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Crimes Amendment (Remissions of Sentences) Bill 2021



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ISSN 1328-8091

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BILLS DIGEST NO. 29, 2021-22 18 NOVEMBER 2021

Crimes Amendment (Remissions of Sentences) Bill 2021 Karen Elphick Law and Bills Digest Section

Contents

Purpose of the Bill ........................................................... 3

Background ..................................................................... 3

Granting of EMDs in Victoria ..................................... 4

Disruption and deprivation due to the COVID-19 pandemic ............................................................ 5

Committee consideration ................................................ 5

Senate Standing Committee on Legal and Constitutional Affairs .................................................. 5

Senate Standing Committee for the Scrutiny of Bills .............................................................................. 6

Policy position of non-government parties/independents...................................................... 6

Position of major interest groups..................................... 6

Law Council of Australia .............................................. 6

Victorian Aboriginal Legal Service ............................... 7

Australian Federal Police ............................................. 8

Community Legal Centres Tasmania ........................... 8

Australian Lawyers Alliance ........................................ 8

Attorney-General’s Department ................................. 9

Financial implications ...................................................... 9

Statement of Compatibility with Human Rights................ 9

Parliamentary Joint Committee on Human Rights ..... 9 Key issues and provisions .............................................. 11

Repeal of remissions ................................................. 11

Early release could occur before an application for a Continuing Detention Order ........................... 11

Retrospective application of the Bill ....................... 12

Effect of remissions and lockdown on federal prisoners in Victoria ................................................ 14

Date introduced: 25 August 2021

House: Senate

Portfolio: Attorney-General

Commencement: The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2021.

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Crimes Amendment (Remissions of Sentences) Bill 2021 2

Different treatment for state and federal offenders in the same prison .................................. 14

ALRC recommendations ........................................ 15

Changes to discount for ‘clean street time’ .............. 16

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Crimes Amendment (Remissions of Sentences) Bill 2021 3

Purpose of the Bill The purpose of the Crimes Amendment (Remissions of Sentences) Bill 2021 (the Bill) is to amend the Crimes Act 1914 (the Act) to:

• repeal section 19AA, which applies remissions or reductions granted under state or territory laws to federal sentences and

• impose a consistent regime in every jurisdiction that allows courts to consider periods of compliance with parole obligations when dealing with federal offenders for breaches of parole.

Background The Commonwealth does not own or operate any prisons and federal prisoners are housed in state and territory prisons. As of June 2021, 1,151 people were serving federal sentences in prisons across Australia. Prisons located in Victoria accommodated 317 people serving federal sentences as of June 2021 (that is, 27.5% of all persons serving federal sentences).1 As at 30 June 2020, convicted federal offenders comprised approximately six per cent of Victoria’s total prison population.2

Section 19AA of the Act currently provides that where a state or territory law provides for the remission or reduction of state or territory prison sentences, that remission or reduction also applies to federal prisoners held in that state or territory.

Remissions or reductions are usually granted in recognition of restrictions placed on prisoners that are necessary in various emergency circumstances, such as restrictions on out-of-cell time as a result of natural disasters or staffing shortages. Generally, these remissions are automatically applied to reduce the federal offender's head sentence as soon as they have been granted.3

The Attorney-General’s Department has noted the application of section 19AA is not discretionary:

The operation of section 19AA means that emergency management days granted to federal offenders are automatically recognised in relation to a federal offender’s sentence. There is no discretion about the application of remissions and reductions to federal offender sentences.4

A state or territory law that enables the remission or reduction of a non-parole period of a state or territory prison sentence does not apply to a federal sentence (unless the remission or reduction is due to industrial action by prison warders).5

The National Judicial College of Australia (NJCA) advises:

When imposing a sentence [for a federal offence], there is no statutory or common law requirement for the court to have regard to the absence of remissions in the state or territory in which the offender is to be sentenced.

Formerly, sections 16G and 19AG [of the Crimes Act] required a court, in States or Territories which did not have remissions, to take that fact into account and adjust the length of sentence and the non-parole period or pre-release period imposed on a federal offender. Sections 16G and 19AG were repealed for all federal sentences imposed after 16 January 2003. In his Second Reading Speech to Parliament, the

1. Victorian Aboriginal Legal Services (VALS), Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Crimes Amendment (Remissions of Sentences) Bill 2021, September 2021, p. 5; citing Australian Bureau of Statistics (ABS), ‘Corrective services, Australia’, ABS website, June Quarter 2021.

2. Explanatory Memorandum, Crimes Amendment (Remissions of Sentences) Bill 2021, pp. 4-5. 3. Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee), Scrutiny digest, 15, 2021, 16 September 2021, p. 17. 4. Attorney-General’s Department (AGD), Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Crimes Amendment (Remissions of Sentences) Bill 2021, September 2021, p. 2.

5. Subsection 19AA(1A) of the Crimes Act 1914. See Judicial Commission of NSW (JudComNSW), Sentencing bench book, ‘Sentencing Commonwealth offenders’, [16-060] Remissions, JudComNSW website.

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Minister noted that this amendment followed ‘the abolition of remissions in most states and territories and the move towards removal of remissions in the remaining jurisdictions’.6

Victoria is currently the only jurisdiction with laws providing significant remissions or reductions that are applicable to federal offenders' sentences. In Victoria these remissions are known as emergency management days (EMDs).7

The Bill was prompted by the granting of EMDs in Victoria; however, it will also apply to federal prisoners in any state or territory which makes provisions in the future allowing for the remission or reduction of sentences.

Granting of EMDs in Victoria The Corrections Act 1986 (Vic) provides in section 58E:

(1) The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period (if one has been fixed in respect of the sentence) on account of good behaviour while suffering disruption or deprivation—

(a) during an industrial dispute or emergency existing in the prison or police gaol in which the sentence is being served; or

(b) in other circumstances of an unforeseen and special nature.

(2) Subsection (1) applies to all sentences of imprisonment, including any imposed for murder, irrespective of whether the sentences were imposed before or after the commencement of this section.

(3) This section does not apply to any prisoner (whether or not the prisoner was involved in any way) in respect of or in relation to—

(a) any event (including any emergency or riot) at the Metropolitan Remand Centre, Victoria, on 30 June 2015 and 1 July 2015 and the security response to that event; or

(b) any emergency, riot or other significant security incident that is caused or contributed to by that prisoner or any other prisoner.

The Explanatory Memorandum gave the following case examples of EMDs granted to some federal offenders since the beginning of the COVID-19 pandemic:8

• More than 340 EMDs were granted to a terrorism-related offender during the period he was on remand. As a result, this terrorist offender was released on the date of his sentencing, despite the court fixing a head sentence that did not expire for a further 9 months. [The offender was released on that date because he had been on remand for longer than the non-parole period of his sentence.9]

• More than 300 EMDs were granted to a child sex offender. As a result, this high risk offender was released significantly earlier than the date set by the court at sentencing. The offender had refused to participate in offence specific custodial treatment, had an extensive prior criminal history, and a history of substance abuse and breaching community based orders.

6. National Judicial College of Australia (NJCA), Commonwealth sentencing database, ‘Remissions’, NJCA website. Citations have been omitted from this quotation and can be viewed in the source document. 7. Scrutiny Committee, op. cit., p. 17. 8. Explanatory Memorandum, Crimes Amendment (Remissions of Sentences) Bill 2021, p. 2. 9. Attorney-General’s Department (AGD), Submission to the Senate Standing Committee on Legal and Constitutional Affairs,

Inquiry into the Crimes Amendment (Remissions of Sentences) Bill 2021, September 2021, p. 8.

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• A combined total to date of more than 1000 EMDs have been granted to five offenders serving sentences for attempting to engage in a terrorist act, conspiring to do an act or acts in preparation for a terrorist act, and/or engaging in a terrorist act.

• More than 160 EMDs were granted to a drug trafficker, even though the court at sentencing had already taken into account the more onerous conditions of imprisonment as a result of the additional restrictions necessary to manage the risks of a COVID-19 prison outbreak to moderate the sentence of imprisonment and the non-parole period imposed. 10

Disruption and deprivation due to the COVID-19 pandemic The Commissioner for Corrections Victoria (Commissioner) determines whether EMDs are granted. During the COVID-19 emergency, the Commissioner has granted EMDs equivalent to the number of days of disruption or deprivation on a ‘close to equivalent’ basis.11

During the Inquiry into the Victorian Government's Response to the COVID-19 Pandemic, the Commissioner noted that ‘[EMDs are] a strategy that has been used for decades to keep the system safe in these emergency times, and in this case it has done that’.12 In responses to Questions on Notice she also noted:

As part of the COVID-19 response in prisons, prisoners have experienced restrictive regimes, such as significantly less hours out of cell or lockdowns, or being placed in a quarantine regime, such as 14 days in protective quarantine upon reception into prison. In many instances, quarantine regimes result in prisoners being held in their cells for 23-24 hours per day.13

The Law Council of Australia (Law Council) noted:

As the COVID-19 pandemic continues, prisons and youth detention centres remain faced with the challenge of ensuring a safe environment for inmates and detainees who live in close proximity in hotspots for communicable diseases. In these settings, Aboriginal and Torres Strait Islander peoples are particularly vulnerable to serious and critical outcomes should they be exposed to the SARS-CoV-2 virus.

Prisons may also become dangerous vectors of spread to the broader community, and measures to limit infections across these facilities will have benefits well beyond those who are presently detained.14

Committee consideration

Senate Standing Committee on Legal and Constitutional Affairs The Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 14 October 2021. Six submissions were made to the Inquiry which are addressed below under the heading ‘Position of major interest groups’. Details of the inquiry are at the Inquiry webpage. The Senate Standing Committee on Legal and Constitutional Affairs requested an extension of time to report until 5 November 2021.

10. Ibid., pp. 6-7. 11. Victorian Department of Justice and Community Safety, Emergency management days - COVID-19: fact sheet for prisoners, 20 April 2020. 12. Commissioner to Public Accounts and Estimates Committee, Inquiry into the Victorian Government's Response to the

COVID-19 Pandemic, Hearing 26 August 2020, transcript page 22, cited in ‘Questions on Notice 1’, p. [1]. 13. Commissioner to Public Accounts and Estimates Committee, Inquiry into the Victorian Government's Response to the COVID-19 Pandemic, Corrections Victoria, ‘Questions on Notice 1’, Response to Questions on Notice taken by Dr Emma

Cassar, Commissioner, p. [2]. 14. Law Council of Australia, Submission the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Crimes Amendment (Remissions of Sentences) Bill 2021, 21 September 2021, p. 5, citing Letter from Pauline Wright

(President, Law Council of Australia) to Christian Porter MP (Attorney-General) in relation to the federal criminal justice system and COVID-19, 26 March 2020.

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In its report, the Committee recommended that the Bill be passed.15 The Australian Greens issued a dissenting report, recommending that the Bill not proceed ‘due to serious concerns for its human rights implications’.16 The Greens further recommended that the Federal Government enact a human rights charter and 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’.17

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) reported on the Bill in Scrutiny Digest 15 of 2021.18

The Scrutiny Committee has a long-standing concern about the effect of laws applying retrospectively, particularly where the law will have a detrimental effect on individuals. That issue is discussed further under the heading ‘Key issues and provisions’.

Policy position of non-government parties/independents As set out above, the Greens issued a dissenting report to the Senate Standing Committee on Legal and Constitutional Affairs’ report on the Bill, recommending that the Bill not proceed.19 The Greens noted the concerns expressed by the Scrutiny Committee and the Parliamentary Joint Committee on Human Rights (discussed further under the heading ‘Key issues and provisions’) and concluded:

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.20

Position of major interest groups

Law Council of Australia The Law Council of Australia (Law Council) and Law Institute of Victoria (LIV) advise that since March 2020, Victorian prisons have implemented restrictive policies to reduce the spread of COVID-19 in prisons.

During the pandemic, LIV members have observed significant disruption and restrictions imposed on their clients, where prisoners are deprived of family contact and have suffered substantial disruption to their rehabilitation and access to programs to reduce re-offending and assistance for mental health issues due to significant isolation and quarantine.

It is the LIV’s understanding that a prisoner at the Metropolitan Remand Centre tested positive for SARS-CoV-2 after arriving on Friday, 10 September 2021, with more than 750 prisoners forced into lockdown.

Since late March 2020, Victorian prisons have implemented a range of policies to restrict, protect and prevent COVID-19 from spreading in prisons by:

15. Senate Legal and Constitutional Affairs Legislation Committee, Crimes Amendment (Remissions of Sentences) Bill 2021, The Senate, Canberra, November 2021, p. vii. 16. Ibid., p. 17; Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York, 18 December 2002, [2018] ATS 5 (entered into force for Australia 20 January 2018). 17. Ibid., p. 18. 18. Scrutiny Committee, op. cit., pp. 17-19. 19. Senate Legal and Constitutional Affairs Legislation Committee, Crimes Amendment (Remissions of Sentences) Bill 2021, op. cit.,

p. 17.

20. Ibid.

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• receiving and transferring prisoners in quarantine for up to 14 days

• isolating prisoners who have tested positive

• locking down units and prisons when there is a suspected case or outbreak

• banning contact visits and property drop-offs - including from legal representatives

• decreasing out-of-cell time and access to exercise yards and outdoor areas and

• ceasing in-person programs and services including education, rehabilitation, libraries, counselling, chaplaincy and religious services.21

The Law Council and LIV urge reconsideration of the Bill on the basis 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 quarantine22

• evidence 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 health23

• federal offenders will not have the opportunity to earn the same remissions or reductions available to their state/territory cellmates, and this will create a broader inconsistency in the management of prisoners in the same facility24

• the retrospective removal of remission and reduction schemes (including the eradication of a prisoner’s EMD credit) is unjustified and inconsistent with the expectations of prisoners and the purposes of granting EMDs, and contrary to the administration framework in place at the time these prisoners were sentenced and25

• the proposal to retrospectively erase EMDs will have a significant adverse impact on prisoner mental health.26

Victorian Aboriginal Legal Service The Victorian Aboriginal Legal Service (VALS) is opposed to the Bill. VALS noted the specific hardships experienced in Victorian prisons during the COVID pandemic and submitted the Bill should not proceed because:

• there is a significant risk that passing this Bill will lead to disruption in Victorian prisons:

- the retrospective application of the legislation would result in people serving federal sentences losing EMDs they have already been notified will be granted and may cause high levels of distress in affected prisoners

- people serving federal sentences during the extreme disruptions and deprivations suffered and continuing to be suffered in Victoria will have a reduced incentive to be of ‘good behaviour’.27

21. Law Council of Australia (LCA), Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Crimes Amendment (Remissions of Sentences) Bill 2021, 21 September 2021, p. 8; see also VALS, Submission, op. cit., p. 6. 22. Ibid., p. 5. 23. Ibid. 24. Ibid. 25. Ibid., p. 13. 26. Ibid. 27. VALS, Submission, op. cit., p. 6.

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• reducing the prison population via EMDs has a critical health and safety benefit during the pandemic and28

• the retrospective application of the Bill to EMDs already granted has human rights implications and may amount to arbitrary detention.29

Australian Federal Police The Australian Federal Police (AFP) is supportive of the Bill on the basis that:

Ensuring that offenders serve their sentence without remissions and reductions is essential to community safety …

The incarceration of offenders limits their movements to a prison setting, removing the threat to the community for the duration of their sentence. It also provides the offender with the opportunity and time to go through appropriate programs and pathways towards rehabilitation, minimising risk to the community upon their expected release.30

Community Legal Centres Tasmania Community Legal Centres Tasmania (CLC Tas) is opposed to the Bill and expressed three main concerns:

• failure to take into account the National Agreement on Closing the Gap targets31

• the retrospectivity of provisions and

• failure to acknowledge that a safer community is built on addressing the causes of crime not increased imprisonment.

We are concerned that the explanatory materials provided with the Bill fail to address the National Agreement on Closing the Gap … The overrepresentation of Aboriginal and Torres Strait Islander people in Australia's prison system and the impact of abolishing remissions should be considered before any further debate on the Bill takes place, particularly given the Closing the Gap target of reducing the rate of Aboriginal and Torres Strait Islander adults held in incarceration by at least 15 per cent by 2031.32

Australian Lawyers Alliance The Australian Lawyers Alliance (ALA) is opposed to the Bill and particularly opposed to it proceeding during the COVID-19 pandemic. The ALA submits that, in the context of the COVID-19 pandemic, it is not appropriate to remove EMDs from federal prisoners because:

• lockdown has had a serious adverse impact on prisoners’ conditions in detention settings and on prisoner’s families, particularly children

• it is a useful tool available to Victorian correctional facilities to manage the outbreak of COVID-19 in correctional settings and ameliorate the effect of lockdown on prisoners

• it is appropriate and fair that prisoners who are subject to the conditions of state and territory detention facilities should be eligible for any remissions as provided by state laws.

28. Ibid., pp. 7-8. 29. Ibid., pp. 10-11. 30. Australian Federal Police (AFP), Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Crimes Amendment (Remissions of Sentences) Bill 2021, 21 September 2021, p. 1.

31. National Agreement on Closing the Gap, July 2020. See especially Target 10: ‘By 2031, reduce the rate of Aboriginal and Torres Strait Islander adults held in incarceration by at least 15 per cent’ and Target 11: ‘By 2031, reduce the rate of Aboriginal and Torres Strait Islander young people (10-17 years) in detention by at least 30 per cent’ at pp. 26-29.

32. Community Legal Centres Tasmania, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Crimes Amendment (Remissions of Sentences) Bill 2021, 24 September 2021, pp. 1-2 (citations removed).

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The ALA submits that the Bill should not proceed at this time, as EMDs provide an important basis for managing the spread of COVID-19 in Victorian correctional centres. Moreover, it provides a mechanism by which the number of people in Victorian prisons can be reduced.33

...

The ALA is concerned about the reliance on lockdowns and EMDs as tools to manage COVID19 outbreaks in detention settings, noting that in March 2021 the Department of Criminology at Oxford University reported the serious adverse impact of lockdowns on prisoners’ families, particularly children. The report noted:

This loss of contact has negatively impacted children’s relationships with their imprisoned parents and their mental and physical health and wellbeing. Children may not understand why contact has stopped and may blame themselves. The effects of this loss of contact and disruption to family relationships are likely to be long term and will affect family reunification and resettlement after imprisonment.34

Attorney-General’s Department The Attorney-General’s Department (AGD) argues:

The measures in the Bill are a proportionate response to federal offenders receiving significant discounts off their sentence as a result of the COVID-19 pandemic. The repeal of section 19AA means that federal offenders will serve the sentence that was handed down by the sentencing court, as the sentencing court determined was appropriate for that federal offender.35

Financial implications The Commonwealth does not own or operate any prisons. The Explanatory Memorandum states:

The financial impact of this Bill is limited to the costs associated with housing federal prisoners in Victoria. The Commonwealth does not own or operate any prisons and federal prisoners are housed in state and territory prisons consistent with section 120 of the Australian Constitution. According to the Australian Bureau of Statistics, as at 30 June 2020, convicted federal offenders comprised approximately six per cent of Victoria’s total prison population. As such, the overall financial impact on any states and territories will be negligible.36

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.37

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (PJCHR) reported on the Bill in Human rights Scrutiny Report 11 of 2021.38 The PJCHR expressed some preliminary concern about the Bill and

33. Australian Lawyers Alliance, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Crimes Amendment (Remissions of Sentences) Bill 2021, 13 September 2021, p. 5. 34. Ibid., p. 6. 35. AGD, Submission, op. cit., p. 7. 36. Explanatory Memorandum, Crimes Amendment (Remissions of Sentences) Bill 2021, pp. 4-5. 37. The Statement of Compatibility with Human Rights and overview of the human rights impact of the Bill can be found at p. 6 of

the Explanatory Memorandum to the Bill, with an analysis of the human rights impacted at pp. 6-13. 38. Parliamentary Joint Committee on Human Rights (PJCHR), Human rights scrutiny report, 11, 2021, 16 September 2021, pp. 18- 21.

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sought further information from the Attorney-General, particularly in relation to the potentially retrospective and arbitrary operation of the Bill:

The committee notes this bill seeks to repeal the recognition of remissions or reductions in prison sentences under state or territory law for federal offenders. The committee notes that during the COVID-19 pandemic, prisoners in Victoria have been granted a high number of remissions or reductions to their sentences in recognition of good behaviour while experiencing greater restrictions placed on prisoners during the pandemic. This bill would mean that existing and future remissions or reductions would not be applied for federal offenders serving periods of imprisonment.

The committee considers that cancelling existing remissions or reductions to sentences will result in some federal prisoners having to serve a longer period of imprisonment than they otherwise would have, which therefore engages and would appear to limit the right to liberty. The committee notes that under the right to liberty consideration for any forms of early release from prison must not be denied on grounds that are arbitrary, which includes questions of inappropriateness, injustice, lack of predictability and due process of law, as well as reasonableness, necessity and proportionality.

The committee considers that the measure seeks to achieve the legitimate objective of mitigating risks to community safety by ensuring prisoners are not released early, and potentially before they have been able to utilise all rehabilitation and reintegration options available to them. However, 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, and as such seeks the Attorney-General's advice as to… how depriving federal offenders of the benefit of EMDs already accrued is appropriate, just and predictable and therefore not arbitrary.39

In response, the Attorney-General advised:

The granting of significant numbers of emergency management days is inappropriate, as it interferes with, and undermines, careful and considered sentencing decisions made by the court. Sentencing courts undertake a complex and detailed consideration of these individual circumstances in determining the appropriate sentence for offenders, informed by precedent and sentencing principles.

The removal of the ability to confer significant sentence discounts in this manner is appropriate. It 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. These principles have been upheld in other criminal justice contexts.

Limiting the application of the amendments to remissions that may be granted in the future does not address the risks to community safety posed by the significant reductions in sentences for offenders currently in custody. For this reason, the provisions need to have limited retrospective application.

The 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.40

After considering the Attorney-General’s advice, the PJCHR concluded that the Bill ‘engages and would appear to limit the right to liberty’.41 The PJCHR advised that while the Bill seeks to ‘achieve

39. Ibid., pp. 20-21. 40. PJCHR, Human rights scrutiny report, 12, 2021, 20 October 2021, pp. 30-31. 41. Ibid., p. 33.

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the legitimate objective of mitigating risks to community safety by ensuring prisoners are not released early’ it considered that the Attorney-General ‘has not established that depriving federal offenders of a benefit that has already been granted to them, where they would have a reasonable expectation that their period of imprisonment would be reduced, is not arbitrary’.42 Accordingly, the PJCHR concluded:

…there is a risk that depriving prisoners of this benefit lacks predictability and is unjust, and therefore amounts to an arbitrary deprivation of liberty as a matter of international human rights law.43

Key issues and provisions

Repeal of remissions Item 2 repeals section 19AA of the Crimes Act. Item 1 and items 3-8 are minor amendments consequential to that repeal. The effect is to no longer apply to federal prisoners the remission or reduction of sentences provided by state or territory law.

Early release could occur before an application for a Continuing Detention Order The terms of Division 105A of the Criminal Code mean that a Continuing Detention Order (CDO) can only be issued after a prisoner is sentenced, not while they are on remand.44 The Attorney-General’s Department advises that an application for a CDO is ‘complex, time consuming and can take upwards of 12 months to prepare.’45 It is not clear whether the same time constraints apply to an application for an interim CDO. In the case study below, the prisoner had been on remand for almost six years and the grant of an interim control order took 13 days from the date of sentencing and release.

The AFP is particularly concerned at the possibility of early release for convicted terrorist offenders noting the risk this poses to the Australian community.46

The AFP believes this risk is best mitigated through terrorist offenders serving their head sentence, a position consistent with a presumption against parole and bail for offenders of this nature.

In the event that a convicted terrorist offender is released into the community early, circumstances may arise which prevent the AFP being in a position to apply for and have the court consider a control order. In 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.47

The AFP provided a case study of the sentencing of Adam Brookman:

On 23 June 2021, Mr Brookman was sentenced to 6 years and 8 months imprisonment, with a non-parole period of 5 years, after pleading guilty to the charge of performing services in Syria in support or promotion of the commission of an offence against the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). But for his guilty plea, Mr Brookman would have been sentenced to imprisonment for 8 years and 6 months with a non-parole period of 7 years. At the time of sentencing, Mr Brookman was expected to serve an additional 9 months in custody (noting he had been in custody on remand for 5 years and 11 months). It is important to note that the sentencing judge, in her remarks, already considered and accounted for hardship caused by the COVID-19 pandemic.

42. Ibid., pp. 33-34. 43. Ibid., p. 34. 44. AGD, Submission, op. cit., p. 3; Criminal Code Act 1995. 45. Ibid. 46. AFP, Submission, op. cit., p. 2. 47. Ibid.

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On 23 June 2021, the same day Mr Brookman was sentenced, the AFP was advised that Mr Brookman had been granted a total of 342 EMDs pursuant to s 58E of the Corrections Act 1986 (VIC), resulting in a reduction of Mr Brookman’s overall sentence and his release into the community late on the evening of 23 June 2021. The time between sentencing and Mr Brookman’s release was a matter of hours. As a high risk terrorist offender, Mr Brookman was a risk to community safety …

[F]rom the time of his release till 6 July 2021, when an interim control order application was determined by the Federal Court of Australia, there was a short period of time where a control order was not in place against Mr Brookman.48

The case study suggests that the sentencing judge considered and accounted for hardship caused by the COVID-19 pandemic in setting the sentence. However, it is not clear from the AFP submission whether the sentencing judge was advised by the prosecution of the effect of Victorian law and that EMDs would apply to the head sentence (but not the non-parole period) set for Mr Brookman. Had the judge been properly advised of the effect of Victorian law and the need for time to prepare a CDO application, the gap in applying a control order may not have occurred.

The AFP acknowledges that the risk of failing to obtain a control order can be minimised through prior planning by law enforcement and security agencies, however, argues that, by ensuring that terrorist offenders serve their head sentence, the Bill would ensure that ‘sentence lengths and release times are more certain and the full suite of risk management measures can be put in place prior to release’.49

Retrospective application of the Bill Item 11 proposes that the provisions of the Bill apply to federal prisoners who have already accrued EMDs, but not if the prisoner has already completed the sentence due to the application of those remissions and reductions.

The Explanatory Memorandum addressed the issue in the statement of compatibility at page 12:

Importantly, removal of the opportunity to receive remissions, and the retrospective abolition of remissions already granted for those federal offenders still in prison immediately prior to the date of commencement, does not impose a heavier penalty than the one that was applicable at the time the criminal offence was committed. In particular, the Bill does nothing to disturb the sentence fixed by the sentencing court.50

However, the Scrutiny Committee noted:

…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… 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.

Noting the above, the committee requests the Attorney-General's more detailed advice as to:

48. Ibid. 49. Ibid. 50. Explanatory Memorandum, p. 12.

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Crimes Amendment (Remissions of Sentences) Bill 2021 13

• 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.51

In response, the Attorney-General advised the Scrutiny Committee:

The removal of the ability to confer significant sentence discounts in this manner is appropriate. It does not impose any additional punishments on federal offenders, and it does not interfere with the sentence fixed by the court. The measures in the Bill simply restore the sentence that justly set down by the court. These principles have been upheld in other criminal justice contexts.

… Limiting the application of the amendments to remissions that may be granted in the future does not address the risks to community safety posed by the significant reductions in sentences for offenders currently in custody. For this reason, the provisions need to have limited retrospective application.

The 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.52

After considering the Attorney-General’s response, the Scrutiny Committee reiterated its ‘long-standing scrutiny concern’ about retrospective provisions as they challenge ‘a basic of the rule of law that, in general, laws should only operate prospectively’.53 The Committee stated that this is a particular concern where (as is the case with the Bill) will detrimentally affect individuals.54 In conclusion, the Scrutiny Committee stated:

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. As a result, the committee is not satisfied that the minister's response has adequately addressed the committee's scrutiny concerns.55

The Committee drew its concerns to the attention of senators and left consideration of the appropriateness of the measure to the Senate as a whole.56

The Law Council advised the Inquiry into the Bill:

Retrospective laws are generally inconsistent with the rule of law … The Law Council considers the retrospective removal of remission and reduction schemes (including the eradication of a prisoner’s EMD credit) is unjustified and inconsistent with the expectations of prisoners and the purposes of granting EMDs, and contrary to the administration framework in place at the time these prisoners were sentenced … The Law Council is concerned that the proposal to retrospectively erase EMDs will have a significant adverse impact on prisoner mental health.57

VALS noted that not all federal prisoners can be considered a high risk to community safety:

These examples [in the Explanatory Memorandum of ‘terrorists, child sex offenders and drug traffickers’] are used to support the arguments that community safety will be jeopardised should people serving sentences for these offences be released from prison before the end of their original sentence.

51. Scrutiny Committee, Scrutiny digest, 15, 2021, op. cit., pp. 18-19. 52. Scrutiny Committee, Scrutiny digest, 16, 2021, Senate, Canberra, 21 October 2021, p. 82. 53. Ibid., p. 83. 54. Ibid. 55. Ibid. 56. Ibid. 57. LCA, Submission, op. cit., pp. 12-13.

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Crimes Amendment (Remissions of Sentences) Bill 2021 14

None of the examples relate to people who are serving sentences [for] other types of federal offences that would, in fact, indicate a person's early release would be a low risk to community safety…

It is critical to note that people who will be impacted by this legislation will include people who were welfare recipients and understated their income. Using the examples of terrorism, child sex offending and drug trafficking misrepresents the impact of the proposed amendments and does not accurately describe the group of people who are incarcerated for federal offences.58

The Law Council, VALS, CLC Tas and the ALA all opposed application of the Bill to remissions already granted.59

Effect of remissions and lockdown on federal prisoners in Victoria AGD submitted that the deprivations and disruptions due to COVID-19 ‘were similar to those experienced by the Victorian community and other communities around Australia’.60

By contrast, the Law Council and the ALA argued that lockdown has had a serious adverse impact on prisoner’s conditions in detention settings and on prisoners’ families, particularly children.61

The Commissioner for Corrections Victoria told the Inquiry into the Victorian Government's Response to the COVID-19 Pandemic that the COVID-19 response in Victorian prisons had resulted in prisoners experiencing restrictive quarantine regimes which in many instances caused them to be held in their cells for 23-24 hours per day.62

VALS was particularly concerned about the amount of this solitary confinement prisoners were subjected to:

Of particular concern are the intermittent and protracted periods of solitary confinement to which thousands of incarcerated people have been subjected. The UN Mandela Rules define solitary confinement as the “confinement of prisoners for 22 hours or more a day without meaningful human contact,” and define prolonged solitary confinement as solitary confinement for a time period in excess of 15 consecutive days. They state that solitary confinement “shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorisation by a competent authority.” They prohibit the use of solitary confinement for people “with mental or physical disabilities when their conditions would be exacerbated by such measures.” Solitary confinement is a fundamentally harmful practice.63

Different treatment for state and federal offenders in the same prison The AGD pointed out that there is already a difference between the treatment of remissions granted to state and federal prisoners in Victoria:

Currently, section 19AA applies to federal offender sentences by deducting the number of granted [EMDs] from the head sentence (subsections 19AA(1) and (1A)). By contrast, [EMDs] for State offenders apply to reduce both the non-parole period and the head sentence. [EMDs] may only be deducted from

58. VALS, Submission, op. cit., p. 9. 59. See discussion above under the heading ‘Position of major interest groups’. 60. Ibid., p. 3. 61. See discussion above under the heading ‘Position of major interest groups’. 62. Commissioner to Public Accounts and Estimates Committee, Inquiry into the Victorian Government's Response to the COVID-

19 Pandemic, Corrections Victoria, ‘Questions on Notice 1’, Response to Questions on Notice taken by Dr Emma Cassar, Commissioner, p. [2]. 63. VALS, Submission, op. cit., pp. 6-7 (citations removed). For more information see United Nations Office on Drugs and Crime (UNODC), Nelson Mandela Rules, UNODC website.

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Crimes Amendment (Remissions of Sentences) Bill 2021 15

a federal offender’s non-parole period if it was granted as a result of industrial action taken by prison staff (subsection 19AA(4)).64

Several major interest groups have submitted that EMDs are important in maintaining good order in prisons.65 The Commissioner for Corrections Victoria told the Inquiry into the Victorian Government's Response to the COVID-19 Pandemic:

EMDs are a vital part of ensuring compliance with infection prevention and control measures (including mask wearing and social distancing), as EMDs are not granted for prisoners who demonstrate poor behaviour and do not comply with infection prevention measures. This approach has helped maintain a settled prison system despite significant restrictions being introduced for many prisoners.66

ALRC recommendations The Australian Law Reform Commission (ALRC) examined remissions of sentence in Report 103, Same Crime, Same Time: Sentencing of Federal Offenders, April 2006.67 The ALRC recommended:

Federal sentencing legislation should expressly pick up and apply to federal non-parole periods a law of a state or territory that provides for the remission of a non-parole period because of an emergency within the prison or other unforeseen and special circumstances. The same principle should apply to remission of pre-release periods in respect of suspended sentences.68

In summary, the ALRC made the following observations on remissions:

Application of remissions to federal offenders

Automatic or general remissions unrelated to any aspect of a prisoner’s behaviour should not be available to federal offenders. Automatic remissions have been abolished in most jurisdictions and the ALRC is not convinced there is any valid policy reason to re-introduce them …

Stakeholders expressed considerable support for having earned remissions apply to federal offenders; a view the ALRC shared in its 1988 report … It would be impractical to introduce a federal scheme of earned remissions in states and territories that have abolished such schemes, given the relatively small number of federal offenders held within some prisons …

The other major difficulty is that it would create disparity of treatment of state and federal offenders within the same prison. It could be a source of tension in prisons if federal offenders were entitled to substantial earned remissions, but state or territory offenders were not.

Discretionary parole is a more appropriate means of promoting positive prison conduct than is earned remissions … The abolition of automatic parole will provide an incentive for offenders to be of good behaviour in order to increase their prospects of being released when they first become eligible for parole …

…it is noteworthy that in 1998 a formal review of remissions in Western Australia concluded that 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.

64. AGD, Submission, op. cit., p. 2. 65. See discussion above under the heading ‘Position of major interest groups’. 66. Commissioner to Public Accounts and Estimates Committee, Inquiry into the Victorian Government's Response to the COVID-19 Pandemic, Corrections Victoria, ‘Questions on Notice 1’, Response to Questions on Notice taken by Dr Emma Cassar,

Commissioner, p. [2]. 67. Australian Law Reform Commission (ALRC), Same crime, same time: sentencing of federal offenders, Report, 103, ALRC, Canberra, April 2006. 68. Ibid., p. 334, Recommendation 11-6.

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Application of remissions to the non-parole period

Federal sentencing legislation should expressly pick up and apply to federal non-parole periods a law of a state or territory that provides for the remission of a non-parole period because of an emergency within the prison or other unforeseen and special circumstances. The same principle should apply to remission of pre-release periods in respect of suspended sentences.

There appears to be no reason in principle to distinguish between remissions for industrial action (which are currently addressed in Part IB) and remissions for other emergencies where an offender has been of good behaviour while being subjected to deprivation or disruption. It is arbitrary to give a federal offender credit only where such deprivation has arisen because of an industrial dispute.69

Changes to discount for ‘clean street time’ ‘Clean street time’ refers to the period a prisoner spends on parole in compliance with the conditions of their parole. There are some differences between jurisdictions in the way a period of ‘clean street time’ is taken into account in calculating the remaining sentence when a prisoner breaches parole and is returned to prison.

In most jurisdictions (New South Wales, Queensland, South Australia, Western Australia and the Australian Capital Territory) any time spent on parole (until the date of the breach or the date of the parole revocation) is considered ‘clean street time’ and automatically counts towards an offender’s sentence, subject to some limited exceptions. In Tasmania and Victoria, this time is not considered ‘clean street time’ and does not count towards an offender’s sentence, unless directed by the relevant parole authority. In the Northern Territory, this time does not count towards an offender’s sentence, and must be served in prison upon their return to prison.70

Currently, subsection 19AA(2) of the Crimes Act automatically applies the relevant state and territory legislation on ‘clean street time’ to federal offenders. Item 10 inserts proposed subsection 19AW(3A) into the Crimes Act. The provision requires the authority fixing a new non-parole period for a person whose parole has been revoked to ‘have regard to the period of time spent by the person on parole or licence before the parole order or licence was revoked’.

The proposed amendments implement a 2006 recommendation from the ALRC’s Same Crime Same Time: Sentencing of Federal Offenders report by ensuring federal offenders are able to receive credit for ‘clean street time’.71 Proposed subsection 19AW(3A) will remove inconsistencies in treatment of federal offenders resulting from the jurisdiction they are in.

69. Ibid., pp. 333-334 [11.103]-[11.109]. 70. AGD, Submission, op. cit., p. 5. 71. ALRC, Same crime, same time: sentencing of federal offenders, op. cit., p. 608, Recommendation 24-4.

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