Crimes Regulations (Amendment) 1996 No. 264
EXPLANATORY STATEMENT
STATUTORY RULES 1996 No. 264
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL AND MINISTER FOR JUSTICE
Crimes Act 1914
Crimes Regulations (Amendment)
'Section 91 of the Crimes Act 1914 (the Crimes Act) provides that the Governor-General may make regulations, not inconsistent with that Act, prescribing all matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to that Act.
The Crimes Regulations (Amendment) (the Regulations) will amend subregulation 5(3) by deleting the reference to subparagraph 5(1)(d)(i) and replacing it with a reference to subparagraph 5(1)(d)(ii).
The Regulations arise as a result of an oversight in the making of the Crimes Regulations (Amendment), which commenced on 4 November 1996. Regulation 5 of the Crimes Regulations was amended to prescribe (for the purposes of subsection 19AZD(3) of the Crimes Act) a work release order under Part 4, and a home detention order under Part 5, of the Sentence Administration Act 1995 of Western Australia as pre-release schemes in which federal offenders are able to participate.
The oversight relates to the interaction of paragraph 5(1)(d) with subregulation 5(3). Subregulation 5(3) provides that a person convicted of a federal offence is not eligible to participate in the pre-release permit scheme prescribed under subparagraph 5(1)(d)(i), if the person is subject to a recognizance release order in relation to the offence.
Prior to the amendment to regulation 5, subparagraph 5(1)(d)(i) referred to a home detention order under Part IIIA of the Offenders Community Corrections Act 1963 of Western Australia, and subparagraph 5(1)(d)(ii) referred to a work release order under Part IIIB of that Act. As a result of the amendment, subparagraph 5(1)(d)(i) now refers to a work release order made under Part 4 of the Sentence Administration Act 1995 of Western Australia, and subparagraph 5(1)(d)(ii) now refers to a home detention order made under Part 5 of that Act. The reversal of order in the reference to a home detention and a work release order has had the unintended effect that federal offenders in Western Australia who are subject to recognizance release orders are not eligible to participate in the Western Australian work release scheme, but are eligible to participate in the Western Australian home detention scheme. The situation before the Crimes Regulations (Amendment) was, and the intention is, that federal offenders subject to recognizance release orders are not eligible to participate in the Western Australian home detention scheme.
Subsection 19AZD(3) of the Crimes Act permits federal offenders to participate in State or Territory pre-release permit schemes which are prescribed to apply, subject to any conditions relating to eligibility to participate that are specified in the regulations that prescribe that scheme. Subregulation 5(3) was inserted by subregulation 2.3 of the Crimes Regulation (Amendment) No.235 of 1991. That subregulation was made because the Western Australian home detention scheme available under Part IIIA of the Offenders Community Corrections Act 1963 (WA) was restricted in its operation to short term State offenders who did not have a non-parole period. As the federal equivalent to parole release for short term prisoners is release on recognizance, the sub-regulation was inserted to maintain the principle of intrastate parity of treatment of State and federal offenders. Paragraph 59(1)(a) of the Sentence Administration Act 1995 of Western Australia maintains the restriction on eligibility to participate in the home detention scheme by limiting applications to prisoners who are serving, or are yet to serve, terms that are not parole terms (a "parole term" is defined in the Sentencing Act 1995 of Western Australia to mean a term to which a parole eligibility order applies).
The proposed Regulation (Regulation 3) will amend subregulation 5(3) to delete the reference to subparagraph 5(1)(d)(i) and replace it with a reference to subparagraph 5(1)(d)(ii). The proposed Regulation will preclude federal offenders subject to recognizance release orders being eligible to participate in the Western Australian home detention scheme.
Details of the Regulations are:
Regulation 1: This regulation provides that the Regulations commence on gazettal.
Regulation 2: This regulation provides that the Crimes Regulations are amended by these Regulations.
Regulation 3: The amendment to subregulation 5(3) deletes the reference to subparagraph 5(1)(d)(i) and replaces it with a reference to subparagraph 5(1)(d)(ii), giving effect to the original intention that federal offenders subject to recognizance release orders are not eligible to participate in the Western Australian home detention scheme.