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CRIMINAL CODE AMENDMENT REGULATIONS 2006 (NO. 1) (SLI NO 178 OF 2006)
Select Legislative Instrument 2006 No. 178
Issued by the authority of the Attorney-General
Criminal Code Act 1995
Criminal Code Amendment Regulations 2006 (No. 1)
Section 5 of the Criminal Code Act 1995 (the Act) provides that the
Governor-General may make regulations 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 Schedule to the Act sets out the Criminal Code (the Code).
The Code codifies general principles of criminal responsibility and standardises processes for dealing with offences committed under Commonwealth law. Part 5.3 of the Code (Divisions 100 -- 106) include counter-terrorism legislation made after the terrorist attacks in the United States on 11 September 2001.
The Code establishes a comprehensive regime in Division 104 governing the making of a control order for up to 12 months in respect of persons who pose a terrorist risk to the community. The Code also establishes a comprehensive regime in Division 105 for the preventative detention of persons for up to 48 hours where there are reasonable grounds to suspect a person will engage in a terrorist act, possesses a thing connected with the preparation for or engagement in a terrorist act or has done an act in preparation for, or planning a terrorist act.
Corresponding preventative detention regimes have been introduced in all of the States and Territories, with the exception of Western Australia. Most recently, the Terrorism (Preventative Detention) Act 2005 (Tas) was given Royal Assent on 13 January 2006, but will not commence until a date to be fixed by Proclamation. In addition, Part 2B of the Terrorism (Emergency Powers) Act 2003 (NT) was given Royal Assent on 18 May 2006, but will not commence until a date to be fixed by the Administrator by notice in the Gazette.
In order to ensure that the Commonwealth, States and Territories' preventative detention regimes recognise and operate consistently with one another, section 104.2 in Division 104 and sections 105.6, 105.7, 105.11, 105.42 and 105.52 in Division 105 of the Code refer to a "corresponding State preventative detention law".
Subsection 100.1(1) of the Code defines a "corresponding State preventative detention law" to mean "a law of a State or Territory that is, or particular provisions of a law of a State or Territory that are, declared by the regulations to correspond to Division 105 of this Act."
The purpose of the Regulations is to amend the Criminal Code Regulations 2002 (the Principal Regulations) to declare the laws relating to preventative detention in each of the States and Territories, other than Western Australia, as a "corresponding State preventative detention law" under subsection 100.1(1) of the Code.
Item  of Schedule 1 to the Regulations declares entire laws, as well as specific provisions forming part of a law of a State or Territory to be a "corresponding State preventative detention law". Item  inserts a list of these laws and specific provisions into the Principal Regulations. Recognition of the laws in this way does not preclude the Australian Government from seeking improvements and greater consistency between State and Territory laws.
Details of the Regulations are set out in the Attachment.
No consultation was undertaken before the Regulations were prepared because the Regulations are a formal requirement under legislation that has been previously agreed to by State and Territory Governments.
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.
Details of the Criminal Code Amendment Regulations 2006 (No. 1)
Regulation 1 -- Name of Regulations
This regulation provides that the title of the Regulations is the Criminal Code Amendment Regulations 2006 (No. 1).
Regulation 2 -- Commencement
This regulation provides that the Regulations commence on the day after they are registered. Because the Regulations would be a legislative instrument, the Act requires that they must be registered on the Federal Register of Legislative Instruments to be effective.
Regulation 3 -- Amendment of Criminal Code Regulations 2002
This regulation notes that Schedule 1 amends the Criminal Code Regulations 2002.
Schedule 1 -- Amendments
This item provides that either an entire law of a State or Territory or a specific provision in a law of a State or Territory is a "corresponding State preventative detention law" as defined in subsection 100.1(1) of the Code.
This item inserts a new Part 1 of Schedule 1, which lists each of the laws (referred to as "declared laws" in the Regulations) of the States and Territories that are declared to be a "corresponding State preventative detention law". This item also inserts a new Part 2 of Schedule 1, which lists each of the specific provisions (referred to as "declared provisions" in the Regulations) of the States and Territories that are declared to be "corresponding State preventative detention law".
The effect of this item is to provide that each section in Divisions 104 and 105 of the Criminal Code which refers to a "corresponding State preventative detention law" should be read as referring to the laws listed in Schedule 1.