Senate

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable Michaelia Cash)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Crimes Amendment (Remissions of Sentences) Bill 2021

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. This Bill amends the Crimes Act 1914 (Cth) (Crimes Act) to repeal section 19AA, which applies remissions or reductions granted under state or territory laws to federal sentences.

The repeal of subsections 19AA(1), (1A) and (4)

3. Most 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 only jurisdiction with laws providing significant remissions or reductions that are applicable to a federal offender's sentence under these subsections.

4. The repeal of section 19AA of the Crimes Act is necessary in order to address the significant risks to community safety as a result of remissions, known as emergency management days (EMDs), being granted in high numbers to federal offenders under Victorian laws since the beginning of the COVID-19 pandemic.

5. Prior to the COVID-19 pandemic, federal offenders in Victorian prisons were generally being granted less than 10 EMDs during their period of incarceration under the Victorian EMD laws, in recognition of restrictions necessary in various emergency circumstances, like restrictions on out-of-cell time as a result of natural disasters or staffing shortages. These remissions are automatically applied to reduce the federal offender's head sentence as soon as they have been granted, in accordance with subsections 19AA(1) and (1A) of the Crimes Act, unless the EMDs are granted as a result of industrial action by prison officers. If EMDs are granted under the Victorian laws as a result of such industrial action, such remissions are automatically applied to reduce the non-parole period or pre-release period of the federal offender, not the head sentence, in accordance with subsections 19AA(1) and (4) of the Crimes Act.

6. Following the use of restrictions necessary to prevent COVID-19 outbreaks in prisons since the beginning of the pandemic, EMDs have been granted under the Victorian laws to federal offenders in much higher numbers than ever before (the highest so far being 342 days for one federal offender). As a result, federal offenders incarcerated in Victoria, including terrorists, child sex offenders and drug traffickers, are receiving substantial discounts off the sentence expiry date set by the sentencing court.

7. The following case examples demonstrate the high numbers of EMDs that Victoria has granted to some federal offenders since the beginning of the COVID-19 pandemic:

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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.

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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.

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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, consipiring to do an act or acts in preparation for a terrorist act, and/or engaging in a terrorist act.

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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.

8. COVID-19 restrictions are likely to be in place for some time, even with the rollout of COVID-19 vaccinations in prisons. As the COVID-19 pandemic continues, sentence reductions due to EMDs are increasing. The sentence expiry dates for federal offenders incarcerated in Victoria keep changing unpredictably, as EMDs are periodically granted. The situation presents a significant risk to community safety, including by:

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creating uncertainty around release dates for agencies responsible for managing high risk offenders, for example by making it more challenging to make applications for control orders and other post-sentence options, and

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limiting rehabilitation and reintegration options and increasing the risk of reoffending for those granted parole, due to the shorter period available to undertake and complete programs while under the supervision of community corrections.

9. Further, where an offender has been sentenced since the beginning of the COVID-19 pandemic, courts have been taking into account the likely additional hardships and restrictions necessary to prevent COVID-19 outbreaks in prisons, so offenders are already receiving consideration for the impact of the pandemic when being sentenced. The subsequent granting of EMDs could lead to the impacts of COVID-19 being 'double counted' and an offender receiving two discounts from their sentence.

10. Finally, under the existing legislative framework, federal offenders are not being treated the same across Australia. If granted large numbers of EMDs, a federal offender incarcerated in Victoria will serve a significantly lower effective sentence than they would if they were incarcerated in any other jurisdiction.

11. This Bill restores respect for, and certainty surrounding, the sentences that courts impose on federal offenders, including the careful balance struck by courts between the appropriate expiry of the non-parole period or pre-release period compared to the head sentence. The Bill also 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.

12. The Bill achieves this by repealing section 19AA of the Crimes Act, and making consequential amendments to various provisions in Part IB of the Crimes Act that currently reference such remissions or reductions applicable under section 19AA.

13. Importantly, in order to best mitigate against the risks to community safety outlined above, the application provision in the Bill makes it clear that the Bill applies to federal offenders who are serving a sentence in a state or territory prison immediately before the date of commencement. For these federal offenders, this means that any remissions or reductions the federal offender had been granted prior to the date of commencement that have been automatically applied to reduce their non-parole period, pre-release period and/or head sentence under subsections 19AA(1), (1A) and/or (4) are taken to be of no effect.

14. However, the Bill does not apply to federal offenders who have already served their sentence of imprisonment (that is, federal offenders who have already been released from prison) prior to the date of commencement. For these federal offenders, this means that any remissions or reductions the federal offender had been granted that were automatically applied to reduce their non-parole period, pre-release period and/or head sentence under subsections 19AA(1), (1A) and/or (4) are preserved without change, as if the amendments in this Bill had not been made.

The repeal of subsections 19AA(2) and (3)

19. Subsection 19AA(2) of the Crimes Act applies any state or territory laws crediting 'clean street time' in the form of a remission or reduction of a sentence to federal offenders in the relevant jurisdiction in the same way as 'clean street time' would apply to remit or reduce the sentence of a State or Territory offender in the same jurisdiction. 'Clean street time' refers to the period between when an offender is released on parole or licence up to the time their parole order or licence is revoked. Most states and territories have laws providing that such periods of compliance with a parole order prior to revocation of parole are to be taken into account at the time of determining the consequences for an offender who has breached their parole order. Generally, under such state or territory laws, the number of days which the offender complied with their parole order prior to the revocation of that order may be considered as time served on their sentence, effectively reducing the number of days on their outstanding sentence for which they remain liable to serve as a result of their breach of parole.

20. The application of state or territory laws on 'clean street time' under subsection 19AA(2) of the Crimes Act only operates in respect of revocations of a parole order or licence by the Attorney-General under section 19AU of the Crimes Act. Upon revocation by the Attorney-General under section 19AU, the offender is liable to serve that part of the sentence that was outstanding at the time of their release from prison on parole or licence. Under subsection 19AA(2) of the Crimes Act, that period can be reduced by 'clean street time', if the relevant state or territory has laws providing for its offender's sentences to be so remitted or reduced in such circumstances.

21. Most states and territories allow credit for 'clean street time'. Subsection 19AA(3) of the Crimes Act ensures that federal offenders can have the benefit of 'clean street time' in circumstances where their parole order or licence has been revoked by the Attorney-General under section 19AU of the Crimes Act following a breach of their parole order or licence. Subsection 19AA(3) ensures that 'clean street time' will be taken into account where the offender breaches their parole in a state or territory that does not have laws providing for remissions or reductions based on 'clean street time' that would otherwise be applicable in accordance with subsection 19AA(2) of the Crimes Act.

22. The Bill 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. The amendments to section 19AW of the Crimes Act in Item 9 of the Bill ensure that the requirement to take into account 'clean street time' for federal offenders in circumstances where their parole order or licence has been revoked by the Attorney-General under subsection 19AU(1) is retained.

Human rights implications

15. The repeal of subsections 19AA(2) and (3) of the Crimes Act (and the consequential amendments in the Bill to section 19AW of the Crimes Act) do not result in any changes for federal offenders. The amendments to section 19AW in the Bill retain the existing federal policy on 'clean street time' for federal offenders. No human rights are engaged or indirectly engaged through this change. Therefore, there are no human rights implications as a result of these changes.

16. However, the repeal of subsections 19AA(1), (1A) and (4) of the Crimes Act may be perceived to engage, or be said to indirectly engage, the following rights under the International Covenant on Civil and Political Rights [1976] ATS 5 (ICCPR) to which Australia is a State Party:

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the right to freedom from arbitrary detention and the right to liberty of the person (Article 9 of the ICCPR)

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the right to reformation and social rehabilitation in penitentiary systems (Article 10(3) of the ICCPR), and

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the prohibition on the retrospective operation of criminal laws (Article 15 of the ICCPR).

17. The human rights implications of the repeal of subsections 19AA(1), (1A) and (4) of the Crimes Act are set out below.

The right to freedom from arbitrary detention and the right to liberty of the person

18. Article 9(1) of the ICCPR provides that everyone has the right to liberty and security of person, and no-one shall be deprived of their liberty except on such grounds and in accordance with such procedures as established by law.

19. Article 9 regulates, rather than prohibits, detention-it is only 'arbitrary' detention that is prohibited. Arbitrariness includes the elements of inappropriateness, injustice and lack of predictability. Detention is not arbitrary where, in all the circumstances, it is reasonable, necessary and proportionate to achieving a legitimate objective. Limitations on the right to liberty are permissible if in accordance with procedure established by law, and if the limitation is reasonable, necessary and proportionate.

20. The effect of the Bill is that federal offenders will no longer receive remissions or reductions off their federal sentence granted under state or territory laws, including those granted under the Victorian EMD laws, from the date of commencement. Furthermore, the Bill operates to remove any remissions applied to federal sentences under subsections 19AA(1), (1A) and/or (4) of the Crimes Act for federal offenders who are still serving a sentence in a state or territory prison immediately prior to the date of commencement. The Bill does not apply to federal offenders who have already served their sentence of imprisonment (that is, federal offenders who have already been released from a state or territory prison) prior to the date of commencement. These federal offenders will retain any remissions or reductions that were automatically applied to reduce their non-parole period, pre-release period and/or head sentence under subsections 19AA(1), (1A) and/or (4).

21. It may be perceived that the Bill engages or indirectly engages the right to liberty and freedom from arbitrary detention because:

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from the date of commencement, federal offenders will no longer have the opportunity to receive remissions that may be available to prisoners in the state or territory in which they are incarcerated, and

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any federal offenders serving a sentence in a state or territory prison immediately prior to commencement will lose any remissions or reductions they had received and will have to serve the sentence as set down by the sentencing court.

22. The repeal of the opportunity for federal offenders have remissions applied to their sentence does not result in arbitrary detention. While section 19AA of the Crimes Act automatically recognises remissions once they have been granted under state or territory laws, federal offenders cannot assume or expect that they will be granted remissions under state or territory laws. For example, EMDs available under Victorian laws are not a right afforded to prisoners, and prisoners are not guaranteed to be granted EMDs for which they are eligible to be considered. Further, statutes providing for executive release of prisoners may validly change from time to time. ^[1]

23. Similarly, the abolition of remissions applied under subsections 19AA(1), (1A) and/or (4) for those federal offenders still in custody immediately prior to commencement does not result in arbitrary detention. Rather, the Bill 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. The Bill also restores predictability in the calculation of sentences and facilitates appropriate preparations for the release of offenders as a result.

24. However, to any extent that the Bill could be said to engage or indirectly engage the right to liberty and freedom from arbitrary detention, it is consistent with it. The Bill also complies with the requirement in Article 9(1) that deprivation of liberty not occur except in accordance with grounds and procedures prescribed by law.

25. To any extent that the Bill could be said to limit the right to liberty and freedom from arbitrary detention, it is reasonable, given that the Bill ensures that a federal offender will serve the sentence as set down by the sentencing court in accordance with the law and a fair trial. Courts impose federal sentences following valid and lawful arrest and conviction for one or more Commonwealth crimes and as a result of a fair trial in accordance with procedures established by law. Federal offenders who are sentenced to a term of imprisonment suffer deprivation of liberty in accordance with the law, and this Bill does not change this. The sentence imposed by the sentencing court represents a careful balance struck between the expiry of the non-parole period compared to the head sentence.

26. To any extent that the Bill could be said to limit the right to liberty and freedom from arbitrary detention, the Bill is necessary, because it 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. The examples contained in the Overview above of federal offenders who have been granted substantial discounts from their head sentence demonstrate the problems with the current legislative framework. While there are post-sentence options available with regard to high risk terrorist offenders, these options alone are insufficient to address the risks to community safety in circumstances where a terrorist or terrorism-related offender is released earlier than the date that the sentencing court determined to be appropriate. This is particularly the case because sentence expiry dates for federal offenders change unpredictably as EMDs are periodically accrued. This creates uncertainty around release dates for agencies responsible for managing high risk offenders, for example by making it more challenging to make applications for control orders or requiring urgent rather then standard applications to be made to courts in relation to such offenders. Where high numbers of EMDs have been applied to reduce the head sentence of a federal offender who is granted parole, the period that they will serve in the community under parole supervision will be shorter than that set down by the court at sentencing. This puts the community at risk by limiting rehabilitation and reintegration options available to these offenders and increasing the likelihood of recidivism.

27. To any extent that the Bill could be said to limit the right to liberty and freedom from arbitrary detention, it is 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 serious federal offenders. The application provision in the Bill preserves any remissions or reductions that have been granted under state or territory laws and applied to federal sentences prior to the date of commencement, for those federal offenders who have already been released from prison prior to the date of commencement. The Bill will ensure high risk federal offenders who are serving a sentence of imprisonment in a state or territory prison immediately prior to commencement will serve the sentence set down by the sentencing court, preserving the careful balance struck between head sentence expiry and the non-parole period. This will ensure that agencies responsible for managing high-risk offenders have the certainty necessary to prepare for the release of such federal offenders.

28. Therefore, the Bill does not result in arbitrary detention and, to any extent that the Bill could be said to limit the right to liberty and freedom from arbitrary detention, any such limitation is in accordance with procedure established by law, and is reasonable, necessary and proportionate to achieving the legitimate objective of protecting the community from the risks posed as a result of high numbers of remissions being granted by Victoria to federal offenders.

Reformation and social rehabilitation in penitentiary systems

29. Article 10(3) of the ICCPR provides that "[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation".

30. Currently, federal offenders incarcerated in Victoria are being granted significant discounts off their head sentence due to the application of Victorian laws in accordance with section 19AA of the Crimes Act. As the COVID-19 pandemic continues, EMDs continue to be granted to, and periodically accrued by, many federal offenders in Victoria, causing uncertainty regarding release and sentence expiry dates for these offenders.

31. For federal offenders who are serving a fixed term of imprisonment (with no non-parole period), the automatic application of high numbers of EMDs being granted by Victoria during the COVID-19 pandemic has the effect of shortening, in an unpredictable manner, the period of time during which offenders are in custody and can access custodial-based rehabilitation and treatment programs. Uncertainty around an offender's release date can impact on the rehabilitation opportunities available to offenders in custody. Significant discounts off sentence expiry dates may even mean that an offender becomes ineligible to commence an offence specific custodial-based treatment program, for example, because there is a minimum amount of time required to complete the program, and the offender will be released before they can complete it. In addition, where significant numbers of EMDs have been granted by Victoria to federal offenders for whom the court set a non-parole period, the existing framework has the effect of shortening the period of time that the offender, if granted parole, will have available to them to undertake the necessary rehabilitation and reintegration programs in the community under parole supervision. This limits the rehabilitation and reintegration opportunities for these federal offenders and poses a risk to community safety, by increasing the risk of reoffending.

32. The Bill promotes the reformation and social rehabilitation of federal offenders by restoring certainty around release dates and sentence expiry dates for federal offenders, incarcerated in Victoria. By restoring certainty around these dates, the agencies responsible for managing the release of federal offenders will have certainty about whether offenders will have the necessary time to complete programs in custody or in the community, and can refer offenders to such programs accordingly. Federal offenders incarcerated in Victoria will benefit from the opportunity to complete custodial and community based programs that they otherwise might not have had the opportunity to do due to the operation of the existing framework.

Prohibition on the retrospective operation of criminal laws

33. Article 15 of the ICCPR prohibits the imposition of 'a heavier penalty ... than the one that was applicable at the time when the criminal offence was committed'.

34. It may be perceived that the Bill infringes upon this right by removing remissions that have already been automatically applied under section 19AA to federal offenders who are serving a sentence in a state or territory prison immediately before the date of commencement. It may also be perceived that the Bill infringes upon the right in Article 15 as the Bill may be said to result in federal offenders incarcerated in Victoria serving a longer sentence of imprisonment than they may have done under the existing provisions of the Crimes Act. However, this is not the case.

35. The High Court has held that once a prisoner has been sentenced, the responsibility for the future of that prisoner passes to the executive branch. ^[2] Remissions or reductions are not part of the sentencing determination made by the court, but are an executive function derived from the Royal prerogative of mercy or clemency. ^[3] EMDs are not a right afforded to prisoners, and prisoners are not guaranteed to be granted EMDs for which they are eligible to be considered. While section 19AA of the Crimes Act currently automatically recognises remissions such as EMDs once they have been granted under state or territory laws, federal offenders cannot assume or expect that they will be granted remissions under state or territory laws, or even that such laws will continue to exist or be applied in their favour.

36. Importantly, removal of the opportunity to receive remissions, and the restrospective 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. Rather, the Bill ensures that federal offenders serve the sentence as set down by the sentencing court. Restoring the sentence as set down by the sentencing court does not make the nominal sentence 'more punitive or burdensome to liberty'. ^[4]

37. In short, the Bill is not inconsistent with the prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR, as the Bill does not impose 'a heavier penalty ... than the one that was applicable at the time when the criminal offence was committed'.

Conclusion

38. To the extent that the Bill engages with the rights set out above, the Bill is compatible with the human rights set out above. This is because to the extent that there are any limitations to any of the rights, those limitations are reasonable, necessary and proportionate in achieving the legitmate objective of addressing the significant risks to community safety as a result of remissions being granted to federal offenders under Victorian laws.