Commonwealth Numbered Regulations - Explanatory Statements

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CRIMES AMENDMENT REGULATIONS 2001 (NO. 2) 2001 NO. 105

Statutory Rules 2001 No. 105

Issued by the authority of the Minister for Justice and Customs

Crimes Act 1914

Crimes Amendment Regulations 2001 (No. 2)

Section 91 of the Crimes Act 1914 ('the Crimes Act') provides that the Governor-General may make regulations for the purposes of the Crimes Act.

The Crimes Regulations 1990 ('the Principal Regulations') made under the Crimes Act set out various matters necessary to give effect to that Act.

The purpose of the Regulations is to prescribe procedures to determine a person's age in relation to Division 4A of Part 1AA of the Crimes Act. This Division was inserted by the Crimes Amendment (Age Determination) Act 2001 ('the Age Determination Act') and permits prescribed procedures to determine a person's age, where that person is suspected of having committed a Commonwealth offence, or charged with a Commonwealth offence, and where it is not practicable to determine a person's age by other means.

The Age Determination Act received Royal Assent on 7 May 2001 and will commence on 4 June 2001, 28 days after Royal Assent.

Subsection 3ZQA(2) of the Crimes Act (which is located in Division 4A of Part 1AA) provides that regulations may specify a particular procedure to be a prescribed procedure for determining a person's age.

Subsection 3ZQA(4) of the Crimes Act provides that before the Governor-General makes Regulations for the purposes of Division 4A of part 1AA of the Crimes Act the Minister for Justice and Customs must consult the Minister responsible for the administration of the Therapeutic Goods Act 1989. The Minister for Justice and Customs has consulted with the Minister for Health and Aged Care, and that Minister has agreed to the Regulations.

The Regulations amend the Principal Regulations to:

(i)       provide that the taking of an X-ray of the hand and wrist (a wrist radiograph) is a prescribed procedure for the purposes of Division 4A of Part 1AA of the Crimes Act; and

(ii)       describe the medical equipment that must be used to take a wrist radiograph; and

(iii)       describe the appropriately qualified persons who are the only persons who can take a wrist radiograph (a radiographer) and who can interpret a radiograph (a radiologist); and

(iv)       ensure that the appropriate medical and other professional standards apply to the taking of, and interpreting, a wrist radiograph; and

(v)       include information that was specifically requested by the Senate Legal and Constitutional Legislation Committee in its report on the Crimes Amendment (Age Determination) Bill 2001 (ie. an inclusive list of persons who may assist the radiographer in taking a radiographer).

Details of the Regulations follow.

The Amendments

Regulation 1 is a formal clause providing for the citation of these Regulations.

Regulation 2 provides that these Regulations commence upon gazettal. This will not occur before 4 June 200 1, that is, the commencement date of the Age Determination Act.

Regulation 3 contains Schedule 1, which inserts a proposed regulation 6C into the Crimes Regulations 1990.

Subregulation 6C(1) provides that for the purposes of subsection 3ZQA(2) of the Crimes Act 1914 ('the Crimes Act') the procedure specified in regulation 6C is the prescribed procedure for determining a person's age. There is no other prescribed procedure.

Subregulation 6C(2) describes the prescribed procedure that can be carried out under the Crimes Act, namely, a radiograph of a hand and wrist of the person whose age requires determination.

Subregulation 6C(3) specifies the equipment that must be used when carrying out the radiograph of a hand and wrist. Only a medical X-ray unit can be used to carry out a radiograph. The term 'medical X-ray unit' is defined in subregulation 6C(7). This subregulation also stipulates that a radiographer must operate the medical X-ray unit. A radiographer is defined in subregulation 6C(7).

Subregulation 6C(4) stipulates that the radiographer must comply with all relevant safeguards when operating a medical X-ray unit to take a radiograph. These safeguards will minimise health and safety risks to the person undergoing the radiograph.

Subregulation 6C(5) ensures that only an appropriately qualified person, namely a radiologist, can interpret a radiograph. This is an important distinction. Radiographers are trained to operate X-ray equipment safely. However, radiologists are fully trained medical practitioners who have specialised in radiology. Radiologists are the only persons with the requisite medical training to interpret a radiograph and, on that basis, conclude whether a person is likely to be an adult or a juvenile.

Subregulation 6C(6) provides an inclusive list of persons who may assist a radiographer in taking a radiograph of a hand and wrist of another person. This subregulation responds to a request by the Senate Legal and Constitutional Committee in its report on the Crimes Amendment (Age Determination) Bill 2001.

Subregulation 6C(7) contains some important definitions.

A radiographer is defined as a person who is accredited as a radiographer by the Australian Institute of Radiography. The Australian Institute of Radiography is the national professional body in Australia dedicated to radiographers. The Institute accredits tertiary programs in medical radiation science and accredits graduates from these programs. Only those with accreditation from the Institute should practise as radiographers.

A radiologist is defined as a person who is accredited as a radiologist by the Royal Australian and New Zealand College of Radiologists (RANZCR). The RANZCR is a national college that formulates training requirements and conducts examinations for radiologists.

Medical X-ray unit is defined as general diagnostic X-ray equipment that is used primarily to take radiographs. Importantly, the definition does not extend to the specific equipment used for more intrusive fluoroscopy or CT scan procedures.

The term 'relevant standards' is defined so that the correct medical health and safety standards put out by the Australian Institute of Radiography and Royal Australian and New Zealand College of Radiologists apply when carrying out a radiograph. For example, the Institute's 'Guidelines for Professional Conduct for Radiographers and Radiation Therapists' states that the prime concern of radiographers is 'the welfare and safety of patients, staff and the public'.