Crimes Regulations (Amendment)

Administered by Attorney-General's Department

Legislation au F1998B00063 Regulations Not in force Legislative Instrument

Legislation content

Crimes Regulations (Amendment) 1998 No. 68

Explanatory Statement

Statutory Rules 1998 No. 68

Issued by the Authority of the Minister for Justice

Crimes Act 1914

Crimes Regulations (Amendment)

Introduction

The Spent Convictions Scheme

Part VIIC of the Crimes Act 1914 establishes a scheme under which certain criminal convictions are taken to be "spent". The Commonwealth scheme was set up to allow "old" and "minor" convictions to be spent, thus encouraging and assisting the rehabilitation of minor offenders who have not reoffended during the prescribed period.

2.       A conviction is taken to be spent if it is

(i)       relatively minor in nature (the person was not sentenced to imprisonment for the offence or was not sentenced to imprisonment for the offence for more than 2 1/2 years); and

(ii)       a prescribed period of time has elapsed since the conviction (five years where the offence was committed by a minor, ten years in all other cases); and

(iii)       no further offences have been committed during the period referred to in (ii) above.

3.       Subject to certain exclusions, where a person's conviction is "spent" it is lawful for that person to claim (whether on oath or otherwise) that he or she was not charged with or convicted of the offence. Anyone else who knows or could be reasonably expected to know that the conviction is spent is prohibited from disclosing that the person was charged or convicted, or from taking into account the charges or conviction.

Exclusions From the Scheme

4.       There are exclusions from the scheme, many of which are designed to exempt Government bodies to enable them to require disclosure of convictions when assessing the suitability of a person for employment with that government department or agency. There is also a general exclusion set down by paragraph 85ZZH(k) of the Crimes Act exempting "a prescribed person or body, for a prescribed purpose, in relation to a conviction for a prescribed offence" That enables regulations to be made to exclude any organisation (either public or private) from the scheme where that organisation can make out a case for an exclusion. Regulation 8 of the Crimes Regulations (the Regulations) states that the exclusions are set out in schedule 4 to the Regulations.

5.       Citizen Advocacy Western Sydney Incorporated (Citizen Advocacy) applied for exclusion under that exemption.

The Amendments

Exclusion Extended to Citizen Advocacy

6.       Citizen Advocacy is granted a partial exclusion from the application of the spent

convictions scheme. Citizen Advocacy describes itself as "a movement which aims to

recognise, promote and defend the rights and interests of people with intellectual disability".

It engages people to work on a voluntary basis as "advocates". Advocates have a close and

personal relationship with the intellectually disabled. They spend large amounts of time

with them alone, assisting them in a variety of ways, ranging from offering friendship, to

assistance, with financial management. They also act for the disabled in a representative

capacity as a "voice" or advocate.

7.       Subregulation 1.1 provides for the amendment to the Regulations. Schedule 4 to the Regulations is amended by the addition of new item 17 (subregulation 2.1). Citizen Advocacy will be permitted to require a person seeking engagement as a volunteer advocate to disclose convictions of "offences against the person". The description "offences against the person", has a technical meaning and is already used in the regulations relating to spent convictions. Convictions for offences other than "offences against the person" will remain within the spent convictions scheme.

8.       Citizen Advocacy is only being granted an exclusion for the purposes of assessing the suitability of a person to voluntarily act as an advocate and/or to have responsibility for the care of an intellectually disabled person. The scheme applies in the usual way to a person seeking engagement with Citizen Advocacy in any other capacity, whether that engagement is on a voluntary or remunerated basis.

The Views of the Privacy Commissioner

9.       Paragraph 85ZZ(1)(b) of the Crimes Act, requires the Privacy Commissioner to examine any written requests for complete or partial exclusion of persons from the application of the spent convictions scheme and to advise the Minister whether an exclusion should be granted and whether there should be any restrictions on the circumstances in which an exclusion should apply.

10. The Privacy Commissioner was consulted on the request for exclusion by Citizen Advocacy. The Privacy Commissioner supports an amendment to the Regulations granting a partial exclusion to Citizen Advocacy, and restricting that exclusion to offences against the person.

11. The regulations commenced upon gazettal.

Exemption From The Spent Convictions Scheme: Explanatory Statement

 

Overview

The Crimes Regulations (Amendment) 1998 No. 68 was enacted to amend the Crimes Act 1914, introducing an exemption to the spent convictions scheme for Citizen Advocacy Western Sydney Incorporated (Citizen Advocacy). The scheme allows certain criminal convictions to be deemed "spent" after a specific period, promoting the rehabilitation of minor offenders who have not reoffended. However, certain organisations, including government bodies and now Citizen Advocacy, are exempt from the scheme to facilitate the assessment of an individual's suitability for roles involving vulnerable persons. The amendment permits Citizen Advocacy to require volunteers to disclose convictions for "offences against the person" while maintaining the spent convictions scheme for other types of offences. This measure was introduced following consultation with the Privacy Commissioner, who supported the amendment with restrictions on the circumstances of the exclusion. The regulations were issued by the authority of the Minister for Justice and commenced upon gazettal.

Scope and Application

The Crimes Regulations (Amendment) 1998 No. 68, issued under the authority of the Minister for Justice, amends the existing Crimes Regulations to grant a partial exclusion from the spent convictions scheme to Citizen Advocacy Western Sydney Incorporated. The amendment allows this organisation to require prospective volunteer advocates to disclose convictions for "offences against the person" when assessing suitability for roles involving close and personal relationships with intellectually disabled individuals. This exclusion is limited to the context of assessing the suitability of volunteers to act as advocates and to have responsibility for the care of intellectually disabled people. The amendment applies across the Commonwealth and is subject to the conditions specified within the amendment, which restricts the exclusion to "offences against the person". The exclusion does not apply to other engagements with Citizen Advocacy, whether on a voluntary or remunerated basis, which remain subject to the usual operation of the spent convictions scheme. The amendment also notes the consultation with the Privacy Commissioner, who supports the amendment with the specified restrictions.

Key Provisions

The main operative sections of the Crimes Regulations (Amendment) 1998 No. 68 are concerned with the amendment of the Spent Convictions Scheme under the Crimes Act 1914. Section 2 of the Explanatory Statement clarifies that a conviction is deemed "spent" if it is relatively minor, a specified period has passed since the conviction, and no further offences have been committed during that period. Section 3 outlines that a person with a spent conviction can legally claim they were not charged or convicted of the offence, and others are prohibited from disclosing the conviction. The primary focus of these regulations is to facilitate the rehabilitation of minor offenders who have not reoffended within the stipulated timeframe. The obligations and requirements imposed by the Act on the parties it governs are detailed in Section 4. The Act imposes certain exclusions from the spent convictions scheme, primarily to allow government bodies to require disclosure of convictions when assessing an individual's suitability for employment. Section 5 introduces the application by Citizen Advocacy Western Sydney Incorporated for an exclusion from the scheme. Section 7 then details the amendment to the Regulations, permitting Citizen Advocacy to require disclosure of "offences against the person" for individuals seeking to act as volunteer advocates. This amendment ensures that the exclusion applies only to the specific purpose of assessing suitability for volunteer advocacy roles and does not affect other engagements with Citizen Advocacy. The regulations also outline the consequences for breaches. Although the text does not specify offences, penalties, or civil/criminal consequences directly, it can be inferred that any failure to comply with the conditions set out for the exclusion could potentially result in legal ramifications. Given the context, any misuse of the exclusion by Citizen Advocacy, such as requiring disclosure of convictions beyond the specified scope, could lead to legal scrutiny and enforcement actions by relevant authorities. The specific penalties or consequences would depend on the nature of the breach and applicable laws.

Legal classification tags

Area of Law
Criminal Law
Instrument
Regulation
Concepts
Offence Provisions
Reporting & Disclosure Obligations
Exclusions & Exclusions

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