Crimes Amendment Regulations 2000 (No. 3) 2000 No. 219
EXPLANATORY STATEMENT
STATUTORY RULES 2000 No. 219
Issued by the authority of the Minister for Justice and Customs
Crimes Act 1914
Crimes Amendment Regulations 2000 (No. 3)
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 Crimes Amendment Regulations is to exempt prison administrations in New South Wales, Queensland and Tasmania 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 Act. This scheme provides a mechanism whereby certain convictions that are over 10 years old can be Q 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 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 amending regulations exempts prison administrations in New South Wales, Queensland and Tasmania from the provisions of the Spent Convictions Scheme for the purpose of assessing the suitability of a person to have responsibility for the care or control of prisoners. The exclusion operates in respect of offences involving violence.
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 and Corrective Services in the Australian Capital Territory. The exclusions are an accordance with the recommendation of the Privacy Commissioner.
The Regulations commence on gazettal.
Overview
The Crimes Amendment Regulations 2000 (No. 3) were enacted in 2000 by the Commonwealth Parliament, specifically to address the need for certain exemptions within the Spent Convictions Scheme under the Crimes Act 1914. This scheme allows individuals with convictions that are over a decade old, or five years for those convicted as minors, and who have not re-offended, to declare that they were never convicted of the offence. However, the policy objective of these regulations is to provide a safeguard by exempting specific prison administrations from the application of this scheme for assessing the suitability of individuals to care for or control prisoners. The intent behind this exemption is to ensure that individuals with a history of violent offences do not have positions of responsibility over vulnerable prisoners. The regulations apply to prison administrations in New South Wales, Queensland, and Tasmania, aligning with similar exclusions already in place for other states and territories, as recommended by the Privacy Commissioner.
Scope and Application
The Crimes Amendment Regulations 2000 (No. 3) pertain to the Crimes Act 1914, specifically modifying the Spent Convictions Scheme. This scheme, which is designed to allow certain convictions that are over 10 years old to be considered 'spent', exempts individuals from having to disclose such convictions, except under specific circumstances. The amendments focus on providing exemptions for prison administrations in New South Wales, Queensland, and Tasmania when assessing the suitability of individuals for roles involving the care or control of prisoners, particularly in relation to violent offences. This exemption is intended to protect prisoners, who are in a vulnerable position, from those with a history of violence. These regulations are consistent with similar exclusions already in place for other states and territories in Australia, and they align with recommendations from the Privacy Commissioner. The regulations extend their jurisdictional reach across the specified states, ensuring a uniform approach to prisoner safety and suitability assessments, and they commence upon gazette publication.
Key Provisions
The main operative sections of the Crimes Amendment Regulations 2000 (No. 3) pertain to the exclusion of certain prison administrations in New South Wales, Queensland, and Tasmania from the Spent Convictions Scheme (section 3). This exclusion is for the specific purpose of assessing a person's suitability for roles involving the care or control of prisoners, particularly where the offences in question involve violence (section 4). The exclusion is in line with existing exclusions for other states and territories and follows a recommendation from the Privacy Commissioner.
The Act imposes specific obligations on the prison administrations in the mentioned jurisdictions. These administrations must now disclose certain convictions that would otherwise be considered'spent' under the Spent Convictions Scheme. This requirement is crucial for determining the suitability of individuals for roles that involve direct responsibility for the care or control of prisoners (section 4). By mandating this disclosure, the legislation aims to ensure that individuals with a history of violence are not placed in positions of authority over prisoners, thereby protecting the vulnerable population of prisoners.
Any breaches of these regulations may lead to civil or criminal consequences, although specific penalties are not detailed in the explanatory statement. The regulations are designed to maintain the integrity of the Spent Convictions Scheme while addressing specific concerns about the safety and security of prisoners. The overarching aim is to strike a balance between an individual's right to privacy regarding old convictions and the need for public safety, particularly in sensitive roles like those involving the care or control of prisoners.