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CRIMES AMENDMENT REGULATIONS 2009 (NO. 2) (SLI NO 56 OF 2009)
EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 56
Issued by the authority of the Minister for Home Affairs
Crimes Act 1914 (Cth)
Crimes Amendment Regulations 2009 (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.
Part 1AC of the Act deals with assumed identities, (false identities used to facilitate the gathering of intelligence or to investigate crimes). Under Part 1AC, an authorised person may authorise an officer or other person to acquire evidence of an assumed identity from another agency, or to use an assumed identity.
The purpose of the Regulations is to update the arrangements relating to assumed identities in respect of two agencies – the Australian Customs Service and the Victorian Office of Police Integrity
Customs
Customs is listed as a Commonwealth participating agency under section 15XA (1) of the Act. This allows the head of Customs to authorise officers and other persons to acquire evidence of, and use, assumed identities. In addition, existing paragraph 4BA(b) of the Crimes Regulations 1990 (the Principal Regulations) prescribes any Regional Director for a State or Territory as the class of persons within Customs who may authorise the acquisition and use of assumed identities.
Following an internal restructure, the acquisition and use of assumed identities are no longer authorised by Regional Directors for States or Territories. Instead, this function is to be performed by the National Manager Enforcement Operations and the National Manager Investigations. These positions are held by Senior Executive Service employees within the meaning of section 34 of the Public Service Act 1999.
The Regulations amend the Principal Regulations to reflect this organisational restructure. The Regulations prescribe as an authorising person any Senior Executive Service employee of Customs. This will enable both the National Manager Enforcement Operations and the National Manager Investigations to carry out the functions of authorising the acquisition and use of assumed identities. It also allows for any possible future internal restructuring within Customs without the need for further amendments to the Principal Regulations.
Office of Police Integrity
The Victorian Office of Police Integrity (OPI) was established under section 102A of the Police Regulation Act 1958 (Vic) (the Police Regulation Act) and continued under section 5 of the Police Integrity Act 2008 (Vic) (the Police Integrity Act). In 2008, the Police Integrity Act replaced the Police Regulation Act as the legislation governing OPI. OPI conducts investigations into police corruption and serious misconduct within the Victorian police service. OPI also works to ensure that member of the Victorian Police are acting in a manner consistent with the Charter of Human Rights and Responsibilities Act 2006 (Vic).
OPI is currently prescribed as a participating State agency under regulation 4BC of the Principal Regulations. As a result, the Director of OPI is able, as the head of the agency, to authorise the acquisition and use of an assumed identity.
However, the Director is from time to time away from the office and unable to carry out this function. The Regulations would enable the Director to delegate this function to appropriate senior officers in the OPI. The Regulations would amend regulation 4BB of the Principal Regulations to prescribe as the class of persons within OPI who may authorise the acquisition and use of assumed identities, any person employed under paragraph 17(1)(a) of the Police Integrity Act as an Assistant Director or Deputy Director of OPI. This would allow the Assistant Director or Deputy Director, as well as the Director, to perform these functions.
Allowing for the delegation of such functions by the head of the agency to appropriate senior officers of OPI is consistent with practice in other like State and Territory bodies. The classes of persons authorised under Regulation 4BB in relation to like bodies such as the New South Wales Police Integrity Commission and Independent Commission Against Corruption, the Queensland Crime and Misconduct Commission and the Western Australian Anti-Corruption Commission include officers at the ‘Assistant Commissioner’ or ‘Senior Manager’ level.
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 commenced on the day after they were registered on the Federal Register of Legislative instruments.
Customs and OPI were consulted on the Regulations.
ATTACHMENT
Details of the Crimes Amendment Regulations 2009 (No. 2)
Regulations 4BA, 4BB and 4BC of the Crimes Regulations 1990 (the Principal Regulations) prescribe certain matters to facilitate the operation of Part 1AC of the Act.
Regulation 4BA prescribes classes of persons for Commonwealth participating agencies for the purposes of the definition of ‘authorising person’ in section 15XA of the Act. Regulation 4BB prescribes classes of persons for State or Territory participating agencies.
Regulation 4BC prescribes certain State or Territory bodies for the purposes of the definition of ‘State or Territory participating agency’ in section 15XA of the Act.
Regulation 1 – Name of Regulation
This regulation provides that the title of the Regulations is the Crimes Amendment Regulations 2009 (No. 2).
Regulation 2 – Commencement
This Regulation provides for the Regulations to commence on the day after they are registered.
Regulation 3 – Amendment of the Crimes Regulations 1990
This regulation provides that the Principal Regulations are amended as set out in Schedule 1.
Schedule 1 – Amendments
Item [1]
Item [1] amends existing paragraph (b) of regulation 4BA of the Principal Regulations by removing ‘any Regional Director for a State or Territory within the meaning of section 8 of the Customs Act 1901’ and substituting ‘any member of staff of the Australian Customs Service who is a Senior Executive Service employee’. This will allow any SES employee of Customs to carry out the functions of an authorising person under Part 1AC of the Crimes Act relating to assumed identities, if authorised in writing by the head of that agency to do so.
Item [2]
Item [2] amends existing paragraph (m) of regulation 4BB of the Principal Regulations by omitting ‘Act.’ and replacing it with ‘Act;’. This will allow for the insertion of a new paragraph (n) by Item [3].
Item [3]
Item [3] amends regulation 4BB by inserting a new paragraph (n), ‘if the participating agency is the Office of Police Integrity established under the Police Regulation Act 1958 (Vic) and continued under section 5 of the Police Integrity Act 2008 (Vic) – any person employed under paragraph 17(1)(a) of the Police Integrity Act 2008 (Vic) as an Assistant Director or Deputy Director’. This will allow the Assistant Director or Deputy Director of OPI to carry out the functions of an authorising person under Part 1AC of the Crimes Act relating to assumed identities, if authorised in writing by the head of that agency to do so.
Item [4]
Item [4] inserts a new note after regulation 4BC, ‘The Office of Police Integrity established under the Police Regulation Act 1958 (Vic) is continued under section 5 of the Police Integrity Act 2008 (Vic)’. Currently, regulation 4BC refers to the ‘Office of Police Integrity established under the Police Regulation Act 1958 (Vic)’. The insertion of the note will clarify that the new Police Integrity Act 2008 (Vic) has replaced the old Police Regulation Act 1958 (Vic) as the Act which governs OPI.