EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 127
Issued by the authority of the Attorney General
Crimes Regulations 1990
Crimes Amendment Regulations 2006 (No. 1)
Section 91 of the Crimes Act 1914 (the Act) provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters that by the Act are required or permitted to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
On 12 June 2006, amendments made to the Defence Force Discipline Act 1982 (DFDA) by the Defence Legislation Amendment Act 2005 (No. 2) (DLAA) came into effect.
Misconduct by Australian Defence Force (ADF) personnel is regulated by the DFDA. The DLAA repeals section 102 of the DFDA which provided for the appointment of a ‘convening authority’. The DLAA inserts section 188G into the DFDA to replace a ‘convening authority’ with the Director of Military Prosecutions (DMP).
The ‘convening authority’ in item 3, Schedule 4 of the Crimes Regulations 1990 (the principal Regulations) is exempt from the Commonwealth spent convictions scheme. That is, it gives a convening authority access to a person’s criminal history despite the spent convictions scheme. The item will become ineffective as section 102 of the DFDA has been repealed.
The amending Regulations replace the reference to a ‘convening authority’ with the reference to the DMP in item 3, Schedule 4. The DMP is now able to access the past convictions of ADF personnel when considering whether to prosecute, and when making submissions and decisions on sentencing.
In the same item, the amending Regulations also replace a reference to a prosecutor in rule 42 of the Defence Force Discipline Rule 1985 with a reference to rule 50. The reference to rule 50 is more accurate as rule 42 merely refers to a prosecutor’s opening address, whereas rule 50 refers to the power of a prosecutor generally. The amendment clarifies any ambiguity that surrounded the interpretation of the item.
The regulation commence on the day after registration.
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 indirect effect on business.
Authority: Section 91
of the Crimes Act 1914
Overview
The Crimes Amendment Regulations 2006 (No. 1) were introduced to amend the Crimes Regulations 1990 in response to changes made by the Defence Legislation Amendment Act 2005 (No. 2). These amendments, which came into effect on 12 June 2006, were aimed at updating the regulatory framework concerning the regulation of misconduct by Australian Defence Force (ADF) personnel. Specifically, the Defence Legislation Amendment Act repealed section 102 of the Defence Force Discipline Act 1982, which had provided for the appointment of a 'convening authority'. In its place, the Act inserted section 188G, which mandates that the Director of Military Prosecutions (DMP) assume the role previously held by the convening authority. The Crimes Amendment Regulations were made under section 91 of the Crimes Act 1914, which allows for the creation of regulations that are necessary to carry out or give effect to the Act. These regulations ensure that the DMP has access to the past convictions of ADF personnel when making decisions on prosecution and sentencing, aligning with the policy objective of streamlining the disciplinary process within the ADF.
The explanatory statement for the Crimes Amendment Regulations 2006 (No. 1) indicates that consultation was deemed unnecessary for this legislative instrument, as it is considered to be of a minor or machinery nature and does not substantially alter existing arrangements. The regulation came into effect on the day after its registration, ensuring that the transition from the convening authority to the DMP is smooth and without significant disruption. The amendments also include a clarification of a reference within the Defence Force Discipline Rule 1985, improving the accuracy and interpretation of the regulatory text.
Scope and Application
The Crimes Amendment Regulations 2006 (No. 1) apply to the administration and prosecution of misconduct within the Australian Defence Force (ADF) as governed by the Defence Force Discipline Act 1982. These regulations amend the Crimes Regulations 1990 to reflect the changes introduced by the Defence Legislation Amendment Act 2005 (No. 2), which replaced the role of a 'convening authority' with the Director of Military Prosecutions (DMP). Specifically, the regulations update references to ensure the DMP has the necessary access to the criminal histories of ADF personnel when considering prosecutions and sentencing, thereby aligning with the new legislative framework. These amendments are necessary to maintain the effectiveness and clarity of the legal process within the ADF. The regulations have a direct jurisdictional reach, applying only to the Commonwealth and specifically to the ADF, with no stated geographic limitations beyond this scope. The amendments do not introduce any new exclusions, exemptions, or thresholds but rather clarify and update existing provisions to reflect legislative changes.
Key Provisions
The main operative sections of the Crimes Amendment Regulations 2006 (No. 1) (the Regulations) primarily concern the adjustment of the Defence Force Discipline Act 1982 (DFDA) in light of the Defence Legislation Amendment Act 2005 (No. 2) (DLAA). Specifically, section 188G of the DFDA replaces the previously utilised concept of a 'convening authority' with the Director of Military Prosecutions (DMP) for handling misconduct by Australian Defence Force (ADF) personnel (section 188G). This alteration is mirrored in item 3, Schedule 4 of the Crimes Regulations 1990 (the principal Regulations) to reflect that the DMP, rather than the convening authority, will now have access to the past convictions of ADF personnel when deciding whether to prosecute and in sentencing deliberations.
The Regulations impose specific obligations on the DMP and other entities involved in military justice proceedings. The DMP must now be notified of any offence committed by ADF personnel, which aligns with the role previously held by the convening authority. Moreover, the DMP is tasked with considering past convictions when making decisions on prosecution and sentencing, ensuring that the military justice system operates with the necessary context regarding an individual’s criminal history. Additionally, rule 42 of the Defence Force Discipline Rule 1985 is amended to clarify that the prosecutor’s power is referenced under rule 50, thereby providing a more accurate and comprehensive understanding of prosecutorial authority within the military justice framework.
Failure to comply with the provisions of the Act and the Regulations could result in civil or criminal penalties. For instance, if an entity or individual fails to notify the DMP of an offence committed by ADF personnel, they could be subject to disciplinary action or other legal repercussions. Additionally, misuse of information or improper access to criminal history records could result in significant legal consequences, including fines and imprisonment. While the specific maximum penalties are not detailed in the explanatory statement, they are typically outlined in the relevant sections of the DFDA and the Crimes Act 1914. The seriousness of these offences underscores the importance of adhering to the regulations set forth by the Act and its subordinate legislation.