Crimes Amendment Regulations 1999 (No. 1) 1999 No. 156
EXPLANATORY STATEMENT
STATUTORY RULES 1999 NO. 156
Issued by the authority of the Minister for Justice and Customs
Crimes Act 1914
Crimes Amendment Regulations 1999 (No. 1)
Section 91 of the Crimes Act 1914 (the Crimes Act) provides that the GovernorGeneral may make regulations for carrying out or giving effect to the Crimes Act.
The purpose of the Crimes Amendment Regulations is to exempt ACT Corrective Services from the provisions of the Spent Convictions Scheme for certain purposes.
The Spent Convictions Scheme is contained in Division 3 of Part VIIC of the Crimes Act. This scheme provides a mechanism whereby certain convictions that are over 10 years old can be '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 reoffended 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 85ZZH(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 regulations excludes ACT Corrective Services from the Spent Convictions Scheme for the purpose of assessing the suitability of a person to have responsibility for the care and control of prisoners (including detainees), in relation to offences involving violence.
ACT Corrective Services is responsible for the provision of correctional services to the ACT community. It monitors compliance with court orders and reports to the court when these orders are not complied with. It also monitors compliance with Parole Board orders. ACT Corrective Services prepares pre-sentence and other reports for the courts as required. It has a duty of care towards people held in custody in the ACT, including detainees remanded into custody under the Remand Centres Act 1976 and those detained under the Periodic Detention Act 1995. The Service also provides custodial escort services in respect of arrested persons under the Custodial Escorts Act 1998.
ACT Corrective Services provides advisory services to the ACT Government, develops, implements and reviews sentencing options and monitors and reviews contract arrangements relating to the custody and care of sentenced ACT prisoners in NSW institutions. ACT Corrective Services is also required to detail its functions, procedures and policies in annual reports to government.
The rationale for the exclusion is that prisoners are in a vulnerable position and need to be protected from persons with a history of violence. Exclusions have previously been prescribed in relation to prison administrations in Victoria, South Australia, Western Australia and the Northern Territory. The exclusion is an accordance with the recommendation of the Privacy Commissioner.
The Regulations commence on gazettal.
Overview
The Crimes Amendment Regulations 1999 (No. 1), issued under the authority of the Minister for Justice and Customs, amend the Crimes Act 1914 to exempt ACT Corrective Services from the provisions of the Spent Convictions Scheme for certain purposes. This legislative amendment was enacted to ensure that ACT Corrective Services can assess the suitability of individuals for roles involving the care and control of prisoners, including detainees, with regard to convictions for violent offences. The Spent Convictions Scheme generally allows for certain convictions over a certain age to be considered 'spent' and not disclosed, but this regulation creates an exception for the specified purposes of ACT Corrective Services. This exclusion aims to safeguard prisoners by ensuring that those with a history of violence do not hold positions of responsibility over them, aligning with the recommendations of the Privacy Commissioner and similar provisions in other Australian jurisdictions.
Scope and Application
The Crimes Amendment Regulations 1999 (No. 1) aim to modify the scope of the Spent Convictions Scheme under the Crimes Act 1914, specifically to exempt ACT Corrective Services from certain obligations of the Scheme. This Act applies to ACT Corrective Services, which is responsible for the provision of correctional services to the Australian Capital Territory community, including the oversight of prisoners and detainees. The regulation seeks to exclude this entity from the requirement to observe the Spent Convictions Scheme when assessing the suitability of individuals for roles involving the care and control of prisoners, particularly in cases where the conviction involves violence. This exemption allows ACT Corrective Services to consider past convictions involving violence when making decisions about who should be responsible for the care and control of prisoners, which is deemed necessary for the protection of vulnerable individuals in custody. The scope of the amendment is confined to the Australian Capital Territory, and the exclusion is in line with recommendations from the Privacy Commissioner and similar measures implemented in other states and territories. The Regulations take effect upon gazette publication.
Key Provisions
The main operative sections of the Crimes Amendment Regulations 1999 (No. 1) include Section 91 of the Crimes Act 1914, which allows the Governor-General to make regulations for carrying out or giving effect to the Act, and the newly introduced regulations themselves, which are detailed in Schedule 1. These regulations specifically aim to exempt the ACT Corrective Services from the provisions of the Spent Convictions Scheme for certain purposes. The Spent Convictions Scheme, found in Division 3 of Part VIIC of the Crimes Act, allows certain convictions that are over ten years old to be considered 'spent'. If a person has not reoffended since their conviction and the sentence was less than 30 months, they can lawfully state they were never convicted of the offence.
The obligations imposed by these regulations are primarily on the ACT Corrective Services. They are required to assess the suitability of individuals to have responsibility for the care and control of prisoners, including detainees, by considering past convictions for offences involving violence. This is irrespective of whether the convictions have been spent under the Spent Convictions Scheme. The rationale behind this is the protection of vulnerable prisoners from individuals with a history of violence. This assessment is crucial for ensuring the safety and security within correctional facilities and aligns with the recommendations of the Privacy Commissioner.
Failure to comply with these regulations could result in serious consequences. While specific offences and penalties are not outlined in the explanatory statement, it is understood that any breaches of the regulations could lead to civil or criminal liabilities under the Crimes Act 1914. The maximum penalties for breaches of the Crimes Act can include substantial fines and imprisonment, depending on the severity and nature of the offence. ACT Corrective Services must ensure that their processes adhere to these regulations to avoid any potential legal repercussions.