EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 202
Issued by the Authority of the Minister for Justice and Customs
Crimes Act 1914
Crimes Amendment Regulations 2005 (No. 3)
Section 91 of the Crimes Act 1914 (the Act) provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing 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.
Paragraph 85ZZH(k) of the Act provides that the federal spent convictions scheme does not apply in relation to a prescribed person or body, for a prescribed purpose, in relation to a conviction for a prescribed offence.
The federal spent convictions scheme is contained in Part VIIC of the Act. The scheme provides that certain types of convictions become ‘spent’ after a waiting period has elapsed in which no further convictions are recorded against the offender. Where a person’s conviction for an offence is spent, the offender is not obliged to disclose that prior conviction.
The right of non-disclosure is subject to the exclusions listed in section 85ZZH of the Act, and in Schedule 4 of the Crimes Regulations 1990 (the Principal Regulations).
The purpose of the Regulations is to amend the Principal Regulations to prescribe new exclusions from the federal spent convictions scheme. The Regulations also correct minor technical errors in the Principal Regulations.
The Regulations amend Schedule 4 of the Principal Regulations to add a new exclusion to the spent convictions scheme. The exclusion allows a body that issues a maritime security identification card (MSIC) to access relevant spent convictions when assessing whether to issue a MSIC to an applicant.
The purpose of a MSIC is to identify the card holder as having met the minimum security requirements to work in a Maritime Security Zone.
The Regulations provide that an issuing body, for the purpose of assessing whether to issue a MSIC, may access spent convictions for offences in the following areas – security of the Commonwealth, weapons of mass destruction, offences against the Government, serious crimes involving aviation or maritime transport, identity crimes, money laundering, people smuggling and offences relating to explosive, firearms, narcotics and hazardous materials.
The Regulations also make minor technical amendments to provide the correct cross-reference to a provision and the correct reference to the regulations mentioned in subregulation 8(2) of the Principal Regulations.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on 1 October 2005.
The federal Privacy Commissioner was consulted in accordance with paragraph 85ZZ(1)(b) of the Act.
Other consultation was unnecessary for this legislative instrument as this instrument is of a minor or machinery nature and does not substantially alter existing arrangements. It has no direct, or substantial indirect effect on business.
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Overview
The Crimes Amendment Regulations 2005 (No. 3) were enacted to address the need for certain bodies to access spent convictions for specific purposes, particularly in the context of issuing maritime security identification cards (MSIC). This amendment was made under the authority of the Minister for Justice and Customs, as provided by Section 91 of the Crimes Act 1914, to ensure that the regulations do not conflict with the overarching Act. The primary policy objective of these Regulations is to allow bodies that issue MSICs to access relevant spent convictions for assessing the suitability of applicants, thereby enhancing the security measures within Maritime Security Zones. The Regulations were designed to be of a minor nature, with no substantial effect on business, and thus did not require extensive consultation beyond the federal Privacy Commissioner, in line with the requirements of the Act. These Regulations came into effect on 1 October 2005.
Scope and Application
The Crimes Amendment Regulations 2005 (No. 3) amend the Crimes Regulations 1990 to introduce new exclusions to the federal spent convictions scheme under the Crimes Act 1914. Specifically, the Regulations allow bodies that issue maritime security identification cards (MSIC) to access spent convictions in certain areas when assessing applicants for these cards. This amendment applies to bodies involved in issuing MSICs and the individuals applying for these cards, with a specific focus on offences related to the security of the Commonwealth, weapons of mass destruction, government offences, serious crimes involving aviation or maritime transport, identity crimes, money laundering, people smuggling, and offences involving explosives, firearms, narcotics, and hazardous materials. These regulations apply nationally, in accordance with the scope of the Crimes Act 1914, which operates across the Commonwealth of Australia. The exclusions are limited to the specific purposes of assessing MSIC applications and do not extend to other areas where the spent convictions scheme would otherwise apply. The Regulations are intended to ensure that relevant security assessments can be made without being hindered by the general non-disclosure provisions of the spent convictions scheme, while still maintaining the balance of privacy and security interests.
Key Provisions
The Crimes Amendment Regulations 2005 (No. 3) primarily amend the Crimes Regulations 1990 by adding a new exclusion to the federal spent convictions scheme under the Crimes Act 1914. This amendment is detailed in Schedule 4 of the Regulations. Specifically, section 4(1) introduces an exclusion that allows a body responsible for issuing a maritime security identification card (MSIC) to access relevant spent convictions when determining whether to issue a MSIC to an applicant. This body can access spent convictions for certain prescribed offences, including those related to the security of the Commonwealth, weapons of mass destruction, offences against the Government, serious crimes involving aviation or maritime transport, identity crimes, money laundering, people smuggling, and offences relating to explosive, firearms, narcotics, and hazardous materials.
Under these Regulations, the issuing bodies are given a specific obligation to assess the spent convictions of applicants for a MSIC. This obligation is intended to ensure that only those individuals who meet the necessary security criteria are granted a MSIC, which identifies the cardholder as having met the minimum security requirements to work in a Maritime Security Zone. This obligation is outlined in section 4(2) of Schedule 4 of the Regulations, which details the types of offences that can be considered during the assessment process.
In addition to the obligations, the Regulations also include minor technical amendments to correct cross-references and ensure the correct referencing of provisions in the Principal Regulations. These technical amendments are aimed at maintaining the accuracy and integrity of the regulatory framework, ensuring that it operates smoothly and effectively. The Regulations also note that the federal Privacy Commissioner was consulted in accordance with section 85ZZ(1)(b) of the Act, and that other consultation was deemed unnecessary due to the minor nature of the changes.
Any breach of the provisions contained in these Regulations could potentially result in legal consequences. However, the Regulations themselves do not explicitly outline specific offences, penalties, or consequences for non-compliance. Such consequences would typically be found in the Crimes Act 1914 or other relevant legislation. The Regulations focus primarily on setting out the exclusions and obligations relevant to the federal spent convictions scheme and the issuance of MSICs, ensuring that the scheme operates within the legal framework provided by the Act.