Crimes Regulations (Amendment) 1996 No. 125
EXPLANATORY STATEMENT
STATUTORY RULES 1996 No. 125
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:
a. Amend Regulation 5 of the Regulations by omitting subregulation 5(2) and substituting a new subregulations 5(2) and 5(2A); and
b. Amend Regulation 6 of the Regulations by omitting paragraph 6 (a) and substituting new paragraph 6 (a)
The Regulations arise as a result of the 1994 amendments made to the Migration Act 1958, and the enactment of the Northern Territory Sentencing Act 1995, which comes into force on 1 July 1996.
Section 19AZD of the Crimes Act enables federal offenders to participate in State/Territory prerelease permit schemes which are prescribed to apply to them by regulation. Sub-regulation 5(2) currently excludes federal prisoners who are, or who may be, liable to deportation from participation in such schemes as such early release triggers deportation before parole eligibility arises. As a result of the Migration Reform Act 1994, persons who are unlawful non-citizens are no longer deportees, but are removees. Unlawful non-citizens serving sentences of imprisonment are issued with a Bridging Visa "E", which permits them to remain in Australia while they are required to serve their sentence of imprisonment. The visa ceases when the offender is released on parole, which is defined in Migration Regulation 1.03 in such a way as to include pre-release schemes. Thus, placement of such an offender on a pre-release scheme would trigger the provisions of the Migration Act 1958, leading to the removal of the prisoner from Australia prior to his becoming eligible for parole.
The proposed Regulations will exclude federal offenders who are liable to removal or deportation from Australia from participation in pre-release schemes that would result in their removal or deportation under the Migration Act 1958 prior to the completion of their non-parole period.
Section 20AB of the Crimes Act enables prescribed State or Territory sentences or orders to apply to federal offenders as alternatives to imprisonment. Home detention orders available under the Criminal Law (Conditional Release of Offenders) Act 1971 (NT) were prescribed by Regulation 6. The Northern Territory Sentencing Act 1995, which commences on 1 July 1996, is replacing that legislation.
The proposed Regulations will prescribe home detention orders made under the Northern Territory Sentencing Act 1995 as an alternative to imprisonment for federal offenders sentenced in the Northern Territory.
Details of the Regulations are:
Regulation 1: This regulation provides that the sub-regulation 4.1 commences on 1 July 1996. The remainder of the regulations will commence on gazettal.
Regulation 2: This regulation provides that the Crimes Regulations are amended by these Regulations.
Regulation 3: This regulation provides that federal offenders who are liable to removal or deportation from Australia are not eligible to participate in pre-release schemes that would result in their removal or deportation prior to the completion of their non-parole period.
Regulation 4: Section 20AB of the Crimes Act enables prescribed State or Territory sentences or orders to apply to federal offenders as alternatives to imprisonment. The amendment to regulation 6 of the Crimes Regulations prescribes home detention orders made under the Northern Territory Sentencing Act 1995 as an alternative to imprisonment for federal offenders sentenced in the Northern Territory.
Overview
The Crimes Regulations (Amendment) 1996 No. 125 was introduced to amend the Crimes Regulations under the Crimes Act 1914, addressing issues arising from the 1994 amendments to the Migration Act 1958 and the enactment of the Northern Territory Sentencing Act 1995. These amendments necessitated changes to the existing regulations to align with the new legislative framework. The Regulations were issued by the authority of the Attorney-General and Minister for Justice and aim to ensure that federal offenders who are liable to removal or deportation are not placed in pre-release schemes that would trigger their removal before completing their non-parole period. Additionally, the Regulations update the prescribed alternative sentencing options for federal offenders in the Northern Territory, replacing the previous home detention orders under the Criminal Law (Conditional Release of Offenders) Act 1971 with those under the new Northern Territory Sentencing Act 1995.
Scope and Application
The Crimes Regulations (Amendment) 1996 No. 125 amends the Crimes Regulations to align with recent legislative changes in the Migration Act 1958 and the Northern Territory Sentencing Act 1995. These regulations apply to federal offenders who are subject to the Crimes Act 1914, specifically targeting those who are liable to be removed or deported from Australia. The amendments exclude these offenders from participating in pre-release schemes that could result in their removal or deportation before completing their non-parole period, thus preventing them from being removed under the Migration Act 1958 prior to parole eligibility. Additionally, the amendments prescribe home detention orders made under the Northern Territory Sentencing Act 1995 as an alternative to imprisonment for federal offenders sentenced in the Northern Territory, reflecting the changes introduced by the 1995 Act. The regulations commence on 1 July 1996, with the exception of certain provisions that take effect upon gazettal. The scope of these regulations is limited to the specified amendments and does not extend to other areas of the Crimes Act or related legislation unless explicitly mentioned in subordinate instruments.
Key Provisions
The main operative sections of the Crimes Regulations (Amendment) 1996 No. 125 (the Regulations) are Regulation 3 and Regulation 4. Regulation 3 (subsections 3(2) and 3(2A)) amends Regulation 5 of the Crimes Regulations by omitting subregulation 5(2) and substituting new subregulations 5(2) and 5(2A). This amendment specifies that federal offenders who are liable to removal or deportation from Australia are not eligible to participate in pre-release schemes that would result in their removal or deportation prior to the completion of their non-parole period. Regulation 4 amends Regulation 6 of the Crimes Regulations by omitting paragraph 6(a) and substituting a new paragraph 6(a). This amendment prescribes home detention orders made under the Northern Territory Sentencing Act 1995 as an alternative to imprisonment for federal offenders sentenced in the Northern Territory.
The obligations and requirements imposed by these Regulations on the parties or entities they govern primarily concern federal offenders, sentencing authorities, and relevant government departments. Federal offenders who are liable to removal or deportation from Australia must comply with the new provisions stipulating their ineligibility to participate in pre-release schemes that could lead to their removal or deportation before completing their non-parole period. Sentencing authorities are required to ensure that these Regulations are adhered to when determining sentencing options for federal offenders in the Northern Territory, specifically by considering home detention orders under the Northern Territory Sentencing Act 1995 as an alternative to imprisonment. Government departments, such as those responsible for immigration and corrections, must implement these changes effectively to avoid any overlap or conflict with the Migration Act 1958 and related regulations.
The Regulations do not explicitly state any specific offences, penalties, or civil/criminal consequences for breach. However, the underlying statutes they amend, particularly the Crimes Act 1914 and the Migration Act 1958, contain provisions that would apply in cases of non-compliance. For instance, breaches related to immigration and deportation could attract penalties under the Migration Act 1958, which can include fines and imprisonment. Similarly, breaches involving the eligibility criteria for pre-release schemes could lead to legal consequences under the Crimes Act 1914. The exact penalties would depend on the specific nature and severity of the breach, as outlined in the relevant statutes.