Crime Amendment Regulations 2002 (No. 3) 2002 No. 186
EXPLANATORY STATEMENT
Statutory Rules 2002 No. 186
Issued by the Authority of the Minister for Justice and Customs
Subject: Crimes Act 1914
Crime Amendment Regulations 2002 (No. 3)
Section 91 of the Crimes Act 1914 (the Act) provides that the Governor-General may make regulations, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
The purpose of the Regulations is to amend the Crimes Regulations 1990 to enable the effective operation of the assumed identities and controlled operations provisions in the Act.
Part IAC of the Act provides for the use of assumed identities by specified Commonwealth and State or Territory participating agencies. The Regulations enable specified classes of officers in State and Territory participating agencies to authorise the acquisition and use of assumed identities under Part IAC. The Regulations also identify the "Western Australian Royal Commission into corrupt or criminal conduct by Western Australian police" as a state participating agency for the purposes of Part IAC and remedy a misdescription of the Australian Security Intelligence Organisation.
The classes of officers in State and Territory participating agencies able to authorise the use of assumed identities would include classes of senior officers in all State and Northern Territory police forces or police services, the NSW Independent Commission Against Corruption, the NSW Crime Commission, the NSW Police Integrity Commission, the Western Australian AntiCorruption Commission and Western Australian Royal Commission. Regulations have previously been made prescribing classes of officers in Commonwealth participating agencies.
Part 1AB of the Act provides for controlled operations to be undertaken in relation to serious Commonwealth offences. In a controlled operation, law enforcement officers allow a criminal scheme to unfold under controlled conditions in order to gather evidence against those who organise crime. The Regulations amend the existing regulation that enables a controlled operation to be conducted in relation to an "offence involving terrorism", so that it refers more specifically to an "offence against Part 5.3 of the Criminal Code". Part 5.3 contains the Commonwealth's new terrorism offences. The inclusion of a reference to Part 5.3 of the Criminal Code makes it clear that the regulation only enables controlled operations to be conducted in relation to specific offences against that Part. This amendment responds to concerns raised by the Senate Standing Committee on Regulations and Ordinances that the reference to "offences involving terrorism" was too broad.
The Regulations commenced on gazettal.
Overview
The Crime Amendment Regulations 2002 (No. 3) were enacted to amend the Crimes Regulations 1990, addressing the need to streamline the effective operation of assumed identities and controlled operations provisions under the Crimes Act 1914. These regulations were issued under the authority of the Minister for Justice and Customs and were designed to support the legislative framework that allows Commonwealth and state or territory agencies to use assumed identities and conduct controlled operations in the investigation and prosecution of serious crimes. The regulations specifically enable certain senior officers within state and territory agencies, as well as Commonwealth agencies, to authorise the acquisition and use of assumed identities. Additionally, they clarify the scope of controlled operations in relation to terrorism offences by aligning the regulations with the specific provisions outlined in Part 5.3 of the Criminal Code, thereby addressing concerns about the previous regulation being too broad. These amendments aim to enhance the legal tools available to law enforcement agencies in tackling serious criminal activities while ensuring clarity and precision in their application.
Scope and Application
The Crime Amendment Regulations 2002 (No. 3) pertain to the Crimes Act 1914 and its subsidiary legislation, specifically the Crimes Regulations 1990, to enhance the effectiveness of provisions concerning assumed identities and controlled operations within the Act. These regulations apply to specified Commonwealth and State or Territory agencies, including police forces and commissions such as the NSW Independent Commission Against Corruption, the NSW Crime Commission, and the Western Australian Anti-Corruption Commission. The Regulations allow senior officers in these agencies to authorise the use of assumed identities and to conduct controlled operations for serious Commonwealth offences. Furthermore, the Regulations identify the "Western Australian Royal Commission into corrupt or criminal conduct by Western Australian police" as a state participating agency for the purposes of Part IAC, and correct a misdescription of the Australian Security Intelligence Organisation. The Regulations also refine the scope of controlled operations to ensure they are specifically applicable to offences against Part 5.3 of the Criminal Code, which encompasses the Commonwealth's new terrorism offences. These amendments address concerns about the previous broad reference to "offences involving terrorism" and ensure that controlled operations are conducted within a legally defined and narrow scope.
Key Provisions
The Regulations, which amend the Crimes Regulations 1990, are designed to facilitate the use of assumed identities and controlled operations under the Crimes Act 1914. Section 91 of the Act allows the Governor-General to issue these regulations to prescribe matters necessary for the Act's operation. The Regulations specifically enable specified classes of officers from participating State and Territory agencies to authorise the use of assumed identities as outlined in Part 1AC of the Act (Section 11.1A). This includes senior officers from various law enforcement bodies such as police forces, integrity commissions, and anti-corruption bodies. Notably, the Western Australian Royal Commission into corrupt or criminal conduct by Western Australian police is identified as a participating agency for assumed identity use, and a misdescription of the Australian Security Intelligence Organisation is corrected.
These Regulations impose specific obligations on participating agencies and their officers. For instance, officers authorised to use assumed identities must adhere to the provisions set out in the Regulations, ensuring that the use of assumed identities is lawful and necessary for their investigative functions. Similarly, the Regulations outline the requirements for conducting controlled operations under Part 1AB of the Act, such as ensuring that these operations are conducted under controlled conditions to gather evidence against serious Commonwealth offences. The Regulations clarify that controlled operations can only be conducted in relation to offences specified under Part 5.3 of the Criminal Code, which pertains to terrorism offences, thus addressing previous concerns about the broadness of the term "offences involving terrorism".
Failure to comply with the requirements of the Regulations may result in legal consequences. While the specific offences and penalties are not detailed in the explanatory statement, breaches of the Crimes Act 1914 or its Regulations could potentially lead to criminal charges, fines, or other civil liabilities. The seriousness of the consequences would depend on the nature and extent of the breach, with potential penalties varying widely based on the specific provisions of the Act and any relevant sentencing guidelines. The Regulations came into effect immediately upon gazettal, ensuring that the amendments are in force and enforceable from that date.