EXPLANATORY STATEMENT

Select Legislative Instrument 2010 No. 153

Issued by the authority of the Minister for Home Affairs

Subject - Crimes  Act 1914

Crimes Amendment Regulations 2010 (No. 3)

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 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 Crimes Regulations 1990 (the Principal Regulations) specifies the prescribed persons for the purposes of the Act.

The Regulations amend the Principal Regulations to address the establishment and implementation of exclusions for the National Health Security check scheme (the NHS scheme). The offences sought to be excluded are all extremely serious offences with a high degree of inherent national security risk. A conviction for such a serious offence at any time in a person’s history should be taken into account in accordance with the terms of Security Sensitive Biological Agent Standards as part of any decision on whether a person is granted access to security sensitive biological agents.

The Regulations also correct inconsistencies and outdated references in the provisions allowing for consideration of otherwise spent convictions in the Maritime Security Identification Card (MSIC) and Aviation Security Identification Card (ASIC) schemes

The Regulations also allow for the admissibility of an interview conducted by a foreign law enforcement officer in certain Commonwealth child-sex related proceedings. This will allow a child witness in a foreign country to give video evidence to local police authorities without having to appear in person in Australia to give evidence to an Australian police officer.

The office of Best Practice Regulation has advised that no regulatory impact statement is needed.

The Department of Health and Ageing, the Department of Infrastructure, Transport, Regional Development and Local Government, the Department of Prime Minister and Cabinet and the Office of the Privacy Commissioner have been consulted on the amendments to Schedule 4 of the Crimes Regulations 1990.

The Department of Health and Ageing has consulted with persons affected by the introduction of the NHS scheme through its website and via the security sensitive biological agent entities. Changes to the NHS, ASIC and MSIC exclusions closely mirror existing exclusions and are directed to the internal consistency of the administration of these schemes.

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

The Act specifies no conditions that need to be satisfied before the power to make regulations may be satisfied.

The Regulations have variable commencement dates. Regulations 1 to 3 and Schedule 1, which relate to Commonwealth child-sex related proceedings commence on the day after the Regulations are registered on the Federal Register of Legislative Instruments. Schedule 2, which relates to exclusions from the spent conviction scheme, commence on 14 July 2010. The Commonwealth child-sex provisions address an ongoing issue that would benefit from being rectified as soon as possible. The spent convictions provisions are timed to start with the commencement of the NHS scheme on 14 July 2010.

Details of the Amendment Regulations are set out below.

Regulation 1 – Name of Regulations

This regulation provides for the title of the Regulations to be the Crimes Amendment Regulations 2010 (No. 3).

Regulation 2 – Commencement

This regulation provides for regulations 1 to 3 and Schedule 1 to the Regulations to commence the day after they are registered and Schedule 2 to the Regulations to commence on 14 July 2010, to coincide with the commencement of the AusCheck Amendment Regulations 2010 (No. 1) and the Security Sensitive Biological Agent Standards.

Regulation 3 – Amendment of Crimes Regulations 1990

This regulation provides for Schedules 1 and 2 to the Regulations to amend the Crimes Regulations 1990 (the Principal Regulations).

Schedule 1 – Amendments commencing on the day after the Regulations are registered on the Federal Register of Legislative Instruments

Item [1] – After regulation 4E

This item inserts a new regulation 4F into the Principal Regulations. Regulation 4F would specify a ‘foreign law enforcement officer’ as a person of a kind who can conduct an interview that is sought to be admitted under section 15YM of the Crimes Act 1914 (the Crimes Act).  This ensures that where an interview was conducted by a foreign law enforcement officer, it is able to be admitted as evidence in chief where the court gives leave.

Section 15YM of the Act governs the admission of an interview of a child witness as evidence in chief in certain Commonwealth child-sex related proceedings.  This section allows a video recording of an interview of a child witness to be admitted as evidence in chief in a proceeding if:

(a)    a constable, or a person of a kind specified in the regulations, conducted the interview; and

(b)   the court gives leave.

‘Constable’ is defined in section 3 of the Crimes Act as a member or special member of the Australian Federal Police or a member of the police force or police service of a state or territory.  An interview conducted by anyone falling outside the definition of ‘constable’ would not be able to be admitted as evidence in chief under this provision, unless they are a person of a kind specified in the regulations.  However, the regulations do not currently specify any categories of person.  As a consequence, an interview conducted by a foreign law enforcement officer is not currently able to be admitted. The amendments would specify a ‘foreign law enforcement officer’ as a person of a kind who can conduct the interview that is sought to be admitted under section 15YM.  This ensures that where an interview was conducted by a foreign law enforcement officer, it is able to be admitted as evidence in chief where the court gives leave.

An example of how this may occur is in an instance of a person charged in Australia with offences related to child-sex tourism. In these circumstances a child witness in a foreign country may give video evidence to local law enforcement officer without having to appear in person in Australia to give evidence to an Australian police officer.

Schedule 2– Amendments commencing 14 July 2010

Item [1] – Schedule 4 item 20, column 4, clause (2)

The existing exclusion in item 20 allows an issuing body under the Maritime Transport and Offshore Facilities Security Regulations 2003 to take account of specified convictions if otherwise spent. This supports the issuing body role of deciding whether to issue an MSIC for access to a maritime secure zone.

The offence of sedition is among the excluded offences as it is a serious offence that needs to be taken into account regardless of when committed. However, sections 24C and 24D of the Crimes Act, which previously contained the Commonwealth sedition offences, have now been repealed, and so the references to those provisions in the exclusion would now be repealed.

The offence of sedition is now located in Chapter 5 of the Criminal Code, with other serious offences, including terrorism, already covered by the existing exclusion.

 

 

Item [2] – Schedule 4, item 20, column 4, clauses (4) and (5)

The offences of possession, importation or exportation of border controlled drugs or plants are among the offences excluded from the operation of the spent convictions when an issuing body is deciding whether to issue an ASIC. However, sections 233AC and 233B of the Customs Act 1901 have been repealed and equivalent offences have been inserted in Division 307 of the Criminal Code. This item repeals the references to sections 233AC and 233B and replace them with a reference to Division 307 of the Criminal Code.

Item [3] – Schedule 4, item 21, column 4, paragraph (2)(b)

This item is related to existing item 21 of Schedule 4 but concerns background checking decisions by AusCheck under the MSIC scheme. As detailed in item 1 of Schedule 2, this item is related to the shift of sedition offences from the Crimes Act to the Criminal Code. It ensures that repealed offences are removed from the exclusion from the spent conviction regime.

Item [4] – Schedule 4, item 21, column 4, paragraphs (2)(d) and (e)

This item repeals previous references in item 21 of Schedule 4 to sections 233AC and 233B of the Customs Act 1901 and replaces them with a reference to Division 307 of the Criminal Code. This is consistent with the amendment made in item 2 above but concerns the MSIC scheme. It ensures that the offences excluded from the spent conviction regime reflect the current organisation of Commonwealth criminal law.

Item [5] – Schedule 4, item 21, column 4, after clause (2)

This item inserts a new clause (3) into column 4 of item 21 in order to allow the Secretary of the Attorney‑General’s Department to take account of certain convictions of an individual undergoing or having undergone an NHS check for the purpose of assessing an application for an NHS check under the Security Sensitive Biological Agent Standards. These convictions are for offences against:

·        section 24AA, 24AB, 25, 27 or 29 of the Crimes Act, addressing treachery, sabotage, the inciting of mutiny, unlawful military drilling and the destruction of Commonwealth property;

·        Part 2 of the Crimes (Aviation) Act 1991 (except section 15), covering a range of offences concerning aircraft, airports, air navigation facilities and aerodromes, as well as the safety of people within or onboard;

·        Part 5.1 or 5.3 of the Criminal Code, including treason, sedition and terrorism; or

·        section 9, 10, 11 or 14 of the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995, concerning the export, import or supply of goods for a Weapons of Mass Destruction program.

These offences are critical to the evaluation of risk that they need to be taken into consideration, regardless of when the offences were committed. For example, a person who has engaged in terrorism or in dealings with weapons of mass destruction may pose a continuing security risk, even if the convictions were many years ago. The insertion of this exclusion would mirror some of the existing exclusions in clauses (1) and (2) of item 21 for the ASIC and MSIC schemes, used to assess whether an individual has an adverse criminal record as part of the appropriate background checking scheme.

The NHS scheme provides for the background checking of persons who must be authorised by an entity for unsupervised access to security sensitive biological agents of the highest concern (Tier 1 SSBAs). The substantial element of the NHS scheme will be contained in the Security Sensitive Biological Agent Standards and further detail is available on the Scheme’s website: www.health.gov.au/ssba.

Item [6] – Schedule 4, after item 21

This item inserts new items 22, 23 and 24 into Schedule 4 to the Principal Regulations.

Item 22 provides for the administration of discretionary decisions by the Secretary of the Department administering the Aviation Transport Security Act 2004 as part of the ASIC scheme. The insertion of item 22 allows the Secretary of that Department (currently the Department of Infrastructure, Transport, Regional Development and Local Government, DITRDLG) to take into account convictions for:

·        offences against Part 2 of the Crimes (Aviation) Act 1991 (except section 15); and

·        offences against Part 5.3 of the Criminal Code;

in making a discretionary decision to approve an issuing body to issue an individual with an ASIC following an adverse finding by AusCheck, based on all relevant information available. All relevant information includes convictions, otherwise spent, for high risk offences including aircraft hijacking and terrorism. The offences in item 22 align with those offences in clause (1) of item 21 and ensure that the offences considered by AusCheck in making its original decision can be considered by the Secretary of DITRDLG.

Item 23 provides for the administration of discretionary decisions by the Secretary of the Department concerning the issue of an MSIC. The insertion of item 23 allows the Secretary of that Department (currently DITRDLG) to consider convictions for offences against:

·        Part 4 of the Australian Passports Act 2005, concerning offences relating to Australian travel documents;

·        section 24AA, 24AB, 25, 27 or 29 of the Crimes Act 1914, addressing treachery, sabotage, the inciting of mutiny, unlawful military drilling and the destruction of Commonwealth property;

·        Part 2 of the Crimes (Aviation) Act 1991 (except section 15), covering a range of offences concerning aircraft, airports, air navigation facilities and aerodromes, as well as the safety of people within or onboard;

·        Division 73, Chapter 5, Division 145, Division 307 or Division 400 of the Criminal Code, regarding people smuggling, the security of the Commonwealth, the use and production of forged documents and money laundering;

·        section 233, 233A, 233BAA or 233BAB of the Customs Act 1901, concerning the unlawful or contravening importation of goods onboard a ship;

·        Division 10 of Part IV of the Navigation Act 1912, regarding the safety of ships and shipping, including the carriage of dangerous goods and harmful substances; or

·        section 9, 10, 11 of 14 of the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995, concerning the export, import or supply of goods for a Weapons of Mass Destruction program.

This ensures that the Secretary of DITRDLG is able to make discretionary decisions as to whether an individual should be issued with an MSIC, despite an adverse finding by AusCheck, based on all the relevant information. All relevant information includes convictions, otherwise spent, for high risk offences including aircraft hijacking, terrorism, sabotage and the import of goods for a Weapons of Mass Destruction program. These offences are considered by AusCheck in making its original decision through the existing exclusion in clause (2) of item 21 and through the insertion of item 22, would be able to be considered by the Secretary of DITRDLG in making a discretionary decision as to whether to issue an individual with a MSIC.

Item 24 provides an exclusion for the entities of the NHS check scheme, entities to whom Division 5 of Part 3 of the National Health Security Act 2007 applies. For the purposes of assessing whether to authorise a person under clause 3.3 of the Security Sensitive Biological Agent Standards, entities are able to take into consideration convictions involving offences against:

·        section 24AA, 24AB, 25, 27 or 29 of the Crimes Act 1914, including, sabotage, the inciting of mutiny, unlawful military drilling and the destruction of Commonwealth property;

·        Part 2 of the Crimes (Aviation) Act 1991 (except section 15), including a range of offences concerning the security of aircraft, airports, air navigation facilities and aerodromes, as well as the safety of people within or onboard;

·        Part 5.1 or 5.3 of the Criminal Code, including treason, sedition and terrorism; or

·        section 9, 10, 11 or 14 of the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995, including the export, import or supply of goods for a Weapons of Mass Destruction program.

These offences correspond with those being inserted in clause (3) of item 21, considered as part of the original criminal history assessment by AusCheck. Entities are able to use the details of the offences to determine whether an individual would be appropriate to work in a particular secure environment, with unsupervised access to the security sensitive biological agents.