Commonwealth Numbered Regulations - Explanatory Statements

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Issued by the authority of the Attorney-General

Crimes Act 1914

Crimes Regulations (Amendment)

Section 91 of the Crimes Act 1914 (the Crimes Act) provides that the Governor-General may make regulations for the purposes of the Act.

The purpose of the Crimes Regulations (Amendment) is to exempt the Australian Securities Commission from the provisions of the Spent Convictions Scheme for certain purposes.

The Spent Convictions Scheme is contained in Division 3 of Part VIIC of the Crimes Act. This scheme provides a mechanism whereby certain convictions that are over 10 years old can be 'spent'. If a person was convicted of an offence 10 years ago or more, was sentenced to less that 30 months imprisonment and has not reoffended since that conviction then the conviction is spent and the person is legally able to claim, on oath or otherwise, that they were never convicted of the offence. In most circumstances, another person who knows of the offence is not allowed to disclose it without the consent of the person convicted, or to take it into account in any decision making process.

There are some exceptions to the scheme which affect this right of non-disclosure. All these exceptions are listed in section 85ZZH of the Crimes Act 1914.

Under paragraph 85ZZH(k) of the Crimes Act exclusions can be given to:

a prescribed person or body, for a prescribed purpose, in relation to a conviction for a prescribed offence.

These exclusions are listed in schedule 4 of the Crimes Regulations.

Regulation 2 of the amending regulations exempts the ASC from the Spent Convictions Scheme in regard to all offences for the following purposes:

* considering whether to prosecute and making submissions as to sentence; and

* assessing the suitability of persons to be employed by the ASC, or to be a member of the ASC, or to be engaged as a consultant to the ASC, or to be engaged to perform services for the ASC.

The ASC is a statutory body with the primary responsibility of enforcing the Corporations Law. It has general investigative powers which arise where the ASC has reason to suspect that there has been a contravention of a national scheme law, or a contravention of a law of the Commonwealth or of a State or Territory. The latter contravention must concern the management or affairs of a body corporate or involve fraud, or dishonesty and relate to a body corporate, securities or futures contracts. The Attorney-General may direct that the ASC investigate matters similar to those mentioned above.

The scope of the power to investigate includes the power to serve a notice requiring attendance at an examination and to require persons to provide information relevant to a matter being investigated. The person is required to answer questions under oath.

The ASC also has a regulatory role. This relates to the registration of auditors and liquidators, and the licensing of dealers, advisers and brokers involved in futures, securities and investment.

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