Crimes (Sentencing) Regulation 2006

The regulation rests on three main concepts, each tied to a specific section of the principal Act.

Victim impact statement eligibility (section 1A). The Act, section 48, says a victim may make a statement for an offence prescribed by regulation or of a kind prescribed. Section 1A prescribes only two offences. The first is negligent driving that occasions grievous bodily harm under the Road Transport (Safety and Traffic Management) Act 1999. This is a summary offence (maximum 50 penalty units or imprisonment for 1 year for a first offence, and higher for subsequent). The second is a category 2 work health and safety duty failure under the Work Health and Safety Act 2011, section 32, but only where the risk exposure results in death, serious injury or illness. Category 2 is a strict liability offence (maximum 1500 penalty units for an individual, 7500 for a body corporate) but does not require proof of reckless conduct; it applies where a person fails to comply with a duty and thereby exposes an individual to a risk of death, serious injury or illness. The regulation adds a further element: the outcome must materialise. This is a higher threshold than the offence itself, which is complete upon exposure to risk.

Rehabilitation program (section 2). The Act, section 93, defines “rehabilitation program” as a program prescribed by regulation. Section 2 sets out five categories. The first two cover sexual behaviour treatment: one for adults, one for children. Both specify “unlawful or inappropriate” behaviour. “Inappropriate” is not defined, which gives the program provider or court a degree of discretion but also uncertainty. The third category is broad: programs that impart self‑management and social skills to “enable offenders to deal with difficult situations in ways that do not involve the criminal behaviour.” This could encompass a wide range of cognitive‑behavioural, anger management, or life‑skills courses. The fourth category is programs for family violence offenders. The fifth covers alcohol or drug rehabilitation programs, but with a gatekeeping mechanism: the program must be provided by an entity either under a Territory agreement under the Crimes (Sentence Administration) Act 2005, section 101, or with the consent of the director‑general, who must first consult the health‑portfolio director‑general. This creates a two‑step approval process that can limit the supply of such programs.

Criminal justice entity (section 3). The Act, section 136(4), defines “criminal justice entity” to include any entity prescribed by regulation. Section 3 lists nine entities as at September 2024. These are a mix of non‑government organisations (Aboriginal Legal Service, rape crisis centre, domestic violence crisis service, EveryMan Australia, Volunteering ACT), government officials (director‑general for disability, Domestic, Family and Sexual Violence Coordinator‑General), and bodies (Judicial Commission of NSW, ACAT). The designation triggers obligations under the Act to share information (likely a court or correctional agency may disclose information to these entities for sentencing or offender management purposes). The list is entity‑specific, not generic by category, so any new body would need a regulation amendment.

Together, these concepts give operational content to the Act’s framework. They determine which victims can speak, what programs count for sentencing or parole purposes, and which agencies can receive sensitive information.

The regulation directly affects several distinct groups, though its reach is confined to the ACT criminal justice system.

Victims of crime. Only victims of the two specified offences (negligent driving causing GBH and category 2 WHS failure leading to death/serious injury/illness) can exercise the right to make a victim impact statement under the regulation. This excludes victims of other driving offences (e.g., dangerous driving, culpable driving, drink driving without injury) and victims of other workplace safety offences (category 1 reckless conduct or category 2 without materialised harm). For those victims, the Act may still permit a statement under section 48(a) for an offence not prescribed, but the regulation does not extend that right.

Offenders. Offenders who are ordered to attend a rehabilitation program must ensure the program falls within the regulation’s definition. If the program is for alcohol or drug treatment, the provider must be approved by the Territory or consented to by the director‑general. Offenders may face limited choice if approved programs are scarce. The family violence program category means offenders convicted of such offences may be directed to specific programs, potentially restricting private treatment options.

Program providers. Entities that wish to deliver alcohol or drug rehabilitation programs must either enter into an agreement with the Territory under the Crimes (Sentence Administration) Act 2005, section 101, or obtain the director‑general’s consent, which requires prior consultation with the health‑portfolio director‑general. This creates a regulatory barrier to entry. Existing providers under agreement have a competitive advantage. Small private clinics or sole practitioners cannot easily become approved unless they meet the Territory’s terms.

Criminal justice entities. The entities listed in section 3 can receive information from courts or corrections under the Act. They include advocacy and support services (Aboriginal Legal Service, rape crisis centre, domestic violence crisis service, EveryMan Australia, Volunteering ACT), government departments (disability director‑general, Domestic, Family and Sexual Violence Coordinator‑General), and the Judicial Commission of NSW. These entities may use the information for their statutory functions, but they also face obligations to handle sensitive data.

Government officials. The director‑general responsible for the administrative unit administering the Health Act 1993 must be consulted before consent is given to a drug or alcohol program provider. This adds an inter‑agency coordination step. The director‑general for disability is itself a criminal justice entity, meaning that agency can receive information about offenders with disabilities.

The court. The court relies on the regulation to know when a victim impact statement is admissible, what programs it can order, and which entities it can release information to. Without the regulation, the court would lack the statutory power to do these things, as the Act delegates the definitions to subordinate legislation.

The regulation imposes few direct duties; most flow from the Act. However, the regulation creates specific gatekeeping duties and rights.

Duty of director‑general to consult before consenting (section 2(2)). Before the director‑general may consent to an entity providing an alcohol or drug rehabilitation program under section 2(1)(e)(ii), the director‑general must consult with the director‑general of the administrative unit responsible for the Health Act 1993. This is a mandatory procedural step. Failure to consult could render a consent invalid, affecting the legal status of any program delivered under it. This duty applies only to alcohol/drug programs, not to the other four categories.

Right of victims to make a statement (section 1A). This section confers a right on victims of the two specified offences to make a victim impact statement under Part 4.3 of the Act. The right is not open‑ended; the statement must relate to the offence and comply with the Act’s procedural requirements (e.g., form, timing). The regulation does not itself create penalties for failing to inform victims of this right, but the Act may impose such obligations on prosecutors or the court.

Designation of criminal justice entities (section 3). Being listed as a criminal justice entity gives those bodies a right to receive information under the Act, section 136. The Act’s information‑sharing provisions are subject to confidentiality and use limitations, but the regulation is the key that unlocks the door. Entities not listed cannot demand information under this head. However, being a listed entity also carries duties: they must comply with the Act’s restrictions on use and disclosure of information.

Limits on program scope. The regulation defines what counts, but it does not create a duty on courts to order programs or on offenders to attend. That arises from judicial discretion and sentencing orders under the Act.

No private right of action. The regulation does not confer a right to sue for breach. Non‑compliance with the consultation duty might be challenged by judicial review, but the regulation itself does not create a statutory cause of action.

Effect on contractual freedom. For program providers, the regulation restricts their ability to offer alcohol/drug programs to offenders without government approval. This reduces the scope of private contracting and replaces market choice with bureaucratic gatekeeping.

The regulation itself contains no penalty provisions. However, it sits within a broader legislative framework where penalties apply for non‑compliance with court orders made under the Act.

Penalty unit values. At the republication date, the value of a penalty unit under the Legislation Act 2001, section 133, is $160 for an individual and $810 for a corporation. These values apply to any offence created by the Act that references penalty units. While the regulation does not create offences, the Act may impose penalties for, for example, failing to attend a rehabilitation program ordered as a condition of a sentence or failing to comply with information‑sharing obligations.

Indirect enforcement through the Act. If a court imposes a sentence that includes a rehabilitation program, the offender’s failure to attend or complete the program may be a breach of the sentencing order. That breach can lead to resentencing or separate proceedings for contempt or breach of a good behaviour order. The definition of “rehabilitation program” in the regulation is therefore crucial: only programs that fall within the regulation count. If a court orders an unapproved program, the order may be invalid or unenforceable, creating risks for the state.

Information sharing enforcement. If a criminal justice entity improperly uses or discloses information received under the Act, it may face penalties under the Act (not the regulation). The regulation only designates who may receive the information; the Act sets the rules.

Expiry provisions as de facto enforcement. The regulation has a history of provisions expiring on set dates. Section 3(2) used to provide that subparagraphs expired automatically. The current version has no active expiry, but future amendments could reintroduce them. This imposes a legislative discipline: the list must be renewed by regulation, otherwise entities fall off. The expiry of s 3(1)(j) and (2) on 31 August 2024 (as per the amendment history) shows that the removal of entities happens automatically without further parliamentary scrutiny, which could affect organisations that relied on their listed status.

No criminal sanctions for non‑compliance with the regulation. Breach of the regulation itself (e.g., an entity claiming to be a criminal justice entity when not listed) does not appear to be a separate offence. The legal effect is that the Act’s information‑sharing protections would not apply, potentially exposing both the entity and the disclosing body to liability for unlawful disclosure.

The regulation explicitly cross‑references several ACT and one NSW statute, and sits within a larger legislative ecosystem.

Crimes (Sentencing) Act 2005 (the Act). This is the parent Act. The regulation fills gaps left by the Act in relation to victim impact statements (s 48), rehabilitation programs (s 93), and criminal justice entities (s 136). Any changes to the Act’s definitions would automatically affect the regulation’s operation. For instance, if the Act amended s 48 to allow victim impact statements for all offences, section 1A would become redundant.

Road Transport (Safety and Traffic Management) Act 1999. Section 1A(a) picks up negligent driving under section 6 of that Act. The regulation does not incorporate the rest of that Act; it only uses the offence as a trigger for victim impact statement eligibility. Amendments to the Road Transport Act that renumber or repeal section 6 would affect the regulation’s operation.

Work Health and Safety Act 2011. Section 1A(b) refers to section 32 (category 2 duty failures). The regulation adds an outcome requirement: death, serious injury, or illness must eventuate. This is a stricter test than the offence itself, which is committed upon exposure to risk. The interaction means that a conviction under section 32 does not automatically allow a victim impact statement; the prosecution must also prove that harm materialised. This may create evidentiary complexities at sentencing.

Crimes (Sentence Administration) Act 2005. Section 2(1)(e)(i) refers to section 101 of that Act, which governs agreements between the Territory and entities providing alcohol or drug programs. The regulation does not replicate those agreement terms; they are set by the Sentence Administration Act and any contract. The regulation’s alternative path (consent of director‑general) provides a route outside the agreement framework but still requires health consultation.

Health Act 1993. The consultation duty in section 2(2) requires the director‑general to consult with the director‑general of the administrative unit responsible for the Health Act. This ensures that health policy considerations are weighed before approving a drug or alcohol program. The regulation does not specify the form or timing of consultation, leaving administrative discretion.

Associations Incorporation Act 1991. Several entities in section 3 are incorporated under this Act (Canberra Rape Crisis Centre Inc, Domestic Violence Crisis Service Inc, Volunteering ACT). Their legal status as incorporated associations affects their capacity to receive and handle information, but the regulation does not impose additional governance requirements.

Disability Services Act 1991. The director‑general responsible for administering that Act is a criminal justice entity. This means information about offenders with disabilities may flow to the disability agency, potentially affecting support services or legal guardianship arrangements.

Judicial Officers Act 1986 (NSW). The Judicial Commission of New South Wales is listed as a criminal justice entity under section 3(g). This is an interstate body, indicating that ACT law recognises information sharing across borders for certain purposes.

Other ACT laws. The regulation’s definition of rehabilitation program may interact with bail legislation, parole orders, and child protection laws. For example, a child offender ordered to attend a sexual behaviour program must use a program within the regulation. The absence of a private right of action means that an offender aggrieved by a program’s quality may have few remedies.

The regulation has been amended 15 times since its commencement on 2 June 2006. The key amendments are as follows.

2006. The regulation was originally made under the Sentencing Legislation Amendment Act 2006 (A2006‑23) and commenced on 2 June 2006. Shortly after, the Crimes (Sentencing) Amendment Regulation 2006 (No 1) (SL2006‑25) inserted section 3 (criminal justice entities) and a transitional schedule, with an expiry of 18 December 2007.

2008‑2009. Amendments by SL2008‑20 and SL2009‑48 revised the list of criminal justice entities.

2010. The Crimes (Sentencing) Amendment Regulation 2010 (No 1) (SL2010‑35) inserted section 1A, which initially prescribed offences under the Road Transport Act and the Work Health and Safety Act (then the Dangerous Substances Act 2004 as well, but later substituted). The Administrative (One ACT Public Service Miscellaneous Amendments) Act 2011 (A2011‑22) amended section 2 to reflect machinery of government changes.

2013‑2015. Amendments by SL2013‑16, SL2015‑3, and the Crimes Legislation Amendment Act 2015 (No 2) (A2015‑36) substituted section 1A to its current form, limiting victim impact statements to the two specific offences. The 2015 amendment removed the reference to the Dangerous Substances Act.

2016‑2017. The Family Violence Act 2016 (A2016‑42) amended section 2 to insert the category of programs for family violence offenders. This commenced on 1 May 2017, after a consequential amendment by the Family and Personal Violence Legislation Amendment Act 2017 (A2017‑10).

2021‑2022. SL2021‑21 and SL2022‑14 amended the list of criminal justice entities. The Domestic Violence Agencies Amendment Act 2022 (A2022‑11) added or substituted entities, effective 17 December 2022.

2024. The Crimes Legislation Amendment Act 2024 (A2024‑12) amended section 3 to update the list, and also inserted an expiry provision for subparagraph (k) and subsection (2), set to expire on 30 June 2024. That expiry occurred, as shown in republication R16 (1 July 2024). Then the Crimes (Sentencing) Amendment Regulation 2024 (No 1) (SL2024‑15) further amended section 3, inserting new subparagraph (j) and an expiry for it and subsection (2) on 31 August 2024. As at the current republication (R18, 1 September 2024), that expiry has occurred, and section 3 now has no active expiry provision. The amendment history also notes that a transitional schedule (sch 1) existed but expired on 18 December 2007.

The source text for this regulation does not refer to any cases. The regulation is a subordinate instrument of narrow scope, and it is unlikely to be the subject of standalone litigation. However, its definitions could be challenged incidentally in sentencing or judicial review proceedings.

Possible grounds for challenge. A victim might argue that the regulation improperly excludes them from making a victim impact statement, but the regulation is consistent with the Act’s delegation. An offender might argue that a program ordered by the court does not fall within the regulation, making the order invalid. A provider might seek judicial review of a director‑general’s refusal to consent to a drug/alcohol program, arguing failure to consult the health director‑general as required by section 2(2).

No recorded cases in the source. The regulation’s endnotes contain no mention of litigation histories, unlike some primary Acts that include a table of cases in the endnotes. This suggests that, as of the republishing date, no significant judicial decisions have turned solely on the regulation’s interpretation. Practitioners should check ACT case law databases for any recent decisions, particularly on the meaning of “rehabilitation program” in the context of sentencing disputes.

Potential for future litigation. The designation of criminal justice entities by name (rather than by class) could give rise to equal protection arguments if an organisation with similar functions is omitted. The absence of an expiry provision in the current version might also be tested: if the list becomes stale (e.g., an entity ceases to exist), questions of statutory interpretation arise about whether the entity remains a criminal justice entity.

Impact on sentencing. The regulation’s definitions are not themselves litigated, but they feed into sentencing decisions that are appealed. For instance, a sentence that includes a condition to attend a program that a later interpretation shows is not a “rehabilitation program” could be set aside for want of power. The regulation thus operates in the background of appellate litigation.

Several aspects of the regulation can catch practitioners and entities off guard.

Expiry of provisions without warning. The most recent republication (R18) reflects the expiry of section 3(1)(j) and subsection (2) on 31 August 2024. The expired subparagraph is not shown in the current text. Practitioners relying on an earlier version might assume an entity is still listed when it is not. The history shows that expiry provisions have been used repeatedly for the criminal justice entity list. Anyone using the regulation must check the republication date and the endnotes for any uncommenced expiry or future expiry dates.

Narrow victim impact statement eligibility. Section 1A covers only two specific offences. Many serious offences such as assault, sexual assault, or dangerous driving are not included. A victim of a serious assault cannot make a victim impact statement under this regulation, though the Act may allow it for other offences (s 48(a) - the regulation only sets the “prescribed” category). This creates an anomaly: a victim of negligent driving causing GBH can make a statement, but a victim of reckless grievous bodily harm under the Crimes Act may not, unless another regulation prescribes it.

“Inappropriate” sexual behaviour not defined. The rehabilitation program definition in section 2(1)(a) and (b) uses “inappropriate” alongside “unlawful”. This extends beyond criminal behaviour, potentially including conduct that is socially unacceptable but not illegal. Program providers must interpret this term, risking inconsistency. Courts may be asked to rule on whether a particular program covers inappropriate vs unlawful behaviour.

Alcohol/drug program approval process. Section 2(1)(e) offers two routes: Territory agreement under the Crimes (Sentence Administration) Act 2005, s 101, or director‑general consent after health consultation. The Territory agreement route is opaque: no criteria are published in the regulation. The consent route requires consultation, but the regulation does not specify a time limit or what happens if the health director‑general objects. An entity could be left in limbo.

Criminal justice entity list is exhaustive. Only the bodies named in section 3 qualify. This means that other agencies that perform similar functions (e.g., other counselling services, advocacy groups, interstate commissions) cannot claim the status unless the regulation is amended. Reliance on an unlisted entity could expose the disclosing body to liability for breach of privacy.

No grandfathering for expired entities. When subparagraphs expire, the entity simply drops off. There is no transitional provision in the current regulation to preserve information sharing for ongoing matters. Entities that were originally listed may have been relying on their status; after expiry, they lose it.

Interaction with the Act’s definitions. The regulation uses terms like “director‑general” without defining them; the Act or the Legislation Act 2001 provides definitions. The reference to “director‑general of the administrative unit responsible for the Health Act 1993” may change if administrative arrangements are reshuffled.

Penalty unit values are not in this regulation. The regulation does not state the dollar amounts; they are set by the Legislation Act 2001. The republished version includes a note on the title page that a penalty unit is $160 for an individual and $810 for a corporation, but these values can change. Practitioners must check the current value.

Compliance with the regulation is largely passive: it defines terms that other legal actors use. But various parties need to take active steps.

For victims. If you are a victim of negligent driving causing GBH or a category 2 work health and safety failure that resulted in death/serious injury/illness, you are eligible to make a victim impact statement. You should obtain the prescribed form from the court or prosecute authority and submit it within the time limits set by the Act. If you are a victim of any other offence, do not assume you can make a statement under this regulation; check the Act or seek legal advice.

For offenders. If a court orders you to attend a rehabilitation program, verify with your lawyer or corrections officer that the program is one listed in section 2. For alcohol/drug programs, ask whether the provider is approved under a Territory agreement or has director‑general consent. Attending an unapproved program may not satisfy the court order, putting you in breach. If you are ordered to a program for sexual behaviour, ensure it is specifically for adults or children as appropriate.

For program providers. To offer alcohol/drug rehabilitation programs to offenders, you have two options. First, seek a Territory agreement under the Crimes (Sentence Administration) Act 2005, section 101. This likely involves negotiation with the relevant government department. Second, seek the director‑general’s consent. Before giving consent, the director‑general must consult the health‑portfolio director‑general. Prepare documentation demonstrating the program’s quality, staff qualifications, and evidence base. There is no prescribed application form in the regulation; contact the director‑general’s office for procedures. Providers of the other four program categories do not need individual approval, but courts may still require evidence of the program’s suitability.

For criminal justice entities. If your organisation is listed in section 3, you can receive information from courts or corrections under the Act. Ensure your staff are trained on confidentiality obligations under the Act. If your organisation is not listed but believes it should be, contact the ACT Attorney‑General’s office to advocate for a regulation amendment.

For government officials. The director‑general responsible for administering the Health Act 1993 must be consulted before consent is given to an alcohol/drug program. Develop a standard consultation procedure to ensure no consent is issued without this step. The director‑general for disability is itself a listed entity; ensure appropriate information handling policies are in place.

General compliance monitoring. The regulation does not require periodic reporting or audits. However, courts and sentencing authorities should maintain a current version of the regulation to know which programs and entities are valid. Given the history of expiries, check the ACT legislation register for the latest republication. The regulation is short, so reading all sections and endnotes is quick but essential.

Practical tip. The regulation is only three operative sections. Print a current copy and keep it with the Crimes (Sentencing) Act 2005. Any court order that references a rehabilitation program or a criminal justice entity should be checked against this regulation to avoid jurisdictional error.