EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 139

Issued by the Authority of the Attorney‑General

Crimes Act 1914

Crimes Amendment Regulations 2007 (No. 2)

Section 91 of the Crimes Act 1914 (‘the Act’) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all 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 federal spent convictions scheme is contained in Part VIIC of the Act. The scheme provides that certain types of convictions become ‘spent’ after a waiting period has elapsed in which no further convictions are recorded against the offender. Where a person’s conviction for an offence is spent, the offender is not obliged to disclose that prior conviction. The right of non-disclosure is subject to the exclusions listed in section 85ZZH of the Act, and in Schedule 4 to the Crimes Regulations 1990 (the Principal Regulations).

The purpose of the Regulations is to amend the Principal Regulations to prescribe a new exclusion from the federal spent convictions scheme to support the operation of the AusCheck scheme under the AusCheck Act 2007. The Regulations also make two technical amendments to the Principal Regulations.

The amendments to the Principal Regulations support the role of AusCheck, a division of the Attorney‑General's Department, in coordinating the background checks for applicants for aviation security identification cards (ASICs) and maritime security identification cards (MSICs). A significant part of this role is the assessment of an individual’s criminal history information to determine whether a person has an adverse criminal record. A person with an adverse criminal record is ineligible to be issued with an ASIC or MSIC. The Regulations provide AusCheck with an exclusion from the spent convictions scheme for the purpose of assessing whether an individual has an adverse criminal record.

The Regulations list the Secretary and AusCheck staff members under the AusCheck Act 2007 as prescribed persons and bodies. The purpose of the AusCheck exclusion is for the purposes of conducting background checks under the AusCheck scheme.

The offences that are excluded from the spent convictions scheme are either expressly defined as aviation-security-relevant offences or maritime-security-relevant offences by the Aviation Transport Security Regulations 2005 or the Maritime Transport and Offshore Facilities Security Regulations 2003 respectively, or fall within the description of particular types of offences that are security-relevant offences. Convictions for aviation-security-relevant offences or maritime-security-relevant offences may constitute an adverse criminal record making the individual ineligible to be issued with an ASIC or MSIC.

There are two technical amendments to the Principal Regulations.

Item 14 of Schedule 4 is an exclusion from the spent convictions scheme for ASIC issuing bodies. Item 14 currently refers to the Air Navigation Regulations 1947. The relevant provisions of the Air Navigation Regulations 1947 have been superseded by the Aviation Transport Security Regulations 2005 (ATS Regulations) and the Amending Regulations replace the references to the Air Navigation Regulations 1947 with the appropriate corresponding references in the ATS Regulations.

The Regulations also make a minor amendment to the ‘prescribed offences’ listed under item 20 of Schedule 4 to the Principal Regulations. Item 20 currently excludes all of Part 2 of the Crimes (Aviation) Act 1991, which relates to offences under that Act from the spent convictions scheme for MSIC issuing bodies.

This amendment will except offences against section 15 of the Crimes (Aviation) Act 1991 from being excluded from the spent convictions scheme. This will make the treatment of offences against the Crimes (Aviation) Act 1991 in item 20 for MSIC purposes consistent with their treatment under item 14 for ASIC purposes. Section 15 of the Crimes (Aviation) Act 1991 provides that where an act or omission takes place on board an aircraft, and that act or omission would have been an offence against a Commonwealth law or the Crimes Act 1900 (ACT) as applied in the Jervis Bay Territory, then the person is guilty of an offence. However, since section 15 does not relate directly to air safety offences, it is excepted from the exclusion.

 

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised. However, paragraph 85ZZ(1)(b) of the Act provides that the Privacy Commissioner has the statutory function of receiving and examining any written requests for complete or partial exclusion from the spent convictions scheme in order to advise the Minister whether an exclusion should be granted. The Privacy Commissioner has been consulted and has advised that the exclusion from the spent convictions scheme under Part VIIC of the Crimes Act 1914 should be granted to AusCheck. The Regulations are in line with the Privacy Commissioner’s advice.

Details of the Regulations are set out in the Attachment.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

ATTACHMENT

 

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Crimes Amendment Regulations 2007 (No. 2)

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day after they are registered.

 

Regulation 3 – Amendment of Crimes Regulations 1990

 

This regulation provides that the Crimes Regulations 1990 (the Principal Regulations) are amended as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Item [1] – Schedule 4, item 14

 

This item amends item 14 of Schedule 4 to the Principal Regulations by substituting reference to the Air Navigation Regulations 1947 with the Aviation Transport Security Regulations 2005 (ATS Regulations). The meaning of an ‘issuing body’ is now found within regulation 6.01 of the ATS Regulations and the prescribed purpose of assessing whether to issue an ASIC is now found within regulation 1.03 in accordance with Part 6 of those regulations.

 

Item [2] – Schedule 4, item 20, column 4, paragraph (3)

 

This item amends item 20 of Schedule 4 to the Principal Regulations so that the exclusion from the spent convictions scheme in relation to offences against Part 2 of the Crimes (Aviation) Act 1991 does not apply to offences against section 15 of that Act.

 

Item [3] – Schedule 4, after item 20

This item amends Schedule 4 to the Principal Regulations by inserting reference to the Secretary of the Attorney-General's Department and AusCheck staff within the meaning of subsection 4(1) of the AusCheck Act 2007. New item 21 supports the role of AusCheck in coordinating background checks for the purposes of the AusCheck scheme. The AusCheck scheme provides for the conduct of background checking of individuals who have applied for aviation security identification cards or maritime security identification cards. New item 21 excludes AusCheck from the spent convictions scheme for the purpose of assessing whether an individual has an adverse criminal record.