EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 280
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code Amendment Regulations 2006 (No. 8)
Section 5 of the Criminal Code Act 1995 (the Act) provides that the
Governor-General may make regulations prescribing 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. The Schedule to the Act sets out the Criminal Code (the Code).
The Code codifies general principles of criminal responsibility and standardises processes for dealing with offences committed under Commonwealth law. Part 5.3 of the Code (Divisions 100 – 106) include counter-terrorism legislation made after the terrorist attacks in the United States on 11 September 2001.
The Code establishes a comprehensive regime in Division 104 governing the making of a control order for up to 12 months in respect of persons who pose a terrorist risk to the community. The Code also establishes a comprehensive regime in Division 105 for the preventative detention of persons for up to 48 hours where there are reasonable grounds to suspect a person will engage in a terrorist act, possesses a thing connected with the preparation for or engagement in a terrorist act or has done an act in preparation for, or planning a terrorist act.
In order to ensure that the Commonwealth, States and Territories’ preventative detention regimes recognise and operate consistently with one another, section 104.2 in Division 104 and sections 105.6, 105.7, 105.11, 105.42 and 105.52 in Division 105 of the Code refer to a "corresponding State preventative detention law”.
The purpose of the proposed Regulations is to amend the Criminal Code Regulations 2002 (the Principal Regulations) to declare the law relating to preventative detention in Western Australia as a “corresponding State preventative detention law” under subsection 100.1(1) of the Code.
Corresponding preventative detention regimes have been introduced in all of the States and Territories, with the last being Western Australia. The Criminal Code Amendment Regulations 2006 (No. 1) were made on 13 July 2006 declaring the laws relating to preventative detention in each of the States and Territories, except Western Australia, as a “corresponding State preventative detention law”.
Subsection 100.1(1) of the Code defines a “corresponding State preventative detention law” to mean “a law of a State or Territory that is, or particular provisions of a law of a State or Territory that are, declared by the regulations to correspond to Division 105 of this Act.”
The proposed Regulations would also correct a minor error in the Principal Regulations.
Details of the Regulations are set out in the Attachment.
The regulations provide for corresponding State preventative detention laws as defined in the Act. This definition was inserted through the Anti-Terrorism Act (No.2) 2005. All States and Territories agreed to this definition as part of their agreement to the legislation prior to its enactment in December 2005.
In addition, the Attorney-General's Department advised the States and Territories of the Criminal Code Amendment Regulations 2006 (No.1) through the Legal Issues Sub-Committee of the National Counter Terrorism Committee.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
ATTACHMENT
Details of the Criminal Code Amendment Regulations 2006 (No. 8)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2006 (No. 8).
Regulation 2 – Commencement
This regulation provides that the Regulations commence on the day after they are registered. Because the Regulations would be a legislative instrument, the Act requires that they must be registered on the Federal Register of Legislative Instruments to be effective.
Regulation 3 – Amendment of Criminal Code Regulations 2002
This regulation notes that Schedule 1 amends the Criminal Code Regulations 2002.
Schedule 1 – Amendments
Item [1] Subregulations 4(1) and (2)
This item corrects a minor error, omitting reference to ‘of the Act’ and replacing it with ‘of the Code’.
Item [2] Schedule 1, Part 1, after item 1
This item inserts a new item 1A of Schedule 1 after item 1 to declare the Terrorism (Preventative Detention) Act 2006 of Western Australia to be a “corresponding State preventative detention law”.
The effect of this item is to provide that each section in Divisions 104 and 105 of the Criminal Code which refers to a “corresponding State preventative detention law” should be read as referring to all the laws listed in Schedule 1.