EXPLANATORY STATEMENT

Select Legislative Instrument 2010 No. 251

Issued by the authority of the Minister for Justice

Crimes Amendment Regulations 2010 (No. 4)

Section 91 of the Crimes Act 1914 (the Crimes Act) provides that the Governor-General may make regulations, not inconsistent with the Crimes Act, prescribing all matters required or permitted by the Crimes Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Crimes Act.

Section 20AB of the Crimes Act provides a mechanism for courts, when sentencing federal offenders, to access a number of sentencing options that are available in the States and Territories. Some of these options are specifically identified in subsection 20AB(1) of the Crimes Act and further sentencing options are prescribed for the purposes of this subsection in regulation 6 of the Crimes Regulations 1990 (the Crimes Regulations).

The purpose of the Regulations is to amend regulation 6 of the Crimes Regulations to refer to current State and Territory sentencing legislation. This will ensure that courts maintain their ability to access a range of options when sentencing federal offenders. In particular, the amendments will allow federal offenders to be sentenced in accordance with recently introduced sentencing legislation in the Australian Capital Territory, New South Wales and Victoria.

Australian Capital Territory

The amendments provide that periodic detention and good behaviour orders made under the Crimes (Sentencing) Act 2005 (ACT) are prescribed sentencing options under regulation 6 of the Crimes Regulations. The amendments will also remove reference to the Periodic Detention Act 1995 (ACT) which has been repealed.

New South Wales

The amendments provide that intensive correction orders made under section 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and Division 6 of Part 4 of the Fines Act 1996 (NSW) are prescribed sentencing options under regulation 6 of the Crimes Regulations. The amendments will also remove reference to a sentencing option that no longer exists, that is periodic detention orders under Part 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Victoria

The amendments provide that home detention orders made under section 26M of the Sentencing Act 1991 (Vic) are prescribed sentencing options under regulation 6 of the Crimes Regulations. These amendments will also remove reference to Subdivision (1D) of Division 2 of Part 3 of that Act because Subdivision (1D) will be repealed by Victorian legislation that has received Royal Assent but has not yet commenced.

Other Issues

The Commonwealth Director of Public Prosecution has been consulted on the amendments and their comments were incorporated into the drafting.

These regulations are not likely to impact on business or restrict competition.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The regulations 1 to 3, and Schedule 1, commence on the day after they are registered on the Federal Register of Legislative Instruments, and Schedule 2 will commence on the date that the relevant Victorian legislation commences.

Details of the Regulations are set out in the Attachment.

 

ATTACHMENT

Details of the Crimes Amendment Regulations 2010 (No. 4)

Section 20AB of the Crimes Act provides a mechanism for federal offenders to access a number of sentencing options that are available in the States and Territories. Some sentencing options are prescribed in regulation 6 of the Crimes Regulations.

New South Wales, Victoria and the Australian Capital Territory have each introduced amendments to their respective sentencing regimes. It is necessary to amend regulation 6 of the Crimes Regulations to reflect current sentencing options in these jurisdictions and ensure that courts maintain their ability to access a range of State and Territory options when sentencing federal offenders.

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is Crimes Amendment Regulations 2010 (No. 4).

Regulation 2 – Commencement

The Regulations commence as follows:

(a)    regulations 1 to 3 and Schedule 1 of the Regulations to commence on the day after they are registered

(b)   Schedule 2 of the Regulations to commence on the commencement of section 14 of the Justice Legislation Amendment Act 2010 (Vic).

Regulation 3 – Amendment of Crimes Regulations 1990

The Regulations amend the Crimes Regulations as set out in Schedules 1 and 2.

Schedule 1 – Amendments commencing on the day after registration

Item [1] – Substitutes paragraph 6(fa)

Existing paragraph 6(fa) of the Crimes Regulations prescribes a periodic detention order made under Part 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) as a sentencing option for the purposes of section 20AB of the Crimes Act.

However, periodic detention orders are no longer a sentencing option under Part 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW). They were removed from that Act and replaced by intensive correction orders by the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW) which commenced on 1 October 2010. Intensive correction orders are imposed under section 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

New paragraph 6(fa) of the Crimes Regulations will prescribe an intensive correction order made under section 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) as a sentencing option for the purposes of section 20AB of the Crimes Act. This, in combination with new paragraph 6(gaa), which prescribes an intensive correction order made under Division 6 of Part 4 of the Fines Act 1996 (NSW), removes references to repealed legislation, ensures that current NSW sentencing legislation is prescribed in the Crimes Regulations, and allows courts to sentence federal offenders prosecuted in NSW to intensive correction orders.

Item [2] – Create new paragraph 6(gaa). Replace existing paragraph 6(ga) with new paragraphs 6(ga) and 6(gb)

 

The Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW) replaced periodic detention orders with intensive correction orders. Intensive correction orders are imposed under section 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) or Division 6 of Part 4 of the Fines Act 1996 (NSW).

As set out in relation to item 1, new paragraph 6(fa) of the Crimes Regulations prescribes an intensive correction order made under section 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) as a sentencing option for the purposes of section 20AB of the Crimes Act. New paragraph 6(gaa) prescribes intensive correction orders made under Division 6 of Part 4 of the Fines Act 1996 (NSW) as a sentencing option for the purposes of section 20AB of the Crimes Act. These two amendments remove references to repealed legislation, ensure that current NSW sentencing legislation is prescribed in the Crimes Regulations and allow courts to sentence federal offenders prosecuted in NSW to intensive correction orders.

Existing paragraph 6(ga) of the Crimes Regulations prescribes an order for periodic detention made under Part 2 of the Periodic Detention Act 1995 (ACT) as a sentencing option for the purposes of section 20AB of the Crimes Act. The Periodic Detention Act 1995 (ACT) has been repealed and periodic detention for offenders in the ACT is now provided for in the Crimes (Sentencing) Act 2005 (ACT).

Courts in the ACT currently sentence federal offenders to periodic detention by relying on the general reference to periodic detection in section 20AB of the Crimes Act. Some courts in the ACT have expressed reluctance to continue to sentence offenders without specific reference to ACT legislation in regulation 6 of the Crimes Regulations.

New paragraph 6(ga) prescribes an order under the Crimes (Sentencing) Act 2005 (ACT) setting a period of a sentence of imprisonment to be served by periodic detention as a sentencing option for the purposes of section 20AB of the Crimes Act. This will remove the reference to repealed legislation, ensure that current ACT legislation is prescribed in the Crimes Regulations and ensure the ability of ACT courts to sentence federal offenders prosecuted in that jurisdiction to periodic detention,

Existing regulation 6 of the Crimes Regulations does not refer to ACT good behaviour orders. New paragraph 6(gb) prescribes a good behaviour order imposed under Part 3.3 of the Crimes (Sentencing) Act 2005 (ACT) as a sentencing option for the purposes of section 20AB of the Crimes Act. This will ensure that current ACT sentencing legislation is prescribed in the Crimes Regulations and allow courts to sentence federal offenders prosecuted in the ACT to good behaviour orders.

 

 

Schedule 2 – Amendment commencing on commencement of section 14 of Justice Legislation Amendment Act 2010 (Vic)

Item [1] – Substitute paragraphs 6(c) and 6(ca)

Existing paragraph 6(c) of the Crimes Regulations prescribes an intensive correction order made under Subdivision (2) of Division 2 of Part 3 of the Sentencing Act 1991 (Vic) as a sentencing option for the purposes of section 20AB of the Crimes Act. Paragraph 6(c) requires minor amendments to ensure that it is consistent with other parts of the Sentencing Act 1991 (Vic).

New paragraph 6(c) will change the reference to the Sentencing Act 1991 (Vic) from being italicised to being bold. New paragraph 6(c) also refers specifically to an intensive correction order made under subsection 19(1) of the Sentencing Act 1991 (Vic), rather than under Subdivision (2) of Division 2 of Part 3 of that Act. This will ensure that the Crimes Regulations are consistent with the definition of ‘intensive correction order’ in section 3 of the Sentencing Act 1991 (Vic), which defines ‘intensive correction order’ as ‘an order made under section 19(1) [of the Sentencing Act]...’.

Existing paragraph 6(ca) of the Crimes Regulations prescribes a home detention order made under Subdivision (1D) of Division 2 of Part 3 of the Sentencing Act 1991 (Vic) as a sentencing option for the purpose of section 20AB of the Crimes Act.

However, the Justice Legislation Amendment Act 2010 (Vic) will repeal Subdivision (1D) of Division 2 of Part 3 of the Sentencing Act 1991 (Vic) and make home detention available to courts as a stand-alone order, rather than the manner in which a sentence of imprisonment may be served. The Justice Legislation Amendment Act 2010 (Vic) received Royal Assent on 8 June 2010 and the provisions relevant to Subdivision (1D) of Division 2 of Part 3 of the Sentencing Act 1991 (Vic) will commence on proclamation on a date not yet determined.

New paragraph 6(ca) of the Crimes Regulations will prescribe a home detention order made under section 26M of the Sentencing Act 1991 (Vic) as a sentencing option for the purposes of section 20AB of the Crimes Act. This will ensure that current Victorian sentencing legislation is prescribed in the Crimes regulations and allow courts to sentence federal offenders prosecuted in Victoria to home detention.