Director of Public Prosecutions v Offe (No 3)
[2025] ACTSC 383
•28 August 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Offe (No 3) |
Citation: | [2025] ACTSC 383 |
Hearing Date: | 28 August 2025 |
Decision Date: | 28 August 2025 |
Before: | Mossop J |
Decision: | (1) The application filed by leave in court on 28 August 2025 is dismissed. |
Catchwords: | CONSTITUTIONAL LAW – CONSTITUTIONAL MATTER – Notice under s 78B of the Judiciary Act 1903 (Cth) – where accused seeks adjournment to raise a matter arising under the Constitution or involving its interpretation – where asserted matter is an inconsistency between the Crimes Act 1900 (ACT) and the Parliamentary Precincts Act 1988 (Cth) – inconsistency between Territory and Commonwealth enactments not governed by s 109 of the Constitution – assertion of constitutional matter colourable – application dismissed |
Legislation Cited: | Australian Capital Territory (Self-Government) Act 1988 (Cth), s 28 Commonwealth Constitution, s 109 Judiciary Act 1903 (Cth), s 78B Parliamentary Precincts Act 1988 (Cth), s 6 |
Cases Cited: | Commonwealth v Australian Capital Territory [2013] HCA 55; 250 CLR 441 |
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
By application in proceeding filed by leave this morning, Mr Offe seeks that the proceedings be adjourned so as to enable him to issue a notice under s 78B of the Judiciary Act 1903 (Cth). No prior notice was given of that application, even though the proceedings have been on foot for years and this is now day four of the trial.
The application is supported by an affidavit which, quite appropriately, annexes the notice of a constitutional matter which is proposed to be served and is said to provide the justification for the adjournment of the proceedings.
Section 78B(1) of the Judiciary Act provides:
(1)Where a cause pending … in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice …
Section 78B(2) relevantly provides that a court in which a cause referred to in subs (1) is pending “may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation”.
The notice of a constitutional matter provides, in its substantive parts, as follows:
The Defendant contends that:
(a)The ACT Executive, ACT Policing (AFP) and the ACT Director of Public Prosecutions have acted ultra vires and without proof of such authorisation;
(b)Their acts were and therefore remain ultra vires, beyond the lawful powers conferred by Commonwealth law;
(c)Insofar as the ACT law (Section 29A, Crimes Act 1900 (ACT)) is applied to conduct within the ‘Capital Circle’, absent authorisation, it is inconsistent with the Parliamentary Precincts Act 1988 (Cth) and invalid to that extent, under Section 109 of the Constitution; and
(d)The ACT Supreme Court accordingly lacks jurisdiction to entertain this prosecution. This matter therefore raises questions concerning the interpretation of the Constitution, the interaction between Commonwealth and Territory laws, and the jurisdiction of the ACT Supreme Court.
(Emphases omitted.)
That extract of the substance of the notice does not include the earlier paragraphs which put the asserted matter in context. That context is, in summary, that the events in question appear to have occurred within the Parliamentary precincts as defined in the Parliamentary Precincts Act 1988 (Cth), and Mr Offe contends that authority from the Presiding Officers of Parliament is necessary for police activity in that area pursuant to s 6 of the Parliamentary Precincts Act. The portion of the notice that I have quoted is sufficient to indicate that the invalidity of police conduct or the ACT law in question is said to arise pursuant to s 109 of the Constitution.
Decision
Section 109 of the Constitution has no application to laws of the Territory. Inconsistency between laws of the Territory and laws of the Commonwealth is not to be determined pursuant to the provisions of the Constitution. Rather, it is to be determined pursuant to s 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth), which provides in subs (1):
A provision of an enactment has no effect to the extent that it is inconsistent with a law defined by subsection (2), but such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law.
Subsection (2) then provides a definition of “law” in broad terms. The operation of s 28 was considered by the High Court in the Marriage Act case (Commonwealth v Australian Capital Territory [2013] HCA 55; 250 CLR 441).
In order for the obligations in s 78B to be engaged, there must be a real and substantial question as to the interpretation of the Constitution. A merely colourable assertion that such an issue arises is not sufficient to engage that provision. The word “colourable” is used in the sense of being a matter which does not have substance to it. In my opinion, because the notice seeks to raise as a matter involving the interpretation of the Constitution something which in fact does not engage s 109, but instead engages simply a Commonwealth statutory provision, it is not sufficient to engage s 78B and hence the application filed this morning should be dismissed.
Order
The order of the Court is:
(1)The application filed by leave in court on 28 August 2025 is dismissed.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: |
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