About the bill
The Crimes Amendment (Remissions of Sentences) Bill 2021 (the bill) seeks to amend the Crimes Act 1914 (Cth) to repeal section 19AA, which applies remissions or reductions granted under state or territory laws to federal sentences.
Section 19AA of the Crimes Act 1914 provides that where a state or territory law provides for the remission or reduction of state or territory prison sentences, this applies also to the remission or reduction of a federal sentence for prisoners in that state or territory.
Remissions or reductions in sentences are usually granted in recognition of restrictions placed on imprisoned people that are necessary in emergency circumstances. Usually remissions are automatically applied to reduce the federal offender's head sentence as soon as they have been granted.
Victoria is the only jurisdiction with laws providing significant remissions or reductions that apply to an imprisoned person under a federal offence. In Victoria these remissions are known as emergency management days (EMDs).
This bill would repeal section 19AA of the Crimes Act 1914 (Cth) so that it would no longer apply reductions or remissions in sentences granted to imprisoned people that are serving periods of imprisonment for federal offences.
The bill would apply to imprisoned people imprisoned for a federal sentence who are serving that sentence in a state or territory jail immediately before the date of commencement. Therefore, any remissions or reductions they had already been granted are taken to be of no effect.
It does not apply to a person who has already been released from imprisonment.
Victorian context
As of June 2021, 1151 people were imprisoned for federal offences around the country, 317 of these imprisoned people are imprisoned in Victoria. In Victoria EMDs are granted to reduce the sentences of imprisoned people, this is a result of administrative measures undertaken in accordance with section 58E of the Corrections Act 1986 (Vic) for good behaviour, or to imprisoned people who suffer a disruption or deprivation during an emergency or an industrial dispute in the jail where the sentence is being served as well as for other unforeseen circumstances.
Generally, EMDs provide an incentive for imprisoned people to maintain good behaviour in circumstances that could or would result in them being further deprived of their liberties. This in turn helps to maintain security and good order in prisons. Secondly, EMDs compensate imprisoned people for the impacts of increased deprivation and disruption during their imprisonment.
This is particularly evident during the current COVID-19 pandemic which resulted in even greater restrictions and deprivation of liberties in jails. For example:
reception and intake protective quarantine which include at times solitary confinement) for periods of up to 14 days;
prison lockdowns in response to suspected or actual cases, as well as when staff have attended exposure sites in the community;
clinical isolation of imprisoned people who have tested positive;
suspension of rehabilitative, counselling, educational and religious programs and services (with some service delivery moving to a remote model);
suspension of visits from family members, legal representatives and in-person service providers; and
significantly decreased out-of-cell time for access to exercise yards, outdoors areas, libraries and meal areas.
Human rights concerns
The Standing Committee for the Scrutiny of Bills in Scrutiny Digest 15 of 2021 reported that:
The 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.
The Australian Greens note that the government does not believe that this bill infringes the basic legal principle that laws should not apply retrospectively, the Standing Committee for the Scrutiny of Bills reported that:
...the committee notes that the effect of the bill is to deprive federal prisoners of a benefit which has previously accrued under the state legislation setting up the EMDs scheme and which has been automatically applied to their sentence under existing section 19AA of the Crimes Act 1914.
The committee therefore considers that this is different to a parole scheme where there has been a change in policy before a prisoner comes up on parole, as in this case, the effect of the change is to frustrate reasonable expectations a prisoner might have in relation to EMDs which have accrued and been applied automatically on the basis of having endured tougher conditions in prison than expected due to the COVID-19 pandemic.
While the committee acknowledges the policy intention behind this amendment, from a scrutiny perspective, the committee considers 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.
In its Human Rights Scrutiny Report of the bill, the Parliamentary Joint Committee on Human Rights noted that the retrospective application of the prohibition on remission and reductions to federal sentences among imprisoned people still serving federal sentences upon commencement of the proposed amendments to section 19AA of the Crimes Act 1914 needed further consideration.
The Parliamentary Joint Committee on Human Rights Committee’s report stated that:
questions remain as to whether the measure is arbitrary, noting that it does not only apply prospectively to ensure future grants of remissions will not apply to federal offenders, but also applies retrospectively so that those who have already had remissions applied will no longer receive them. The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of this Bill.
This government is as committed to not upholding basic human rights as they are committed to not being accountable for their many, many failures. This bill should not proceed.
Recommendation
This bill should not proceed due to serious concerns for its human rights implications.
Recommendation
Instead the government should enact a human rights charter to ensure no one is blocked from asserting their rights and dignities, for example, by preventing the retrospective enacting of laws.
Recommendation
The Commonwealth demonstrate leadership and fully resource the full, culturally safe implementation of the Optional Protocol on the Convention Against Torture, led by civil society and First Nations communities and organisations, particularly Aboriginal and Torres Strait Islander Legal Services.
Senator Lidia Thorpe
Greens Senator for Victoria