Crimes Amendment Regulations 2000 (No. 2) 2000 No. 100
EXPLANATORY STATEMENT
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.
Overview
The Crimes Amendment Regulations 2000 (No. 2) were enacted to address specific gaps in the existing Spent Convictions Scheme under the Crimes Act 1914, aiming to ensure that certain organisations can appropriately assess the suitability of their employees. This was achieved by exempting two categories of bodies from the Spent Convictions Scheme for specific purposes, and by making minor corrections to the Crimes Regulations. The Regulations were made by the Minister for Justice and Customs under the authority granted by section 91 of the Crimes Act 1914. The primary objective was to enable bodies that employ or engage persons to provide advocacy services to or care for intellectually disabled persons, and bodies that employ or engage persons to control or care for detainees under the Migration Act 1958, to consider otherwise spent convictions when assessing the suitability of their employees, thereby protecting the vulnerable populations they serve. The amendments also corrected references within the Crimes Regulations to reflect changes in organisational names and correct a numbering error.
Scope and Application
The Crimes Amendment Regulations 2000 (No. 2) 2000 No. 100, issued under the authority of the Minister for Justice and Customs, amend the Crimes Act 1914 to introduce specific exemptions to the Spent Convictions Scheme for certain bodies and purposes. The Spent Convictions Scheme, outlined in Division 3 of Part VIIC of the Act, generally allows individuals who have not re-offended within ten years of a conviction to legally claim that the conviction never occurred. This Act applies to any person or entity that employs individuals to provide services or care for vulnerable groups such as intellectually disabled persons or detainees under the Migration Act 1958. The geographic reach of these regulations is national, applying across all states and territories in Australia. The amendments exempt two categories of bodies from the Spent Convictions Scheme: bodies that employ or engage persons to provide advocacy services to intellectually disabled individuals for assessing the suitability of these persons, and bodies that employ or engage persons to control or care for detainees under the Migration Act for assessing the suitability of these persons. The regulations also include minor corrections to references in the Crimes Regulations, such as updating the name of the Australian Securities Commission to the Australian Securities and Investments Commission, and correcting a numbering error in the regulations. These regulations commence upon gazettal.
Key Provisions
The Crimes Amendment Regulations 2000 (No. 2) 2000 No. 100, under section 91 of the Crimes Act 1914, establish regulations to implement the Act. The main operative sections of these regulations primarily aim to exempt certain bodies from the Spent Convictions Scheme for specific purposes and to make minor corrections to existing regulations. Specifically, Schedule 1 of the amending regulations exempts two categories of bodies from the Spent Convictions Scheme. The first exemption pertains to bodies that employ or engage persons to provide advocacy services or care for intellectually disabled persons. This exemption allows these bodies to consider spent convictions for offences against the person when assessing the suitability of individuals to act as advocates or carers for intellectually disabled persons (item 3). The second exemption applies to bodies that employ or engage persons to control or care for detainees under the Migration Act 1958. This exemption enables these bodies to consider spent convictions when assessing the suitability of individuals to have responsibility for the care or control of detainees (item 4).
These regulations impose obligations on the entities covered by the exemptions, requiring them to take into account otherwise spent convictions in their suitability assessments for roles involving advocacy services for intellectually disabled persons and control or care for immigration detainees. The rationale behind these obligations is the need to protect vulnerable individuals from potential risks posed by individuals with a history of certain criminal behaviour.
There are no specific offences or penalties outlined in these regulations; however, failure to comply with the requirements could lead to civil or administrative consequences. For instance, employing an unsuitable person in a sensitive role could result in legal action or regulatory penalties. Additionally, the amendments correct errors in the Crimes Regulations, ensuring that references are accurate and that the regulatory framework operates as intended.
The minor corrections address two issues: the first corrects a reference in Schedule 4 of the Crimes Regulations to reflect the name change of the Australian Securities Commission to the Australian Securities and Investments Commission (item 2 of Schedule 1). The second corrects a numbering error in the heading of Schedule 3B of the Crimes Regulations by replacing the reference to regulation 6A (item 1 of Schedule 1). These amendments are intended to ensure clarity and accuracy in the regulatory framework. The Regulations take effect upon gazette.