Crimes Regulations (Amendment) 1996 No. 7
EXPLANATORY STATEMENT
STATUTORY RULES 1996 No. 7
Issued by the authority of the Attorney-General
Crimes Act 1914
Crimes Regulations (Amendment)
Section 91 of the Crimes Act 1914 (the Crimes Act) provides that the Governor-General may make regulations for the purposes of the Act.
The purpose of the Crimes Regulations (Amendment) is to exempt the Australian Securities Commission from the provisions of the Spent Convictions Scheme for certain purposes.
The Spent Convictions Scheme is contained in Division 3 of Part VIIC of the Crimes Act. This scheme provides a mechanism whereby certain convictions that are over 10 years old can be 'spent'. If a person was convicted of an offence 10 years ago or more, was sentenced to less that 30 months imprisonment and has not reoffended since that conviction then the conviction is spent and the person is legally able to claim, on oath or otherwise, that they were never convicted of the offence. In most circumstances, another person who knows of the offence is not allowed to disclose it without the consent of the person convicted, or to take it into account in any decision making process.
There are some exceptions to the scheme which affect this right of non-disclosure. All these exceptions are listed in section 85ZZH of the Crimes Act 1914.
Under paragraph 85ZZH(k) of the Crimes Act exclusions can be given to:
a prescribed person or body, for a prescribed purpose, in relation to a conviction for a prescribed offence.
These exclusions are listed in schedule 4 of the Crimes Regulations.
Regulation 2 of the amending regulations exempts the ASC from the Spent Convictions Scheme in regard to all offences for the following purposes:
* considering whether to prosecute and making submissions as to sentence; and
* assessing the suitability of persons to be employed by the ASC, or to be a member of the ASC, or to be engaged as a consultant to the ASC, or to be engaged to perform services for the ASC.
The ASC is a statutory body with the primary responsibility of enforcing the Corporations Law. It has general investigative powers which arise where the ASC has reason to suspect that there has been a contravention of a national scheme law, or a contravention of a law of the Commonwealth or of a State or Territory. The latter contravention must concern the management or affairs of a body corporate or involve fraud, or dishonesty and relate to a body corporate, securities or futures contracts. The Attorney-General may direct that the ASC investigate matters similar to those mentioned above.
The scope of the power to investigate includes the power to serve a notice requiring attendance at an examination and to require persons to provide information relevant to a matter being investigated. The person is required to answer questions under oath.
The ASC also has a regulatory role. This relates to the registration of auditors and liquidators, and the licensing of dealers, advisers and brokers involved in futures, securities and investment.
Overview
The Crimes Regulations (Amendment) 1996 No. 7, issued by the authority of the Attorney-General, was enacted to address a specific need within the enforcement of corporate law by amending the Crimes Act 1914. The primary purpose of these amendments is to exempt the Australian Securities Commission (ASC) from the Spent Convictions Scheme for certain purposes. The Spent Convictions Scheme, contained in Division 3 of Part VIIC of the Crimes Act, generally allows individuals who have been convicted of certain offences more than 10 years ago and who have not reoffended to claim that they were never convicted. However, this scheme includes exceptions, which are detailed in section 85ZZH of the Act. Regulation 2 of the amending regulations specifically exempts the ASC from the Spent Convictions Scheme when considering prosecutions and assessing the suitability of individuals for employment or engagement with the ASC. This exemption enables the ASC, which is responsible for enforcing the Corporations Law and has broad investigative powers, to consider relevant past convictions in its regulatory and enforcement activities.
Scope and Application
The Crimes Regulations (Amendment) 1996 No. 7 amends the existing Crimes Regulations to exempt the Australian Securities Commission (ASC) from the Spent Convictions Scheme for certain purposes. The Spent Convictions Scheme, which is part of the Crimes Act 1914, allows for certain convictions that are over 10 years old to be considered'spent', meaning the individual can legally claim that they were never convicted of the offence in most circumstances. However, the amending regulations provide specific exclusions under the Spent Convictions Scheme for the ASC in relation to offences. These exclusions allow the ASC to consider whether to prosecute and make submissions as to sentence, as well as assess the suitability of individuals for employment by or engagement with the ASC, including as members, consultants, or service providers. The ASC, as a statutory body responsible for enforcing the Corporations Law, has broad investigative powers and regulatory roles, including the registration of auditors and liquidators, and the licensing of dealers, advisers, and brokers in securities and futures markets. This amendment ensures that the ASC can effectively carry out its functions by having access to relevant conviction information that would otherwise be restricted by the Spent Convictions Scheme.
Key Provisions
The key sections of the Crimes Regulations (Amendment) 1996 No. 7 pertain to the exemption of the Australian Securities Commission (ASC) from the Spent Convictions Scheme. Specifically, section 85ZZH(k) of the Crimes Act 1914, which allows for prescribed exclusions, is amended by Regulation 2 to exempt the ASC from the Spent Convictions Scheme in certain contexts. This exemption applies to offences that are over 10 years old and where the offender was sentenced to less than 30 months imprisonment, provided they have not reoffended since. The amendment allows the ASC to take into account such convictions when considering whether to prosecute and when assessing the suitability of individuals for employment, membership, consultancy, or service roles within the ASC.
The obligations imposed by the amending regulations on the ASC are primarily related to its investigative and regulatory roles. The ASC must now consider past convictions that would otherwise be spent when making decisions about prosecutions and employment. This means that the ASC can disclose and rely on these convictions without contravening the Spent Convictions Scheme. Additionally, the ASC must adhere to the criteria set out in the amending regulations to ensure that the exemption is applied correctly and consistently.
Failure to comply with the provisions of the Crimes Regulations (Amendment) may result in legal consequences. Although the amending regulations themselves do not specify penalties for non-compliance, breaches of the broader Crimes Act or regulations made under it could lead to civil or criminal penalties. For instance, unauthorised disclosure of spent convictions can result in fines or imprisonment. The maximum penalties for such offences are stipulated in the relevant sections of the Crimes Act and could include substantial fines and imprisonment terms, depending on the severity and intent of the breach.