Director of Public Prosecutions v Offe (No 5)
[2025] ACTSC 385
•28 August 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Offe (No 5) |
Citation: | [2025] ACTSC 385 |
Hearing Date: | 28 August 2025 |
Decision Date: | 28 August 2025 |
Before: | Mossop J |
Decision: | See [22]-[23] |
Catchwords: | POLICE – RIGHTS, POWERS and DUTIES – Where police functions not, per se, qualified by provisions of Parliamentary Precincts Act 1988 (Cth) – where police functions may be qualified by action taken under the Parliamentary Precincts Act – where instrument made under the Parliamentary Precincts Act authorises AFP Superintendent assigned to Parliament House to act on behalf of Presiding Officers in relation to day-to-day operational security of Parliament House – where police officer not acting in accordance with functions if not acting with the authority or approval of AFP Superintendent PRACTICE AND PROCEDURE – JURY DIRECTIONS – Where DPP sought indication of direction to be given to jury as to what is required for police officer to be “exercising a function given to the officer as a police officer” under s 29A of the Crimes Act 1900 (ACT) – where issue of interaction between Parliamentary Precincts Act and police functions under the Australian Federal Police Act 1979 (Cth) – indication of jury direction given |
Legislation Cited: | Australian Federal Police Act 1979 (Cth), ss 8, 9 Crimes Act 1900 (ACT), s 29A Parliamentary Precincts Act 1988 (Cth), ss 6, 8, 9, 10 |
Cases Cited: | DPP v Offe (No 4) [2025] ACTSC 384 |
Texts Cited: | Authorisation to the Australian Federal Police Security Controller (16 December 2014) Memorandum of Understanding between Australian Federal Police and Department of Parliamentary Services: Operational security and response arrangements at Australian Parliament House (16 December 2014 and 23 December 2014) |
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
Arising out of some of the questions asked by Mr Offe during the course of cross‑examination, the prosecution has sought an indication of the direction that I will give to the jury as to the interaction between the Parliamentary Precincts Act 1988 (Cth) and the powers and functions of the Australian Federal Police (AFP) under the Australian Federal Police Act 1979 (Cth) (AFP Act) when directing the jury as to what is required for the purposes of the element of the offence in s 29A of the Crimes Act 1900 (ACT) which requires proof that the police officer was “exercising a function given to the officer as a police officer”.
The questions asked by Mr Offe of officers involve inquiries as to whether or not the actions the subject of the charges occurred within the Parliamentary precincts, as defined by the Parliamentary Precincts Act, and whether or not the actions of police had been authorised by the Presiding Officers, as defined by the Parliamentary Precincts Act.
The legal issue that arises is whether or not anything in the Parliamentary Precincts Act, or an instrument made under it, qualifies the functions of police under the AFP Act in a manner relevant to the current charges. This is an issue which might have been raised in an objection to any of the questions asked of witnesses by Mr Offe and would have been required to be determined on such an objection. The course adopted by the prosecution was to not object to those questions but to ask, prior to the conclusion of the prosecution case, what direction would be given to the jury. Notwithstanding that he had asked questions of witnesses about this issue, Mr Offe declined to make any submissions contrary to the submissions made by the prosecution and said that the jury direction was a matter for the court.
I consider that, having regard to the nature of the legal issue raised, it is appropriate to indicate the manner in which I will direct the jury in relation to the issue. That will inform the parties as to the manner in which I am likely to rule on any subsequent evidentiary objection and assist them in preparing their closing addresses.
Functions of police under the AFP Act
The principal source of the functions of an officer of the AFP is the terms of the AFP Act. Section 8 contains a description of the functions of the AFP. Those functions include the provision of police services in the Australian Capital Territory: s 8(1)(a). That is subject to s 8(1A), which makes the function subject to arrangements being entered into with the Australian Capital Territory for the provision of those services. Such arrangements have been in place since shortly after self‑government. Section 9 provides that, in addition to any other powers and duties, police officers have, when performing functions in the Australian Capital Territory, the powers and duties conferred or imposed on a constable or an officer of police by or under any law (including the common law) of the Territory: s 9(1)(b). More generally, in connection with the property of the Commonwealth, premises owned or occupied by the Commonwealth and the safeguarding of Commonwealth interests, the powers and duties of a member of the AFP include the powers and duties conferred or imposed on a constable or officer of police in the place where the member is acting: s 9(1)(c).
The issue in the present case is whether or not the functions, powers and duties conferred by ss 8 and 9 are qualified by the provisions of the Parliamentary Precincts Act in relation to events occurring in the Parliamentary precincts. When the terms of the Parliamentary Precincts Act are examined, it is clear that the functions, powers and duties conferred by the AFP Act are not, per se, qualified in the Parliamentary precincts.
Provisions of the Parliamentary Precincts Act
Section 6 of the Parliamentary Precincts Act relevantly provides that:
(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.
There is a limitation on that in relation to the Ministerial Wing of Parliament House in s 6(3). Assuming that there was no action taken by the Presiding Officers pursuant to s 6 that was inconsistent with the members of the AFP exercising the functions, powers and duties in ss 8 and 9 of the AFP Act, s 6 itself does not operate to qualify those functions, powers and duties. If there was evidence that the power of control and management of the precincts had been exercised by the Presiding Officers in a manner inconsistent with the exercise of powers by the AFP, then there would be an issue as to the relationship between s 6 and those powers.
Section 8 of the Parliamentary Precincts Act relates to powers of the AFP to arrest and hold in custody a person pursuant to an order of either House relating to the powers, privileges and immunities of that House. It indicates that such powers are to be exercised in accordance with “general arrangements agreed between the Presiding Officers and the Minister administering the Australian Federal Police Act 1979”. The section has effect notwithstanding the AFP Act: s 8(2). This provision grants an additional but qualified power to members of the AFP. It is not applicable in the present circumstances. Its only relevance is to indicate that the statute makes it clear when a power that it provides is subject to “arrangements” between the Presiding Officers and other persons. Counsel for the prosecution drew the distinction between the language used in s 8 and the language used in s 6, which makes no attempt to qualify any powers of a police officer by a requirement to comply with any arrangements with the Presiding Officers.
Section 9 of the Parliamentary Precincts Act relates to the operations of the Australian Protective Service in the Parliamentary precincts. It appears to have been enacted upon the legislative assumption that such officers would be the ones who, in the usual course, would provide security in the Parliamentary precincts. The charges in the present case do not relate to Australian Protective Service officers but instead relate to members of the AFP. It is not necessary for the purposes of this case to consider what, if any, consequences would flow from an Australian Protective Service officer performing functions inconsistent with the “general arrangements” agreed with the Presiding Officers.
Section 10 of the Parliamentary Precincts Act relates only to the Commonwealth Director of Public Prosecutions. I have described this section’s operation in the ruling that I gave earlier today: DPP v Offe (No 4) [2025] ACTSC 384. For present purposes, s 10 is only significant insofar as it makes clear that there is a distinction between the provisions of the Parliamentary Precincts Act which require performance of functions in accordance with “general arrangements” and s 6, which contains no qualification in such terms on the powers of persons who perform statutory functions within the precincts.
This review of the provisions of the Parliamentary Precincts Act indicates that the language of s 6 is not such as to, by itself, qualify the functions, powers and duties of members of the AFP within the Parliamentary precincts. I have explained earlier that it is conceivable that there may be a conflict between the powers granted in s 6 to the Presiding Officers and a statutory function of another Commonwealth officer, including a police officer, exercised within the Parliamentary precincts. However, unless the Presiding Officers have taken action under s 6 which conflicts with the exercise of the statutory function, no conflict arises. Specifically, there is no a priori requirement by virtue of s 6 for a member of the AFP to obtain approval or authorisation for exercising functions under ss 8 and 9 of the AFP Act within the Parliamentary precincts.
Action taken under the Parliamentary Precincts Act
So far in these reasons, I have discussed s 6 on the assumption that there had been no relevant action taken by the Presiding Officers. I have recognised that a situation could arise in which there was a conflict between action taken pursuant to s 6 and statutory powers of a Commonwealth official. So far as the powers of the AFP are concerned, the Presiding Officers have taken steps to authorise AFP action in relation to the Parliament.
Those steps are contained in an instrument which is currently marked MFI D. It is entitled Authorisation to the Australian Federal Police Security Controller, dated 16 December 2014, and signed by the Speaker of the House of Representatives and the President of the Senate. It states that it is made pursuant to s 6(2) of the Parliamentary Precincts Act and that the Presiding Officers “hereby authorise” various things. It authorises the “AFP Superintendent assigned to Parliament House” to act “on behalf of the Presiding Officers” in relation to the day‑to‑day operational security of Parliament House. That day-to-day operational security is said in the document to include:
(a)“command, control and coordination of all operational security and response functions with the Parliamentary precincts”;
(b)“granting approval for additional AFP personnel to attend the Parliamentary precincts to respond to incidents within the Parliamentary precincts involving harm to persons, destruction or damage to Commonwealth property”;
(c)“authorising AFP personnel to carry firearms and AFP equipment in accordance with [the] AFP Commissioner’s Orders in any part of the Parliamentary precincts”; and
(d)“administering the Presiding Officers’ guidelines in relation to protests and other public assemblies in the Parliamentary precincts”.
It requires that the Serjeant-at-Arms, Usher of the Black Rod and Department of Parliamentary Services be notified as soon as practicable of any protests or other public assemblies where there are implications for a working Parliament, for the ability of members or senators to undertake their Parliamentary duties, or for the security or decorum of the Chambers.
The instrument signed by the Presiding Officers falls within “any action they consider necessary for the control and management of the precincts”: see s 6(2) of the Parliamentary Precincts Act. Having taken steps to authorise a particular arrangement in relation to the day‑to‑day operational security of Parliament House, identifying a particular member of the AFP as being authorised to act, it would appear to me to be inconsistent with that exercise of power under s 6(2) to have the provisions of the AFP Act operate in a manner inconsistent with those arrangements. For example, if a member of the AFP was otherwise entitled to carry a firearm but was not authorised by the AFP Superintendent assigned to Parliament House to carry the firearm within Parliament House, then there would be an inconsistency between the powers of the Presiding Officers exercised pursuant to s 6(2) and the powers of the officer under the AFP Act.
Although no submissions were specifically directed to this issue, I have assumed for the purposes of this case that an inconsistency between the exercise of powers by the Presiding Officers under s 6 and the provisions of the AFP Act would be resolved by having the specific and later Parliamentary Precincts Act qualify the earlier and more general provisions of the AFP Act. I accept that this reading down of the provisions of the AFP Act is not the only manner in which an inconsistency could be resolved.
An alternative interpretation might involve the relevant officer acting contrary to the terms of s 6(2) of the Parliamentary Precincts Act but not outside the scope of ss 8 and 9 of the AFP Act. Having regard to the absence of submissions on this issue, unless further submissions are made directed to it, I will proceed in the manner that I have indicated, involving the inconsistency being resolved in favour of a qualification on the functions, powers and duties in ss 8 and 9 of the AFP Act.
For the purposes of this case, the issue is whether each officer named in the indictment was “exercising a function given to the officer as a police officer”. If the police officers were acting in a manner consistent with the directions, instructions or orders of the AFP Superintendent assigned to Parliament House, then it is clear that they would relevantly be exercising a function given to them as police officers. If they were not so acting, then on the approach that I have outlined, they would not be exercising a function given to them as police officers. The present state of the evidence is somewhat unclear. While a number of officers have been asked whether they were authorised to perform functions within the Parliamentary precincts and have asserted that they were, no specific reference has been made either in the questions or the answers to “the AFP Superintendent assigned to Parliament House”.
The other document which was referred to in submissions and may be put into evidence is that which is currently MFI C, being a memorandum of understanding between the AFP and the Department of Parliamentary Services entitled Operational security and response arrangements at Australian Parliament House. It is dated 16 December 2014 and 23 December 2014. The date of the first signature on the document is the same as those on the Presiding Officers’ authorisation (MFI D), and it can be inferred that the document was intended to operate consistently with the Presiding Officers’ authorisation.
The document makes reference to the AFP security controller being the “AFP Superintendent assigned to Parliament House”. It contains various provisions relating to the roles of the parties, “letters of exchange” about particular issues, information exchange, reporting and communications, legal and financial liabilities, work health and safety, dispute resolution, variation and review, and termination. It is not necessary to recite these in any detail. It is not a document which could qualify the powers of police under the AFP Act.
Conclusion
In light of what I have said, if MFI D is in evidence, I presently intend to direct the jury that if a police officer was not acting with the authority or approval of the AFP Superintendent assigned to Parliament House, then the officer would not have been acting in accordance with the powers and functions granted by the AFP Act and, hence, would not have been exercising a function given to the officer as a police officer for the purposes of s 29A(1)(c) of the Crimes Act. I do not presently intend to direct the jury that any other authorisation from the Presiding Officers was necessary pursuant to s 6 of the Parliamentary Precincts Act.
Having regard to what I have said, I consider that it would be necessary, if the prosecution was to make any additional submissions about the effect of an inconsistency between action taken under s 6(2) of the Parliamentary Precincts Act and the powers in ss 8 and 9 of the AFP Act, that those submissions be made prior to the conclusion of the cross-examination of the informant, so that Mr Offe can be aware of those submissions and any alteration of my intention in relation to direction of the jury prior to the close of the prosecution case.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: |
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