DPP v Offe

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: DPP v Offe (No 4) Citation: [2025] ACTSC 384 Hearing Date: 28 August 2025 Decision Date: 28 August 2025 Before: Mossop J Decision: (1) The oral application for a stay or dismissal of the indictment made by the accused on 26 August 2025 is dismissed. Catchwords: CONSTITUTIONAL LAW – SEAT OF GOVERNMENT – Application of Crimes Act 1900 (ACT) to Parliamentary precincts – where Crimes Act is a law of general operation – where no resolution of a House of Parliament disapplying the Crimes Act – where Presiding Officers of Parliament have powers of control and management over the Parliamentary precincts – where no inconsistency arises between that power and the Crimes Act – challenge to indictment rejected CONSTITUTIONAL LAW – SEAT OF GOVERNMENT – Prosecution of offences occurring in Parliamentary precincts in ACT Supreme Court by ACT Director of Public Prosecutions – where functions of ACT Director include conducting prosecutions on indictment whether or not instituted by the ACT Director – where offences occurring in Parliamentary precincts to be conducted in accordance with “general arrangements” between Presiding Officers of Parliament and the Commonwealth Director – present arrangements do not prevent current prosecution – challenge to prosecution rejected Legislation Cited: Acts Interpretation Act 1901 (Cth), s 21(1)(a) Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 22, 28, 29, 34(2), 48A, Pts IV, VA Crimes (Protection of Frontline Community Service Providers) Amendment Act 2020 (ACT) Crimes Act 1900 (ACT), s 29A Crimes Act 1900 (NSW) Director of Public Prosecutions Act 1983 (Cth) Director of Public Prosecutions Act 1990 (ACT) Parliamentary Precincts Act 1988 (Cth), ss 3, 4, 6, 10, Sch 1 Parliamentary Privileges Act 1987 (Cth), s 15 Supreme Court Act 1933 (ACT), s 20, Pt 7 Cases Cited: Rees v McCay (1975) 7 ACTR 4 Texts Cited: Commonwealth, Journals of the Senate (No 132, 28 February 1989) Parties: Director of Public Prosecutions Andrew Paul Offe (Accused) Representation: Counsel M Howe (DPP) Self-represented (Accused) Solicitors ACT Director of Public Prosecutions Self-represented (Accused) File Numbers: SCC 191 of 2022 SCC 191 of 2022 MOSSOP J: Introduction

1. On the second day of this jury trial, Mr Offe made an oral application. That application sought that the indictment be stayed or dismissed, or alternatively, that the prosecution be required to demonstrate the statutory basis upon which ACT Policing or the ACT Director of Public Prosecutions had authority to prosecute conduct inside the Parliamentary Precincts as defined in the Parliamentary Precincts Act 1988 (Cth). I have treated the application as going to whether or not there is some reason why the proceedings, on the present indictment, should be stayed or dismissed. This morning, the fourth day of the trial, Mr Offe indicated that he also relied upon the same grounds to challenge the jurisdiction of the court to hear the proceedings.

2. I heard oral submissions from the parties on those issues this morning.

3. Related to these issues but not specifically raised by the present application is whether or not, and if so to what extent, any provisions of the Parliamentary Precincts Act are relevant to proof of the two offences charged on the indictment, both of which allege a breach of s 29A of the Crimes Act 1900 (ACT) (driving at or near a police officer). One of the elements of the offence is that the police officer was “exercising a function given to the officer as a police officer”. The terms of the Parliamentary Precincts Act may be relevant to that issue and hence to the directions that are required to be given to the jury. That is an issue which I do not address at this stage, but it will need to be addressed at some stage prior to closing addresses in light of these reasons.

4. The written submissions provided by the accused at the time of his application identified that he sought the orders that he did by reason of the terms of the Parliamentary Precincts Act. He argued that, because of the operation of that Act: Any policing or prosecutorial action taken in respect of conduct within the precinct must therefore be shown to have been lawfully authorised, either by statutory power expressly conferred on AFP/ACT Policing or through delegation/coordination with the Presiding Officers’ authority.

5. Having regard to the way in which the argument was put, it is necessary to start with the terms of the Parliamentary Precincts Act. That Act defines Parliamentary precincts in s 4. Although the definition in s 4 is the means by which the area constituting the Parliamentary precincts is defined, the area described in that section is illustrated in the diagram in Sch 1 to the Act. The area is a circular area generally following the inner side of the road around Parliament House known as Capital Circle (or the arcs which it creates).

6. The Parliamentary precincts include the Parliament House forecourt, Parliament Drive, and a small part of the Commonwealth Avenue up ramp which connects with Parliament Drive on the northwestern side of Parliament House. It is the upper portion of the Commonwealth Avenue up ramp and the section of Parliament Drive near the intersection with that up ramp that is the location of the offences alleged in the indictment.

7. Sections 6 and 10 of the Parliamentary Precincts Act are the provisions relied upon by Mr Offe. They provide: 6 Control and management of precincts (1) The precincts are under the control and management of the Presiding Officers. (2) The Presiding Officers may, subject to any order of either House, take any action they consider necessary for the control and management of the precincts. (3) In respect of the Ministerial Wing in Parliament House, the powers and functions given to the Presiding Officers by subsections (1) and (2) are subject to any limitations and conditions agreed between the Presiding Officers and the Minister. ... 10 Prosecutions The functions of the Director of Public Prosecutions in respect of offences committed in the precincts shall be performed in accordance with general arrangements agreed between the Presiding Officers and the Director of Public Prosecutions.

8. The term “Presiding Officer” is defined in s 3 as meaning “the President of the Senate or the Speaker of the House of Representatives”. Mr Offe appeared to contend that, because of the control of the Parliamentary precincts given to the Presiding Officers, there was a limitation upon the capacity of the Australian Federal Police to charge him or for the ACT Director of Public Prosecutions to conduct the proceedings on an indictment against him and hence file the present indictment.

Consideration

Application of s 29A

9. The two charges on the indictment allege offences against s 29A of the Crimes Act. Section 29A(1) provides: (1) A person commits an offence if— (a) the person drives a motor vehicle near or at a police officer; and (b) the person knows, or is reckless about whether, the police officer is a police officer; and (c) the police officer is exercising a function given to the officer as a police officer; and (d) the person— (i) intends to risk the police officer’s safety by that conduct; or (ii) is reckless about risking the police officer’s safety by that conduct. Maximum penalty: imprisonment for 15 years.

10. The Crimes Act is a law of general application in the Territory. Notwithstanding that its terms are derived from the Crimes Act 1900 (NSW), it was, at self-government, “taken to be an enactment” and able to be amended or repealed accordingly: see s 34(2) of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act) as enacted. Section 29A was inserted into the Crimes Act by the Crimes (Protection of Frontline Community Service Providers) Amendment Act 2020 (ACT), an enactment of the Legislative Assembly. The Legislative Assembly for the Australian Capital Territory has a general power to make laws for the peace, order and good government of the Territory under s 22 of the Self-Government Act. That legislative power is subject to Pts IV and VA of the Self-Government Act.

11. Section 15 of the Parliamentary Privileges Act 1987 (Cth) provides: 15 Application of laws to Parliament House It is hereby declared, for the avoidance of doubt, that, subject to section 49 of the Constitution and this Act, a law in force in the Australian Capital Territory applies according to its tenor (except as otherwise provided by that or any other law) in relation to: (a) any building in the Territory in which a House meets; and (b) any part of the precincts as defined by subsection 3(1) of the Parliamentary Precincts Act 1988.

12. This provision was enacted to put beyond doubt the fact that laws of general application apply to Parliament House and its precincts, and to end the misconception that it is only for the Houses of Parliament to regulate or govern conduct in Parliament and its precincts. The provision follows the decision in Rees v McCay (1975) 7 ACTR 4, in which a Full Court of the Supreme Court expressly confronted that misconception. That was a case addressing a conviction for illegally parking on a public street directly out the front of what is now Old Parliament House. Fox J (with whom Blackburn J agreed at 9 and Woodward J relevantly agreed at 12) said at 7 and 8: The submissions in support of the making of an order to review are in essence two. The first is that the area where the car was parked and which was regarded as subject to the Motor Traffic Ordinance was within the “precincts” of parliament, and that the Ordinance could not therefore have any operation in respect of it. Reliance was placed on a proposition to the effect that the ordinary law of the land has no application in relation to Parliament House and its precincts. Parliament, it is said, can manifest an intention that particular laws should apply there, but otherwise it is for parliament (in the sense of the houses of parliament) and for it alone to regulate and govern what is done in Parliament House and its precincts. This is a misconception. Parliament enjoys certain privileges designed to ensure that it can effectively perform its function and there are some aspects of conduct concerning the operation of parliament into which the courts will not inquire. Certain courtesies are customarily observed. Parliament, through the president of the Senate and the speaker of the House of Representatives, and the officers of the parliament, controls the use of the buildings which it has for its purposes. Doubtless it can also control the use of the immediate precincts of those buildings, but arrangements about such matters are made in a sensible and practical way, bearing in mind the reasonable requirements of parliament. The fact is that there is no general abrogation of the ordinary law. It is not necessary for the effective performance by parliament of its functions that there be any such abrogation. On the contrary, it must be very much in the interests of members, in their corporate and individual capacities, that the ordinary law should operate. The fact is that there is no general abrogation of the ordinary law. It is not necessary for the effective performance by parliament of its functions, that there be any such abrogation. On the contrary, it must be very much in the interests of members in their corporate and individual capacities that the ordinary law should operate. No authority was relied upon in support of the submission. The fact is that the law respecting the privileges of parliament is itself part of the ordinary law. Part of that law is found in the Bill of Rights 1688. In a well-known passage, Stephen J. said in Bradlaugh v. Gossett [12 QBD 271 at 283]: “I know of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice”. R. v. Sir R. F. Graham-Campbell; Ex parte Herbert [[1935] 1 K.B. 594] is not an authority to the contrary. It proceeded on the assumption that the general law did apply in relation to the House of Commons at Westminster. The particular licensing laws, were, as it was said, inapplicable to the conduct of the refreshment department of the house. It was also held, and it may have been the principal ground of decision, that as the matters complained of affected the “internal affairs” of the house, the matter was one of privilege and the courts should not inquire or interfere. One reason given for this latter finding has often been repeated when considering the privileges of the House of Commons, namely that, as the House of Lords is the ultimate judicial authority, there would be danger that that house could become the arbiter of the privileges of the House of Commons. We are not in this case concerned with any question of privilege. So far as the court is aware, the parking arrangements which have been made, and which are enforced under the Ordinance, might have been made at the request of parliament.

Power of the ACT Director to prosecute

19. The other relevant provision is s 10 of the Self-Government Act. The reference to the Director of Public Prosecutions in that section is a reference to the Commonwealth Director of Public Prosecutions, a statutory office established under the Director of Public Prosecutions Act 1983 (Cth): see Acts Interpretation Act 1901 (Cth), s 21(1)(a). It is not a reference to the ACT Director of Public Prosecutions, a statutory office established under the Director of Public Prosecutions Act 1990 (ACT).

20. The present proceedings were commenced by an information laid by a police officer. The information was laid by Ashley Childs, a member of the Australian Federal Police, and the proceedings were committed to the Supreme Court for trial on 29 July 2022. The proceedings in the Magistrates Court were conducted by the ACT Director of Public Prosecutions under s 6 of the Director of Public Prosecutions Act 1990. The functions of the ACT Director include, under s 6(1)(a), “conducting prosecutions on indictment or summarily, whether instituted by the director or not”.

21. The functions of the Commonwealth Director are, under s 10 of the Parliamentary Precincts Act, required to be performed “in accordance with general arrangements” agreed between the Presiding Officers and the Commonwealth Director. The reference to general arrangements is such that any arrangements are not intended to be specific to an individual case. There is no requirement in s 10 for the Presiding Officers to consent to or otherwise control the institution of proceedings for offences that occur in the Parliamentary precincts.

22. There is nothing in s 10 which binds or otherwise affects the capacity of the ACT Director to conduct proceedings relating to an offence against a Territory enactment arising in the Parliamentary precincts. That is explained by the fact that, at the time of the enactment of the Parliamentary Precincts Act, the Australian Capital Territory was not self-governing and hence the only relevant prosecuting authority was the Commonwealth Director.

23. No implication can be drawn from the terms of s 10 that would qualify the power of the ACT Director to conduct proceedings on indictment arising from a breach of a Territory enactment occurring in the Parliamentary precincts.

24. An arrangement was in fact entered into between the Commonwealth Director and the Presiding Officers of the Parliament. That is an arrangement which was tabled in the Senate on 28 February 1989: see Journals of the Senate (No 132, 28 February 1989) at 1384. Even if it had any application in the circumstances of the present case, nothing in that arrangement would affect the capacity of an entity that was governed by it to bring the present proceedings and to proceed on the current indictment.

Conclusion

25. For those reasons, ss 6 and 10 of the Parliamentary Precincts Act — and indeed the other provisions of that Act — provide no ground for the stay or dismissal of the indictment against Mr Offe.

26. So far as the jurisdiction of the court is concerned, the jurisdiction of the court is provided for in s 48A of the Self-Government Act and is also reflected in s 20 of the Supreme Court Act 1933 (ACT). Part 7 of the Supreme Court Act provides for the conduct of trials on indictment. Given my explanation of the operation of the statutory provisions to which I have referred, the fact that the offence alleged on the indictment occurred within the Parliamentary precincts provides no basis upon which it could be said that the proceedings are not within the jurisdiction of this court.

Order

27. The order of the Court is: (1) The oral application for a stay or dismissal of the indictment made by the accused on 26 August 2025 is dismissed.

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: