Commonwealth Numbered Regulations - Explanatory Statements

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CRIMES AMENDMENT REGULATIONS 2000 (NO. 2) 2000 NO. 100

STATUTORY RULES 2000 NO. 100

Issued by the authority of the Minister for Justice and Customs

Crimes Act 1914

Crimes Amendment Regulations 2000 (No. 2)

Section 91 of the Crimes Act 1914 (the Act) provides that the Governor-General may make regulations for carrying out or giving effect to the Act.

The purpose of the Crime's Amendment Regulations is to exempt two categories of bodies

from the provisions of the Spent Convictions Scheme for certain purposes and to effect two

minor corrections to the Crimes Regulations.

The Spent Convictions Scheme is contained in Division 3 of Part VIIC of the Act. This scheme provides a mechanism whereby certain convictions that are over 10 years old can be 4 spent. If a person was convicted of an offence 10 years ago or more (5 years if convicted as a minor) and was sentenced to less that 30 months imprisonment and has not re-offended since that conviction, then the conviction is 'spent'. The person may then lawfully state, on oath or otherwise, that he or she was never convicted of the offence. In most circumstances, another person who knows of the offence is not allowed to disclose it without the consent of the person convicted, or to take it into 'account in any decision making process.

The Spent Convictions Scheme provides for exclusions under regulation, pursuant to which a person may be required to disclose an offence to which the Scheme would otherwise apply. Existing exclusions are listed in schedule 4 of the Crimes Regulations. Under paragraph 85ZZ11(k) of the Crimes Act an exclusion may be granted to:

a prescribed person or body, for a prescribed purpose, in relation to a conviction for a prescribed offence.

Schedule 1 to the amending regulations exempts two categories of bodies from the provisions of the Spent Convictions Scheme:

-       bodies which employ or otherwise engage persons to provide advocacy services to or care for intellectually disabled persons (advocacy services), for the purpose of assessing the suitability of a person to act as an advocate for an intellectually disabled person or to have responsibility for the care of an intellectually disabled person (item 3); and

-       bodies which employ or otherwise engage persons to control or care for a detainee under the Migration Act 1958 (immigration detention providers), for the purpose of assessing the suitability of a person to have responsibility for the care or control of a detainee under that Act (item 4).

The Schedule also makes two corrections to references in the Crimes Regulations.

Advocacy Services Exclusion

A variety of organisations across Australia provide advocacy and carer services to intellectually disabled people. The rationale for the exclusion is that a high degree of trust is placed in all advocates. Due to the high degree of trust placed in the advocates and the particular vulnerability of people with intellectual disabilities, it is appropriate that regard be had to otherwise spent convictions for offences against the person in assessing the suitability of a person to act as an advocate or carer. A specific exclusion has previously been prescribed in relation to Citizen Advocacy Western Sydney, an organisation providing advocacy services to intellectually disabled persons in the Western Sydney area. The amending regulations will substitute the existing exclusion in item 17 of Schedule 4 of the Crimes Regulations with a general exclusion in respect of all bodies providing advocacy or carer services to intellectually disabled persons. The exclusion is in accordance with the recommendation of the Privacy Commissioner.

Immigration Detention Exclusion

In September 1997 the Department of Immigration and Multicultural Affairs (DIMA) outsourced the provision of detention services following a tender evaluation. The detention services provider is contracted to deliver a full range of services at immigration detention facilities, including guarding, catering, health, welfare and education services. Both DINIA and the contracted provider owe a duty of care to persons held under immigration detention.

Detainees are in a potentially vulnerable position and need to be protected from persons. with a history of violence. The exclusion will assist in ensuring that prospective employees do not have a history of behaviour that may place detainees at risk. Analogous exclusions have previously been prescribed in relation to prison administrations in Victoria, South Australia, Western Australia and the Northern Territory and ACT Corrective Services. The exclusion is an accordance with the recommendation of the Privacy Commissioner.

Minor Corrections

In 1992, the Australian Securities Commission (ASC) changed its name to the Australian Securities and Investments Commission (ASIC). Item 2 of Schedule 1 amends the reference in Schedule 4 of the Crimes Regulations to reflect that change.

Item 1 of Schedule 1 amends replaces the reference in the heading of Schedule 3B of the Crimes regulations to regulation 6A. The amendment corrects a numbering error in the Regulations.

The Regulations commence on gazettal.