1.1
On 26 August 2021, on the recommendation of the Selection of Bills Committee, the Senate referred the Crimes Amendment (Remissions of Sentences) Bill 2021 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 14 October 2021. On 6 October 2021, the reporting date was extended to 5 November 2021.
1.2
An appendix to the Selection of Bills Committee report stated that a principal reason for the bill's referral was consideration of the '[i]mpact of the Bill on the Australian community and individuals'.
Conduct of the inquiry
1.3
In accordance with usual practice, the inquiry was advertised on the committee's webpage. The committee called for submissions by 17 September 2021 and wrote to a range of stakeholders inviting them to submit.
1.4
The committee received six submissions, listed at Appendix 1.
1.5
The committee thanks submitters for their contributions to this inquiry.
Structure of this report
1.6
This report comprises two chapters:
Chapter 1 summarises the conduct of the inquiry and outlines the key provisions of the bill.
Chapter 2 considers key issues discussed in evidence to the inquiry and concludes with the committee's view.
Purpose of the bill
1.7
The bill would repeal section 19AA of the Crimes Act 1914 (Cth) (the Crimes Act) to remove provisions which allow for remissions or reductions to federal sentences granted under state or territory laws.
1.8
The explanatory memorandum notes '[m]ost states and territories have abolished remissions in the form dealt with under subsections 19AA(1), (1A) and (4) of the Crimes Act'. Victoria is the exception to this.
1.9
In Victoria, remissions or reductions are dealt with by way of Emergency Management Days (EMDs). The explanatory memorandum notes these have been granted to federal offenders in 'high numbers' during the COVID-19 pandemic.
1.10
According to the explanatory memorandum, the proposed repeal of s 19AA:
enables the community to be satisfied that federal offenders will serve the sentence as handed down by the sentencing court regardless of the state or territory in which they are imprisoned;
restores respect for the sentence imposed by the sentencing court and ensures that federal offenders will serve the sentence set down by the sentencing court;
restores predictability in the calculation of sentences and facilitates appropriate preparations for the release of offenders as a result;
mitigates against the risks to community safety as a result of the high numbers of EMDs being granted to federal offenders, including high-risk federal offenders, during the COVID-19 pandemic; and
increases the time federal offenders have access to custodial-based rehabilitation and treatment programs, which has been shortened due to the application of high numbers of EMDs.
Key provisions of the bill
1.11
The bill would amend the Crimes Act and comprises one schedule.
Repeal of section 19AA
1.12
Item 2 of Schedule 1 of the bill would repeal section 19AA of the Crimes Act.
1.13
The bill proposes to repeal this section so that remissions or reductions granted under state or territory laws would not apply to federal offenders. This includes the application of EMDs which have been granted in Victoria to offenders due to lockdown measures implemented in prisons in response to the COVID-19 pandemic.
Clean street time provisions
1.14
Item 10 of Schedule 1 of the bill would insert subsection 19AW(3A) into the Crimes Act.
1.15
Subsection 19AW(3A) would allow for 'clean street time' to be taken into account where an offender's parole is revoked by the Attorney-General under section 19AU in a state or territory that does not have laws providing for remissions or reductions.
1.16
Currently, provisions relating to 'clean street time' for federal offenders are contained in subsections 19AA(2) and (3) of the Crimes Act. According to the explanatory memorandum, subsection 19AW(3A):
…retains the effect of subsection 19AA(3) by moving the substance of the provision into section 19AW, which is the section of Part IB of the Crimes Act which deals with the arrangements for hearings on breach of parole matters following revocation of parole by the Attorney-General under section 19AU.
Application provision
1.17
Item 11 of Schedule 1 of the bill outlines the application provision.
1.18
Under section (4) of Item 11, the proposed amendments would apply in relation to pre-commencement remission or reduction of a federal sentence. Therefore, any remissions or reductions which have accrued would not apply.
1.19
The explanatory memorandum notes the purpose of this provision is to mitigate risks to community safety.
Consideration by other parliamentary committees
Senate Standing Committee for the Scrutiny of Bills
1.20
The Senate Standing Committee for the Scrutiny of Bills (scrutiny committee) raised one issue with the bill and sought further advice from the Attorney-General.
1.21
The scrutiny committee raised concerns regarding the retrospective application of the bill, noting that:
[t]he committee has a long-standing scrutiny concern about provisions that have the effect of applying retrospectively as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals.
1.22
While the issue of retrospective application was addressed in the explanatory memorandum in relation to its compatibility with human rights, the scrutiny committee noted the effect of retrospectivity may 'frustrate reasonable expectations' of a federal offender serving in a state or territory prison where emergency management days have been applied in response to the COVID-19 pandemic. The scrutiny committee noted:
…that where reasonable expectations are undermined in cases like this there is a risk that those affected and the public at large will perceive that the law is being applied arbitrarily.
1.23
The scrutiny committee requested more detailed advice from the Attorney-General as to:
why it is considered necessary and appropriate to, in effect, retrospectively deprive prisoners of already accrued remission days; and
whether the bill can be amended to provide that the repeal of section 19AA of the Crimes Act 1914 only apply prospectively.
1.24
In response, the Attorney-General advised the removal of the ability to apply remissions to federal offenders:
…does not impose any additional punishments on federal offenders, and does not interfere with the sentence fixed by the court. The measures in the Bill simply restore the sentence that was justly set down by the court. The principles have been upheld in other criminal justice contexts.
1.25
The Attorney-General also contended that 'limited retrospective application' is required as '[l]imiting the application of the amendments to remissions that may be granted in the future does not address the risks to community safety…'.
1.26
The Attorney-General further contended that the amendments in the bill are proportionate 'in that they apply to all federal offenders and do not seek to remove remissions granted to offenders who have already been released from custody'.
1.27
Noting the Attorney-General's advice and acknowledging the policy intent of the bill, the scrutiny committee reiterated its concern about retrospectivity and the detrimental effect on federal offenders who have already been granted EMDs.
1.28
The scrutiny committee concluded that it 'draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of, in effect, retrospectively depriving prisoners of already accrued remission days'.
Parliamentary Joint Committee on Human Rights
1.29
The Parliamentary Joint Committee on Human Rights (PJCHR) raised one issue – in relation to the right to liberty – and sought further advice from the Attorney-General.
1.30
The PJCHR raised concerns in relation to the retrospective application of the bill and whether it is an 'arbitrary' deprivation of liberty.
…the effect of the bill will be to deprive federal offenders of a benefit that has already been granted to them. It would appear that such federal offenders would have a reasonable expectation that their period of imprisonment would be reduced according to how many EMDs they had been granted. As such, there appears to be some risk that depriving them of this benefit lacks predictability and may appear to be unjust, and therefore may amount to an arbitrary deprivation of liberty.
1.32
The PJCHR requested the Attorney-General's advice about 'how depriving federal offenders of the benefit EMDs already accrued is appropriate, just and predictable and therefore not arbitrary'.
1.33
In response, the Attorney-General advised the removal of the ability to apply remissions 'does not impose any additional punishments on federal offenders, and does not interfere with the sentence fixed by the court'.
1.34
Referring to the PJCHR's comment that '[m]itigating risks to community safety is a legitimate objective for the purposes of international human rights law', the Attorney-General contended:
'[t]he measures in the Bill are proportionate to achieving the legitimate objective of the Bill, which is to protect the community from the risks posed as a result of significant and unpredictable reductions to the head sentences of federal offenders.
1.35
The Attorney-General further argued that '[t]he measures are proportionate, in that they apply to all federal offenders and do not seek to remove remissions granted to offenders who have already been released from custody'.
1.36
In response to the Attorney-General's advice that the granting of significant numbers of EMDs undermines the sentencing court, the PJCHR noted that remissions or reductions could not apply to non-parole periods which are set by the court as section 19AA provides that remissions or reductions do not remit or reduce the non-parole period or pre-release period.
1.37
In relation to the argument that the bill would not impose any additional punishments but instead restore the sentence set down by the court, the PJCHR restated its concern:
…as to whether the measure is arbitrary is that it applies not only to the prospect of future grants of remissions (similar to the prospect of release on parole), but also applies retrospectively so that those who have already had remissions applied to their sentence will no longer receive them.
1.38
The Attorney-General's advice stated that limiting the application of EMDs does not address the risks posed to community safety; in response, the PJCHR observed that 'it is not clear why there are no other measures to address the risks to community safety, noting such prisoners would need to be eligible for parole to be eligible to receive a remission or reduction'. Similarly, in response to the Attorney-Generals' concerns around operational challenges for managing offenders, particularly high risk terrorist offenders, the PJCHR remarked 'it is not clear that any operational difficulties potentially faced by the executive would justify denying a person's release from detention'.
1.39
Finally, in response to the Attorney-General's advice about proportionality (see 1.35), the PJCHR noted 'that the application of a measure to all persons within a certain cohort, which results in a longer period of detention, is not likely to improve the proportionality of the measure'.
1.40
The PJCHR stated that should the bill have retrospective application, it 'will result in some prisoners having to serve a longer period of imprisonment than they otherwise would have, which limits the right to liberty'. The PJCHR further remarked that '[u]nder this right, consideration for any forms of early release must be in accordance with the law and such release must not be denied on grounds that are arbitrary'. The PJCHR stated that the Attorney-General has not established that the deprivation would not be arbitrary.
1.41
In conclusion, the PJCHR drew 'these human rights concerns to the attention of the Attorney-General and the Parliament'.