DPP v Offe

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: DPP v Offe (No 6) Citation: [2025] ACTSC 393 Hearing Date: 1 September 2025 Decision Date: 1 September 2025 Before: Mossop J Decision: (1) The application to stay or dismiss the indictment reflected in the document “Notice of Objection to Ruling made by the Judge on 28 August 2025” filed 29 August 2025 is dismissed. Catchwords: CONSTITUTIONAL LAW – STATE AND TERRITORY BOUNDARIES – Surrender by NSW and acceptance by the Commonwealth of the ACT – where jurisdiction of the ACT Government over the ACT challenged – whether territory validly surrendered by NSW – where boundaries of NSW defined in the Constitution Act 1902 (NSW) primarily by reference to latitude and longitude – where land comprising the ACT is within the geographical scope defined by that Act – where Constitution Act 1902 (NSW) is subject to the Commonwealth Constitution – acquisition by the Commonwealth of the ACT not constitutionally defective – jurisdictional challenges rejected CONSTITUTIONAL LAW – CONSTITUTIONAL MATTER – Notices under s 78B of the Judiciary Act 1903 (Cth) – where jurisdiction of the court and surrender by NSW of the ACT challenged – where challenge so clearly lacks merit that no real or substantial question arises – no obligation under s 78B arises Legislation Cited: Commonwealth Constitution, ss 106, 111, 125 Constitution Act 1902 (NSW), s 4 Crimes Act 1900 (ACT), s 29A Judiciary Act 1903 (Cth), s 78B New South Wales Act 1823, 4 Geo 4, c 96 New South Wales Constitution Act 1855, 18 & 19 Vict, c 54, s 46 Parliamentary Precincts Act 1988 (Cth) Seat of Government Acceptance Act 1909 (Cth) Seat of Government Surrender Act 1909 (NSW) Cases Cited: Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 DPP v Offe (No 4) [2025] ACTSC 384 New South Wales v The Commonwealth (1975) 135 CLR 337 Paterson v O’Brien (1978) 138 CLR 276 Spratt v Hermes (1965) 114 CLR 226 Svikart v Stewart (1994) 181 CLR 548 Texts Cited: A Twomey, The Constitution of New South Wales (Federation Press, 2004) ACV Melbourne, Early Constitutional Development in Australia (University of Queensland Press, 2nd ed, 1963) Commission of Governor Darling as Governor of New South Wales (16 July 1825) Commission of Governor Darling as Governor of Van Diemen’s Land (16 July 1825) G Carney, ‘The Story Behind the Land Borders of the Australian States: A Legal and Historical Overview’ (Public Lecture Series, High Court of Australia, 10 April 2013) MH McLelland, ‘Colonial and State Boundaries in Australia’ (1971) 45 Australian Law Journal 671 Order in Council Separating Van Diemen’s Land from New South Wales (14 June 1825) 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 192 of 2022 MOSSOP J: Introduction

1. Andrew Offe is charged with two counts of a breach of s 29A of the Crimes Act 1900 (ACT). During the course of his jury trial, he has made a number of objections to the validity of the indictment or the continuation of the proceeding. On the fifth day of the trial, he filed a document entitled “Notice of Objection to Ruling made by the Judge on 28 August 2025”. The reference to the ruling on 28 August was to a ruling on the fourth day of the trial relating to an earlier constitutional argument which he had made (see DPP v Offe (No 4) [2025] ACTSC 384).

2. The document filed on the fifth day of the trial identified that it was an “Application for Stay or Mistrial – Constitutional Ground”. Amongst the relief sought was that the proceeding should be “permanently stayed for want of jurisdiction”. I have treated this as a further application for a stay of the proceeding.

3. The document noted the terms of s 4 of the Constitution Act 1902 (NSW) and noted that s 111 of the Commonwealth Constitution requires both a surrender of territory by the State and its acceptance by the Commonwealth. The submissions continued: The continuing absence of reference to the ACT in the NSW Constitution Act raises a constitutional defect as to whether the Commonwealth has lawfully ‘received’ and NSW Wales [has lawfully] surrendered territory in the sense required by Section 111. This undermines the assumption that the ACT, which enjoys exclusive jurisdiction over the Seat of Government, including Capital Circle. [sic]

4. The reference to Capital Circle appears to be intended to be a reference to the area within the Parliamentary precincts as defined by the Parliamentary Precincts Act 1988 (Cth). The operation of that Act was the subject of my earlier ruling referred to above.

Consideration

5. Section 4 of the Constitution Act 1902 provides: For the purposes of this Act, the boundaries of New South Wales shall comprise all that portion of Australia lying between the one hundred and twenty-ninth and one hundred and fifty-fourth degrees of east longitude, reckoning from the meridian of Greenwich and northward of the fortieth degree of south latitude, including all the islands adjacent in the Pacific Ocean within the latitude aforesaid, and also including Lord Howe Island, save and except the territories comprised within the boundaries of South Australia, Victoria, and Queensland, as at present established.

6. This provision has not been amended since its enactment. The terms of s 4 repeat the terms of s 46 of the New South Wales Constitution Act 1855, 18 & 19 Vict, c 54. The two most notable points about this definition are that its starting point involves boundaries determined by longitude and latitude, and that it makes no reference to Tasmania or its associated islands.

Boundaries of NSW

7. So far as the definition by longitude and latitude is concerned, the western boundary (the line of longitude to 129 degrees east) is what is now the eastern boundary of Western Australia. This was not the original boundary of NSW, as the boundary previously ended at the longitude 135 degrees east. It was extended in 1825 so as to capture new settlements at Port Essington and Melville Island in Northern Australia: ACV Melbourne, Early Constitutional Development in Australia (University of Queensland Press, 2nd ed, 1963) at 107; G Carney, ‘The Story Behind the Land Borders of the Australian States: A Legal and Historical Overview’ (Public Lecture Series, High Court of Australia, 10 April 2013) at 6; MH McLelland, ‘Colonial and State Boundaries in Australia’ (1971) 45 Australian Law Journal 671 at 672-673.

8. The eastern boundary (the line of longitude 154 degrees east) was a line of longitude just east of the easternmost point of the east coast of Australia. As a consequence, it was necessary to make specific reference to Lord Howe Island in order that it be included as part of the State.

9. The southern boundary is defined as the latitude 40 degrees south. That is a line of latitude which would fall within Bass Strait if the islands of Bass Strait were included in the expression “all the islands adjacent in the Pacific Ocean”. Although the meaning of this expression would have to be judged by reference to its usage as at 1855, it appears that the expression “Pacific Ocean” was not intended to extend westward to Bass Strait because that would have trespassed upon areas included within Tasmania.

10. Since 1825, Tasmania has been separated from NSW. Tasmania’s northern limit has been defined by reference to both Tasmania and its adjoining islands, and then more specifically defined as following the line of latitude 39 degrees 12 minutes south, corresponding generally to the southernmost tip of what is now Victoria at Wilson Promontory: see the New South Wales Act 1823, 4 Geo 4, c 96; Order in Council Separating Van Diemen’s Land from New South Wales (14 June 1825); Commission of Governor Darling as Governor of New South Wales (16 July 1825); Commission of Governor Darling as Governor of Van Diemen’s Land (16 July 1825).

11. That had the effect of including within the boundaries of the Tasmanian colony (and then the State boundaries) the whole of King Island and the Furneaux Group, including Flinders Island, which would otherwise fall wholly within or substantially north of 40 degrees south. It is for these reasons that it was not necessary to make specific reference in s 4 to the exclusion of Tasmania as established in 1902 in order to ensure the exclusion of Tasmania’s islands from the definition.

12. Otherwise, the history of changes to the boundaries of NSW is summarised in McLelland (see above) and A Twomey, The Constitution of New South Wales (Federation Press, 2004) at 37-39. The fact that the boundary of the State did not include the territorial sea or seabed within the boundaries is made clear by the decision of the High Court in the Seas and Submerged Lands case (New South Wales v The Commonwealth (1975) 135 CLR 337), with reference made to the littoral boundaries of NSW and Tasmania in the judgement of Mason J at 459-460.

Significance for the ACT

13. Plainly enough, the land which comprises the ACT is within the geographical scope described in s 4 of the Constitution Act 1902. However, the fundamental defect in the contention advanced by Mr Offe is that, whatever the effect of s 4 is for the purpose of the 1902 Act, that Act was enacted in the context of, and operates within the context of, the Commonwealth Constitution which took effect from 1 January 1901.

14. Any statement as to the extent of the State was subject to the operation of the Commonwealth Constitution. Most relevant in this context are ss 111 and 125, but also s 109. To the extent to which the boundaries of the State were established by its constitution as at the time of Federation, that constitution was made subject to the new Commonwealth Constitution by s 106.

15. The submissions fail to make reference to the Seat of Government Surrender Act 1909 (NSW). That, in combination with the Seat of Government Acceptance Act 1909 (Cth), had the effect of removing the area of what is now the ACT from NSW. Those Acts have effect pursuant to ss 111 and 125 of the Commonwealth Constitution and resulted in the ACT becoming “subject to the exclusive jurisdiction of the Commonwealth”. The effectiveness of that process has been uniformly assumed in all High Court decisions which have addressed the constitutional status of the ACT: see, for example, Spratt v Hermes (1965) 114 CLR 226; Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248; Svikart v Stewart (1994) 181 CLR 548. A direct challenge to the effectiveness of the surrender and acceptance was unanimously rejected in Paterson v O’Brien (1978) 138 CLR 276.

16. As a consequence, to the extent to which Mr Offe either seeks to challenge the jurisdiction of the court or alternatively, to challenge the effectiveness of Territory statutes, including s 29A of the Crimes Act, his submissions are without any merit and provide no basis for any permanent stay of the proceedings.

17. Because of the manifest lack of merit in the submission, it was not necessary to have notices under s 78B of the Judiciary Act 1903 (Cth) issued and adjourn the trial. Where a matter arising under the Commonwealth Constitution or involving its interpretation so clearly lacks merit that it can be said that no real or substantial question arises, then no obligation to serve s 78B notices or adjourn the proceedings for that purpose arises: Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292 at [13]-[14].

18. There are other aspects of the submissions made by Mr Offe which relate to the directions to be given to the jury. To the extent, if any, that those have not been dealt with by my earlier ruling, they can be addressed prior to closing addresses.

19. It is for those reasons that I ordered this morning that the application to stay or dismiss the indictment in the document entitled “Notice of Objection to Ruling made by the Judge on 28 August 2025” filed 29 August 2025 is dismissed.

Order

20. The order of the Court is: (1) The application to stay or dismiss the indictment reflected in the document “Notice of Objection to Ruling made by the Judge on 28 August 2025” filed 29 August 2025 is dismissed.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: