2.1
This chapter discusses the following key issues raised during the course of the inquiry:
the transmission of COVID-19 in prisons; and
the application provision.
2.2
The chapter concludes with the committee's view.
Post-sentence orders
2.3
The Law Council of Australia conceded that Emergency Management Days (EMDs) can create difficulties in applying for post-sentence orders. However, the Law Council opined that any difficulties EMDs may create in the application of post-sentence orders for federal offenders can be mitigated, stating:
it would be a relatively small portion of offenders (those convicted of terrorism offences) who could be subject to control orders, and that to apply this difficulty as a basis to remove remissions from the wider cohort of federal offenders would be a disproportionate response.
2.4
The Law Council continued that one possible solution would be to notify the relevant federal agency when a new release date is calculated 'so that they are aware and can keep track of it'.
2.5
The Victorian Aboriginal Legal Service (VALS) suggested that the challenges associated with applying for post-sentence orders 'can be managed with timely and accurate communications regarding the discretion to grant EMDs that rests with Corrections Victoria'. VALS also noted '[t]his should already be the practice'.
2.6
In their submissions, the Australian Federal Police (AFP) and the Attorney-General's Department raised concerns regarding the challenges intelligence and law enforcement agencies are facing in obtaining post-sentence orders under the current regime.
2.7
The AFP raised this particularly in the context of convicted terrorist offenders, noting that 'circumstances may arise which prevent the AFP being in a position to apply for and have the court consider a control order'. The AFP observed:
[i]n this circumstance there is a heightened risk to the community during the period of time between release and the imposition of a control order, where the offender cannot be managed to the full extent proportionate to the risk they pose to community safety.
2.8
Similarly, the Attorney-General's Department highlighted:
[s]hifting and shortening sentence expiry dates can impact the post-sentence management options for offenders who are eligible for a continuing detention order (CDO) under Division 105A of the Criminal Code Act 1995 (the Criminal Code) or a control order under Division 104 of the Criminal Code.
2.9
As stated by the Attorney-General's Department, a continuing detention order application, for example, is 'complex, time consuming and can take upwards of 12 months to prepare'. The department continued:
[if] an application for an order was not able to be made due to the application of sentence discounts curtailing available time, this serves to limit the tools available to law enforcement authorities to manage any risk posed by released offenders.
2.10
The AFP contended that 'the Bill is likely to ensure that in the future, sentence lengths and release times are more certain and the full suite of risk management measures can be put in place prior to release'.
Community safety
2.11
As discussed in 1.10, the Crimes Amendment (Remissions of Sentences) Bill 2021 (the bill) is intended to improve community safety by removing high numbers of EMDs granted to federal offenders, including high-risk federal offenders.
2.12
The Law Council of Australia rejected the argument that a reduced period in prison and a reduction in access to rehabilitative programs necessarily increases the risk of reoffending, stating '[f]ederal offences are not concentrated on capturing offenders of the type above, and include many offences at the lower end of the range of objective seriousness'.
2.13
VALS expressed a similar sentiment, emphasising that the examples used to highlight threats to community safety related only to terrorists, child sex offenders and drug traffickers, and not other types of federal offences.
2.14
Community Legal Centres Tasmania stated:
…the safest way to keep Australians safe is not by abolishing remissions for good behaviour but by investing in rehabilitation programs that address the cause of the offending behaviour.
2.15
The AFP argued that the bill addresses the issue of community safety by ensuring federal offenders serve their sentence without remissions or reductions. The AFP described this as being 'essential to community safety'. The AFP observed:
The sentencing process takes into account a range of factors that balance risk, the nature of offending and the circumstances of the offender. Premature release, due to schemes such as EMDs, can detract from this calculus. This can result in sentences that are not proportional to the gravity of the offence committed or the risk to the community.
2.16
The AFP highlighted a particular concern for community safety in relation to convicted terrorist offenders and noted the risk early release poses to the community.
2.17
The Attorney-General's Department reiterated the view that the bill addresses issues around community safety, stating that the application of EMDs can mean an offender is unable to 'access offence-specific rehabilitation programs in prison' and may be released into the community without treatment intended to 'reduce the risk they pose to community safety'.
The transmission of COVID-19 in prisons
2.18
Some submitters were concerned that the removal of EMDs may impact the spread or management of COVID-19 in Victorian prisons.
2.19
The Australian Lawyers Alliance stated that 'EMDs provide an important basis for managing the spread of COVID-19 in Victorian correctional centres'. The Law Council shared this view, voicing concern:
that the Bill removes an important tool available in some states and territories to incentivise federal offenders to comply with directions in times of emergency, including infection control measures such as mask-wearing, social distancing and quarantine.
2.20
The Law Council also agreed that '[e]vidence provided by government agencies and the legal profession indicates that these measures have been essential to preserve the orderly management of prisons and safeguard prisoner health'.
2.21
In response to these concerns, the Attorney-General's Department, referencing the Australian Law Reform Commission's report Same Crime Same Time: Sentencing of Federal Offenders, stated 'remissions, or the threat of their removal, were not a necessary motivator of prison conduct and that there were other ways of sanctioning prisoners for unacceptable behaviour'.
2.22
The Attorney-General's Department also highlighted '…the courts have already considered the impact of the COVID-19 pandemic in sentencing offenders to terms of imprisonment'.
Application provision
2.23
Some submitters raised concerns regarding the application provision and retrospectivity. For example, Community Legal Centres Tasmania stated:
…abolishing remissions without addressing the causes of offending will not improve community safety. Nevertheless, in the event that the Government intends to pass this Bill into law we recommend removing its retrospectivity.
2.24
Similarly, VALS recommended that:
…the current amendments to s. 19AA of the Crimes Act 1914 (Cth) should be revised to ensure that people serving federal sentences prior to the commencement of the amendments continue to be eligible for remissions under the relevant state legislation.
2.25
The Law Council emphasised that retrospective application is 'generally inconsistent with the rule of law' and expressed its concern that the removal of reductions already applied will impact mental health and the recognition of restrictive measurements.
2.26
The Attorney-General's Department contended:
[r]emissions and reductions are not an entitlement, and it is not unreasonable to expect that changes may be made from time to time to discretionary benefits such as these.
2.27
The Attorney-General's Department also stated that the changes proposed in the bill would not result in any additional punishments being imposed, nor would they change the sentence imposed by the sentencing court, and that these principles have been upheld in other criminal justice contexts.
Committee comment
2.28
The committee acknowledges the concerns raised by submitters during the course of the inquiry.
2.29
The committee is concerned by evidence from the AFP and the Attorney-General’s Department about the challenges they face applying for post-sentence orders and maintaining community safety in circumstances where a federal offender convicted of a serious crime, such as a terrorism offence or child sexual exploitation, has their sentence reduced through the application of EMDs. As the AFP and Attorney-General's Department explained, the bill is intended to address these challenges and provide the Commonwealth government with greater certainty in the sentencing of federal offenders.
2.30
The committee recognises that administrative tools such as EMDs have been used by state and territory governments to manage prisons during the COVID-19 pandemic. The committee agrees that prisons must be appropriately managed during the pandemic to ensure the health and safety of prisoners, employees in state and territory justice systems, and the Australian community more broadly. However, the committee accepts the evidence given by the Attorney-General's Department that sentencing courts are taking into account the impact of the COVID-19 pandemic in sentencing offenders to terms of imprisonment.
2.31
The committee draws to the Commonwealth government's attention concerns raised during the course of this inquiry about the retrospective application of the bill. The committee notes, however, that on balance, these concerns do not outweigh the clear advantages associated with ensuring greater certainty that sentencing decisions for federal offenders are not reduced or amended. This is particularly the case when these offenders continue to pose a serious risk to the community. Moreover, the committee notes that the bill would not authorise the removal of remissions granted to offenders who have already been released from custody.
2.32
The committee recommends that the Senate passes the bill.
Senator the Hon Sarah Henderson
Chair