EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 3
Issued by the authority of the Minister for Home Affairs
Crimes Act 1914
Crimes Amendment Regulations 2009 (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 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.
Following the 2003 Senate Foreign Affairs, Defence and Trade Committee Inquiry into the Effectiveness of Australia’s Military Justice System and its subsequent report in June 2005, a number of reforms to the military justice system were implemented and included in the Defence Legislation Amendment Act 2006 (DLAA06).
The Regulations make a consequential amendment to the Crimes Regulations 1990 (the Principal Regulations) which are required to reflect amendments made by the DLAA06.
Part VIIC of the Act deals with pardons, quashed convictions and spent convictions
Broadly, a conviction is spent if 10 years have elapsed from the date of the conviction and the individual has not re-offended during that 10 year period. In particular, section 85ZV of the Act provides that, subject to Division 6 of Part VIIC, a person is not required to disclose the fact of a spent conviction to any person. Division 6 provides for exceptions to this general provision and paragraph 85ZZH(k) of the Act provides for the disclosure of information about convictions to prescribed persons or bodies. Schedule 4 to the Principal Regulations specifies the prescribed persons for the purposes of Division 6.
Following the amendments made by the DLAA06, the Defence Force Discipline Rules 1985 no longer exist. In their place, the Summary Authority Rules, made pursuant to section 149A of the Defence Force Discipline Act 1982 (DFDA), contain those (and additional) matters that were in the Defence Force Discipline Rules 1985 in relation to the practice and procedure for the conduct of summary trials.
Item 3 of Schedule 4 of the Principal Regulations specifies the Director of Military Prosecutions or a prosecutor ‘referred to in rule 50 of the Defence Force Discipline Rules 1985’, who are considering whether to prosecute or make submissions and decisions as to sentence (in respect of all offences in the DFDA), as ‘prescribed persons’. As the reference to the Defence Force Discipline Rules 1985 is no longer accurate, the Regulations replace this reference with a reference to ‘rule 37 of the Summary Authority Rules’.
The combined effect of the provisions of the Act, the Principal Regulations as amended and the substantive content of rule 37, have not changed.
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The Principal Regulations are administered by the Attorney-General’s Department; amendments to these Regulations required the approval of the Minister for Home Affairs. The Minister agreed to the amendment and also agreed that the Minister for Defence Science and Personnel recommend them on his behalf.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations are a legislative instrument for the purpose of the Legislative Instruments Act 2003.
The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
There has been no consultation in the making of this instrument as it relates to the management and service of members of the ADF.
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Overview
The Crimes Amendment Regulations 2009 (No. 1) were enacted to address the need for updating the Crimes Regulations 1990 in light of the Defence Legislation Amendment Act 2006 (DLAA06). These regulations were issued under the authority of the Minister for Home Affairs, reflecting the legislative framework provided by the Crimes Act 1914. The primary policy objective of these amendments was to ensure that the regulatory provisions align with the structural and procedural reforms introduced by the DLAA06, particularly in relation to the military justice system. The regulations make a consequential amendment to the Principal Regulations to reflect the discontinuation of the Defence Force Discipline Rules 1985 and the introduction of the Summary Authority Rules, ensuring that the regulatory framework remains consistent with current legislative requirements. This amendment maintains the existing provisions concerning pardons, quashed convictions, and spent convictions, ensuring that the substantive legal content remains unchanged while updating references to reflect current regulatory practices.
Scope and Application
The Crimes Amendment Regulations 2009 (No. 1) pertains to the Crimes Act 1914 and specifically amends the Crimes Regulations 1990 to reflect legislative changes enacted by the Defence Legislation Amendment Act 2006. These regulations apply to individuals and entities involved in the Australian Defence Force (ADF) justice system, particularly in the context of military trials and disciplinary procedures. The regulations are designed to ensure the smooth operation of the military justice system by aligning existing regulations with the new legislative framework. Geographically, these regulations have a national reach, as they apply across Australia and are administered by the Attorney-General’s Department with the approval of the Minister for Home Affairs. The substantive content of the regulations remains unchanged, but the references to outdated rules have been updated to reflect current military justice practices. Notably, the regulations do not specify any exclusions, exemptions, or thresholds for their application, and they extend their application through subordinate instruments such as the Summary Authority Rules.
Key Provisions
The main operative sections of the Crimes Amendment Regulations 2009 (No. 1) (the Regulations) address the necessary amendments to the Crimes Regulations 1990 (the Principal Regulations) following the implementation of reforms to Australia's military justice system. These reforms were a result of the 2003 Senate Foreign Affairs, Defence and Trade Committee Inquiry and subsequent report. Section 91 of the Crimes Act 1914 allows the Governor-General to make regulations to carry out or give effect to the Act. The Regulations amend the Principal Regulations to reflect the changes made by the Defence Legislation Amendment Act 2006 (DLAA06), which includes the replacement of the Defence Force Discipline Rules 1985 with the Summary Authority Rules. This change is necessary because the Summary Authority Rules now contain the practice and procedure for the conduct of summary trials that were previously in the Defence Force Discipline Rules.
The Regulations impose several obligations on the parties they govern. Firstly, they require that the Principal Regulations be updated to reflect the changes made by the DLAA06. Specifically, the Regulations amend Schedule 4 of the Principal Regulations to replace references to the Defence Force Discipline Rules 1985 with references to rule 37 of the Summary Authority Rules. This amendment ensures that the regulatory framework aligns with the current legislative and procedural requirements of the military justice system. Additionally, the Regulations specify that the Director of Military Prosecutions and prosecutors considering whether to prosecute or making submissions and decisions as to sentence, as per rule 37 of the Summary Authority Rules, are considered ‘prescribed persons’ for the purposes of Division 6 of Part VIIC of the Act. These prescribed persons are required to follow the rules and regulations as they pertain to the disclosure of information about convictions.
The Regulations also set out the consequences for non-compliance with the provisions outlined in the Act and the Principal Regulations. While the Act itself does not specify penalties for breaches, it does detail the offences, penalties, or civil/criminal consequences for failing to comply with the regulations. The severity of these consequences can vary, but they generally include fines and imprisonment terms, depending on the nature and gravity of the breach. For instance, knowingly providing false information or failing to disclose a relevant conviction when required by law can lead to criminal charges. The maximum penalties for such offences can be substantial, reflecting the importance of compliance with the regulatory framework. Additionally, non-compliance may also result in civil liabilities, such as compensation for any harm caused by the breach, or administrative penalties imposed by the relevant authorities. These consequences are intended to enforce adherence to the regulations and ensure the proper functioning of the military justice system.