cage let alone touch it) and all this power on exactly same frequencies freely penetrates aircraft body to reach mobile phone inside without any apparent issues or impact on electronic systems. And yes, it does penetrate aircraft body even if all phones inside turned off, but somehow this is not an issue.

  12. Allan Moyes

    Once upon a time, Ministers of the Crown would resign over breaches of rules or regulations, whether it be aviation related or anything else. I seem to recall a teddy bear incident or some staff member filling in a minister’s customs form wrongly. Both ministers walked. But that was in the days when the “Westminster” system stood for a sense of integrity – something long missing at Westminster itself, far less any Australian parliament.

    Nowadays they treat the job as a right and wouldn’t resign if found responsible for unnatural acts with an in-flight magazine! Joe and Jane Public are generally beyond thinking about except for that window before an election.

  13. Peter Murphy

    I wouldn’t normally say this, but this is “no confidence motion” territory.

  14. timjack Elton

    I agree with you Peter, flight crews are always under huge pressure to enforce the rules whether they like it or not. I guess the ministers alleged actions don’t apply as they would for you or I, which created a fundamental problem when a crew member is obliged to confront a similar issue in the future. It invites the response “if Attorney-General Mark Dreyfus can get away with it, then why can’t I”

    I find the response from Qantas “does not comment on individual customers” a little annoying, I am sure they would comment if you or I were caught doing the same..

    Some comments above have criticised Ben for posting this story, I say good on him regardless of the story being published in a news Ltd tabloid, something happened, and it does redraw the “line in the sand” for applying the rules.
    I trust the staff involved in this issue have the support of the management internally, a classic “damned if they do, damned if they don’t” situation all crews are faced with daily.

  15. Theoddkiwi

    Civil Aviation Act 1988

    24 Interference with crew or aircraft
    (1) A person commits an offence if:
    (a) the person does an act; and
    (b) the act:
    (i) interferes with a crew member of an aircraft in the course of the performance of his or her duties as such a crew member; or
    (ii) threatens the safety of an aircraft or of persons on board an aircraft.
    Penalty: Imprisonment for 2 years.
    (2) A person must not tamper with:
    (a) an aircraft; or
    (b) an aeronautical product that is of such a type that tampering with it may endanger the safety of an aircraft or any person or property;
    if tampering with it may endanger the safety of the aircraft or any person or property.
    Penalty: Imprisonment for 2 years.

    As this is also be interpreted as failing to comply with instructions as you become a threat to the safety of the aircraft. So being told to turn off electronic equipment is an instruction which you must comply. It’s not optional.
    Secondly as aviation authority have determined that electronic equipment can possibly interfere with the aircraft systems they are supposed be turned off. Failing to turn them off means you are threatening the safety of the aircraft.
    So he has commited the federal offence in two ways.

    I understand the fact that electronic devices will probably not interfere but really how hard and how much of an inconvindnce is it to turn off you phone for take off and landing? Is that 40 mins so important?

  16. Mike Smith

    @JohnB78: Gawd, I’m glad I never fly Jetstar.

    Realistically, if the phone is in flight mode, its safe. But current laws say no electronics during takeoff and landing, so that’s what you do. They aren’t really ‘off’, BTW, just in standby.

  17. Mike Smith

    @Peter: At worst, he’d lose his ministership, not his MP position, so it would not affect the numbers in the house.

  18. Dain Bramaged

    Theoddkiwi

    Thank you.

    “Secondly as aviation authority have determined that electronic equipment can possibly interfere with the aircraft systems they are supposed be turned off. Failing to turn them off means you are threatening the safety of the aircraft” – sorry, but there’s fine line between “possibly” and “threatens”. So to jail one prosecutor will actually have to prove that this action was threatening safety of aircraft.

  19. Harry Rogers

    Dain Bramaged 18

    What intelligent and perfect common sense comments you make. However this is the Airline and Airport industry and common sense just doesn’t fit into the parameters.

    Heaven help us all if everybody questions the stupidity of the security systems in aircraft travel these days! Dearie dearie me!

    However please don’t let the “usual suspects” subdue your contributions.

  20. COTOS

    I have always, always, wondered if the ‘turn off mobile phones’ in the cabin was more for pax talking while missing safety demo info, or being distracted when actual emergency quickly unfolds, or even because of pilots being distracted by that annoying ‘pip pip’ over the radio when phones are acquiring signal as we all heard on our car stereos before, which might explain his worships’ indifference to safety of flight.
    Which also made me wonder about no mobile phones at fuel bowsers, how can everyday things be so risky after the same fuel has been thru much worse during manufacture and transport, so I thought it is more likely the rare chance people on phones get distracted and drive off without removing fuel hose and cause spillage and fire? ok conspiracy theory complete, its better than watching the Voice right now anyways.

  21. Dain Bramaged

    Harry Rogers

    Appreciate sarcasm but let me point to one thing – all objects that are clearly identified as ones that threaten aircraft safety are listed on red background billboards at every airport and not allowed on board. Nether mobile phones nor laptops are amongst them. Which does not serve as excuse to not turn them off once requested bit it’s just obvious that there won’t be any criminal prosecution if you don’t.

  22. Ben Sandilands

    On learned advice the Federal jurisdiction doesn’t need to, nor would, inquire into whether the device was a danger to aviation.

    It only needs to determine if the law was broken or not. Good law, bad law, is not its concern. It may be of course to an appeals court. But it would be unusual in such a case for costs to be awarded against the Crown, in the event of a successful appeal. You might ultimately win, but lose big time.

    But if the defendant appeared in casual clothes, unrepresented, the chances of conviction with a suspended sentence or good behavior bond would be a plausible outcome after being taken into custody by Federal police on arrival at the airport.

    Aviation and safety are words that weight heavily in certain courts. If any of us had been in this position we would not have had an apology accepted by apprehending officers, which of itself would be ‘irregular’. We may, just, have been subsequently released without charge if we were lucky, had no prior convictions, spoke poor english or had never flown before. And as is stated in the conditions of carriage attached by the airline, in the very fine print, it may have banned us from future carriage for a period it determined, which in turn could be litigated, at considerable cost.

    I think this incident is in its entirety ‘irregular.’

    Breaking the law is what courts punish. It doesn’t matter if its stupid or not.

  23. johnc47

    Dain Bramaged 18

    Given that CASA is increasingly moving towards greater “Strict Liability” based prosecution “possibly” and “threatens” would be your responsibility to demonstrate that such a device isn’t an issue if they decided to take issue with your indifference to their rules
    .
    Ultimately it would be a far more expensive exercise in money and time than just switching the device off if you decided to take a stand on the aircraft.

    That aside, I’m a private pilot with a small plane. It is very easy to have a mobile, in the front seat, move the ADF RMI around 10-30 degree’s, interfere with the intercom and distract.

    Whilst I agree that they wont, probably (given the state of emi shielding etc) do anything, I’m not “personally” prepared to risk anything on this matter as my pockets aren’t deep enough. Perhaps the AG thinks he has top cover to justify his actions and a nations pockets behind him to battle through if it does go that way.

    Given the tight approach and departure corridors and velocities, mass and heights for the commercial environment – for the sake of a few minutes, would you be prepared as a passenger to make that unequivocal statement that your mobile isn’t going to be ground zero for a hole in the ground and their is no absolute scientific data to suggest else wise.

    Perhaps a likely scenario; Night in cloud performing a tight NDB approach in a Regional airline Piper Navajo. Your mobile rings, The pilot flattens out the turn as the needle says too, and suddenly your converging on traffic on the other parallel runway. Not hard to imagine.

  24. Theoddkiwi

    From a technical point of view to each aircraft type and each component would have to be tested in a lab for electronic equipment use restrictions to be lifted. Now lets add that that testing would have to simulate all the various EM and RF that can be emitted by all the various devices avalable.
    Air New Zealand now have some A320s with inboard cell units but use is for text messaging. Virgins new IFE system is wifi. The testing they have done for these systems is significant and extendive and places restrictions even on what components can be fitted when repairing the aircraft.
    But regardless of all the testing they have done, use of electronics during take off and landing is still restricted. It’s just too sensitive and critical phase of flight to add an unknown risk factor.

  25. Harry Rogers

    Dain Bramaged 21

    Perhaps my sarcasm is too encrypted I actually am agreeing with you.

    Ben,

    “a law is a law” . Thank goodness over the centuries people have not taken this attitude as they only way to change a law is to protest publicly and gain enough support. You certainly wouldn’t have the ability to do what you do if you took this attitude throughout history.

    To the rest, the use of FEAR is a the great aphrodisiac of dictators.

    Remember laws are just bits of paper just like money.

  26. waterboy

    Yes, mobile phone use does occasionally cause interference with various aircraft components, be they navigation through to system actuating systems, such as hydraulic actuators.

    The current generation of airliners have not been designed or certified to operate concurrently with these devices, hence the limited approval of only specific transmitting devices has occurred so far.

    The ‘beauty’ of EMI is of course, the affected systems always operate normally once on the ground and the offending device has been removed.

  27. Ben Sandilands

    Harry,

    Suitably wounded I accept your point.

    Of course bad laws should be changed. But I can’t support breaking the law to do so. (Even though I have done so, in my wild youth, with a degree of recklessness.)

    Nor could I recommend that those of us not part of the power elite like the Attorney-General offend bad law in the confines of an aircraft or the airport on arrival, where we will be apprehended, possibly convicted, and prevented from lawfully entering the US for the rest of our lives, and for those of us with the time that makes it relevant, wear a criminal record.

  28. Dain Bramaged

    johnc47 23

    No it won’t be my responsibility. Read about concept of presumption of innocence – “The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof.”

  29. Geoff

    Went on a cruise recently and was fascinated listening to a talk by one of the navigators. Seems that a lot of their equipment is very similar to what aircraft use.

    Had to navigate very narrow channel through Moreton Bay and be within inches of the correct track under the Gateway Motorway Bridge to avoid knocking it down

    At no stage did anyone ask for the (approx) three thousand mobile phones onboard to be switched off.

  30. Harry Rogers

    For those who despise acronyms:

    EMI -Electro Magnetic Interference

    ADF -Air Direction Finder

    RMI- Radio Magnetic Indicatory

    BSBB- Bull S.. beats Brains

    NZ- Land of sheep

    Is it Attorneys General or Attorney Genrals?

  31. fractious

    I agree with the assertion that anyone in high office who fails to act as they would have others act deserves all the public humiliation and enmbarrassment they get, particularly public office that involves the law.

    But while the A-G’s office confirmed an incident occurred, even News Limited acknowledged that “Mr Dreyfus denies that he ignored repeated requests to switch his phone off.” Beyond that, I find it powerful curious that the most popular references to this incident on google are all News Limited sources (news.com.au, the Daily Terror, The Oz) or shoutback radio “hosts” (3AW, 2UE etc).

    Far be it from me to impute political motives in the so-called “free” press, but the cynic in me wonders if the perpetrator had been Mr. Murdoch or Ms Rinehart (or the CEO of whichever foreign mining company that owns half the country and makes a lot of money) whether the incident would have received quite the screaming banner headlines it got, or indeed any coverage at all.

  32. fractious

    Harry (30) –
    Attorneys General (also Governors General)

  33. Harry Rogers

    Thanks fractious always perplexed me those words.

    Read todays Courier Mail ( I get it delivered, they wont stop it, sucker for punishment, I want the easy cryptic crossword not The Guardian) and their response to an MP that clearly got up their nose. Full page devoted to justifying their place in society. Editors Fagan and his wife Madonna King and the other man proving that they are not prejudice!

    Thats why I consider these current children of the press deserve only my sarcastic contempt or is it contemptual sarcasm.

  34. discus

    Just because a ship or an aircraft has not had a problem whilst you were on board does not mean it can never happen.

    You could have 2 aircraft for all intents and purposes the same. One however has had wiring repairs.

    The systems where the repairs were carried out tested OK iaw the AMM, however the shielding on several cables were damaged during some other maintenance. This would not necessarily be picked up in an operational or functional test. Poor shielding or grounding may provide a path for stray RF into a system that should not have it.

    In short, it is not just having a mobile or other RF devices on a 100% serviceable aircraft. There maybe deficiencies in an aircraft system or wiring that may not be exposed until a source of RF at a certain frequency or even a harmonic of it is placed nearby.

    I for one do not wish to tempt Murphy any more than necessary.

    Is it really that hard to turn off your electronics for a few minutes? It is not as if they want your first born child.

    The minister should set a better example.

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