EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 3

 

Issued by the authority of the Minister for Home Affairs

 

Crimes Act 1914

 

Crimes Amendment Regulations 2009 (No. 1)

 

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.

 

Following the 2003 Senate Foreign Affairs, Defence and Trade Committee Inquiry into the Effectiveness of Australia’s Military Justice System and its subsequent report in June 2005, a number of reforms to the military justice system were implemented and included in the Defence Legislation Amendment Act 2006 (DLAA06).

 

The Regulations make a consequential amendment to the Crimes Regulations 1990 (the Principal Regulations) which are required to reflect amendments made by the DLAA06.

 

Part VIIC of the Act deals with pardons, quashed convictions and spent convictions

Broadly, a conviction is spent if 10 years have elapsed from the date of the conviction and the individual has not re-offended during that 10 year period. In particular, section 85ZV of the Act provides that, subject to Division 6 of Part VIIC, a person is not required to disclose the fact of a spent conviction to any person. Division 6 provides for exceptions to this general provision and paragraph 85ZZH(k) of the Act provides for the disclosure of information about convictions to prescribed persons or bodies. Schedule 4 to the Principal Regulations specifies the prescribed persons for the purposes of Division 6.

 

Following the amendments made by the DLAA06, the Defence Force Discipline Rules 1985 no longer exist. In their place, the Summary Authority Rules, made pursuant to section 149A of the Defence Force Discipline Act 1982 (DFDA), contain those (and additional) matters that were in the Defence Force Discipline Rules 1985 in relation to the practice and procedure for the conduct of summary trials.

 

Item 3 of Schedule 4 of the Principal Regulations specifies the Director of Military Prosecutions or a prosecutor ‘referred to in rule 50 of the Defence Force Discipline Rules 1985’, who are considering whether to prosecute or make submissions and decisions as to sentence (in respect of all offences in the DFDA), as ‘prescribed persons’. As the reference to the Defence Force Discipline Rules 1985 is no longer accurate, the Regulations replace this reference with a reference to ‘rule 37 of the Summary Authority Rules’.

 

The combined effect of the provisions of the Act, the Principal Regulations as amended and the substantive content of rule 37, have not changed.

 

2

 

 

The Principal Regulations are administered by the Attorney-General’s Department; amendments to these Regulations required the approval of the Minister for Home Affairs. The Minister agreed to the amendment and also agreed that the Minister for Defence Science and Personnel recommend them on his behalf.

 

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

 

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

 

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

 

There has been no consultation in the making of this instrument as it relates to the management and service of members of the ADF.

 

 

 

0814471A