EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 127

 

Issued by the authority of the Attorney General

 

Crimes Regulations 1990

 

Crimes Amendment Regulations 2006 (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 that by the Act are required or permitted to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

On 12 June 2006, amendments made to the Defence Force Discipline Act 1982 (DFDA) by the Defence Legislation Amendment Act 2005 (No. 2) (DLAA) came into effect.

 

Misconduct by Australian Defence Force (ADF) personnel is regulated by the DFDA.  The DLAA repeals section 102 of the DFDA which provided for the appointment of a 'convening authority'.  The DLAA inserts section 188G into the DFDA to replace a 'convening authority' with the Director of Military Prosecutions (DMP).

 

The 'convening authority' in item 3, Schedule 4 of the Crimes Regulations 1990 (the principal Regulations) is exempt from the Commonwealth spent convictions scheme.  That is, it gives a convening authority access to a person's criminal history despite the spent convictions scheme.  The item will become ineffective as section 102 of the DFDA has been repealed.

 

The amending Regulations replace the reference to a 'convening authority' with the reference to the DMP in item 3, Schedule 4.  The DMP is now able to access the past convictions of ADF personnel when considering whether to prosecute, and when making submissions and decisions on sentencing.

 

In the same item, the amending Regulations also replace a reference to a prosecutor in rule 42 of the Defence Force Discipline Rule 1985 with a reference to rule 50.  The reference to rule 50 is more accurate as rule 42 merely refers to a prosecutor's opening address, whereas rule 50 refers to the power of a prosecutor generally.  The amendment clarifies any ambiguity that surrounded the interpretation of the item.

 

The regulation commence on the day after registration.

 

Consultation was unnecessary for this legislative instrument as this instrument is of a minor or machinery nature and does not substantially alter existing arrangements.  It has no direct, or indirect effect on business.

                                                                                   

Authority: Section 91

of the Crimes Act 1914