Obstruction of Commonwealth Public Official

– section 149.1 of the Commonwealth Criminal Code

Public OfficialThis charge is laid in situations where a person obstructs, hinders, intimidates or resists a Commonwealth Public Official in the performance of the official’s functions.

Examples of Obstruction of Commonwealth Public Official
  • A person tries to intimidate a Federal Court judge into giving them a low sentence for a crime they are pleading guilty to. The person is aware that the judge is a public official.
  • A person obstructs military personnel from carrying out their orders. The person is aware that the military personnel are public officials.
  • A person hinders a Member of Commonwealth Parliament (MP) in the performance of their parliamentary duties. The person knows that the MP is a public official.
Questions in cases like this
  • Did the accused know that the Commonwealth Public Official is a public official?
  • Was the official a Commonwealth public official?
  • Did the accused obstruct, hinder, intimidate or resist the official in the performance of the official’s functions as a Commonwealth public official?
What are some of the possible defences to Obstruction of Commonwealth Public Official?

Defences to this charge ordinarily turn on some element of the offence not being made out. These defences include:

  • The accused did not know that the Commonwealth public official was a public official;
  • The official was not a Commonwealth public official;
  • The accused did not obstruct, hinder, intimidate or resist the official’s functions;
  • The Commonwealth public official was not exercising functions as a Commonwealth public official.

Other defences to this charge include mental impairment,1 duress2 or sudden or extraordinary emergency.3

Maximum penalty and court that deals with this charge

Magistrates' CourtThis offence carries a maximum penalty of 2 years imprisonment.4

This offence is generally heard in the Magistrates’ Court or equivalent Local Court.

What is the legal definition of Obstruction of Commonwealth Public Official?
  1. A person commits an offence if:
    1. the person knows that another person is a public official; and
    2. the first-mentioned person obstructs, hinders, intimidates or resists the official in the performance of the official’s functions; and
    3. the official is a Commonwealth public official; and
    4. the functions are functions as a Commonwealth public official.

    Penalty: Imprisonment for 2 years.

  2. In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew:
    1. that the official was a Commonwealth public official; or
    2. that the functions were functions as a Commonwealth public official.
       
  3. For the purposes of this section, it is immaterial whether the defendant was aware that the public official was performing the official’s functions.
     
  4. Section 15.3 (extended geographical jurisdiction–category C) applies to an offence against subsection (1).
     
  5. The definition of duty in section 130.1 does not apply to this section.
     
  6. In this section:
    “function”:

    1. in relation to a person who is a public official–means any authority, duty, function or power that is conferred on the person as a public official; or
    2. in relation to a person who is a Commonwealth public official–means any authority, duty, function or power that is conferred on the person as a Commonwealth public official.
Legislation

Gavel
The relevant legislative provision for this offence is section 149.1 of Criminal Code Act 1995 (Cth) (the Act).

Elements of the offence

For a person to be found guilty of this offence, the prosecution must prove the following elements beyond reasonable doubt:

  1. The accused knew that the other person was a public official;
  2. The public official was a Commonwealth public official;
  3. The accused obstructed, hindered, intimidated or resisted the Commonwealth public official in the performance of their functions;
  4. The Commonwealth public official was performing the functions of a Commonwealth public official.

This offence applies whether or not the conduct constituting the offence occurs in Australia.5

Element 1: The accused knew that the other person was a public official
To satisfy the first element of this offence, the prosecution must prove that the accused knew that the other person was a public official.

It is not necessary for the prosecution to prove that the accused knew that the other person was a Commonwealth public official, it is enough that the accused knows that the other person is a public official.6

Element 2: The public official was a Commonwealth public official
The prosecution must also prove that the public official was a Commonwealth public official.

A ‘Commonwealth public official’ includes officials from all three branches of Commonwealth government – the executive, the legislature and the judiciary. It is exhaustively defined to mean7:

  1. the Governor-General; or
  2. a person appointed to administer the Government of the Commonwealth under section 4 of the Constitution; or
  3. a Minister; or
  4. a Parliamentary Secretary; or
  5. a member of either House of the Parliament; or
  6. an individual who holds an appointment under section 67 of the Constitution; or
  7. the Administrator, an Acting Administrator, or a Deputy Administrator, of the Northern Territory; or
  8. a Commonwealth judicial officer; or
  9. an APS employee; or
  10. an individual employed by the Commonwealth otherwise than under the Public Service Act 1999; or
  11. a member of the Australian Defence Force; or
  12. a member or special member of the Australian Federal Police; or
  13. an individual (other than an official of a registered industrial organisation) who holds or performs the duties of an office established by or under a law of the Commonwealth, other than:
    1. the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or
    2. the Australian Capital Territory (Self-Government) Act 1988; or
    3. the Corporations Act 2001; or
    4. the Norfolk Island Act 1979; or
    5. the Northern Territory (Self-Government) Act 1978; or
  14. an officer or employee of a Commonwealth authority; or
  15. an individual who is a contracted service provider for a Commonwealth contract; or
  16. an individual who is an officer or employee of a contracted service provider for a Commonwealth contract and who provides services for the purposes (whether direct or indirect) of the Commonwealth contract; or
  17. an individual (other than an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the person by or under a law of the Commonwealth, other than:
    1. the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or
    2. the Australian Capital Territory (Self-Government) Act 1988; or
    3. the Corporations Act 2001; or
    4. the Norfolk Island Act 1979; or
    5. the Northern Territory (Self-Government) Act 1978; or (vii) a provision specified in the regulations; or
  18. an individual who exercises powers, or performs functions, conferred on the person under a law in force in the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands (whether the law is a law of the Commonwealth or a law of the Territory concerned); or
  19. the Registrar, or a Deputy Registrar, of Aboriginal and Torres Strait Islander Corporations.
“Was the public official a Commonwealth public official?”

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Element 3: The accused obstructed, hindered, intimidated or resisted the Commonwealth public official in the performance of their functions
To prove the third element of this offence, the prosecution must prove that the accused obstructed, hindered, intimidated or resisted the Commonwealth public official in the performance of their functions.

‘Functions’ means any authority, duty, function or power that is conferred on the person as a Commonwealth public official.8

For example, the prosecution could prove this element by demonstrating that a person used threatening words to intimidate an Australian Federal Police member while the member was attempting to make an arrest.

Element 4: The Commonwealth public official was performing the functions of a Commonwealth public official

The final element of this offence requires the Commonwealth public official to be exercising their functions as a Commonwealth public official.

It is immaterial whether the accused knew that the Commonwealth public official was exercising their functions as a Commonwealth public official.9

Media information

 



[1] Commonwealth Criminal Code Act 1995 (Cth) s 7.3
[2] Commonwealth Criminal Code Act 1995 (Cth) s 10.2
[3] Commonwealth Criminal Code Act 1995 (Cth) s 10.3
[4] Commonwealth Criminal Code Act 1995 (Cth) s 149.1
[5] Commonwealth Criminal Code Act 1995 (Cth) ss 15.5 and 149.1(4)
[6] Commonwealth Criminal Code Act 1995 (Cth) s 149.1(2)(a)
[7] Commonwealth Criminal Code Act 1995 (Cth), Dictionary
[8] Commonwealth Criminal Code Act 1995 (Cth) s 149.1(6)(b)
[9] Commonwealth Criminal Code Act 1995 (Cth) s 149.1(2)(b)