Senate

Explanatory Memorandum

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

NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

1. This clause provides for the short title of the Act to be the Crimes Amendment (Remissions of Sentences) Act 2021.

Clause 2 - Commencement

2. This clause provides for the commencement of each provision in the Bill, as set out in the table. Item 1 in the table provides that the whole of the Act will commence on the day after the Act receives the Royal Assent.

Clause 3 - Schedules

3. This clause provides that the legislation that is specified in a Schedule is amended or repealed as set out in that Schedule and that any other item in the Schedule has effect according to its terms.

Schedule 1 - Amendments

Crimes Act 1914

Terminology

4. Part IB of the Crimes Act 1914 (Cth) (Crimes Act) provides for the sentencing, imprisonment and release of federal offenders. Federal offenders are persons serving a federal sentence for one or more Commonwealth crimes. Federal offenders serve their sentences in state or territory prisons.

5. Remissions or reductions in the context of this Bill refers to state or territory laws which provide for the reduction of a sentence, other than by the court at sentencing or by the executive through the exercise of the Royal Prerogative of Mercy. Examples of such state or territory laws relevant to this Bill include Victoria's emergency management days as referenced in the General Outline above, as well as laws in several states and territories which allow for sentence reductions based on 'clean street time'.

6. '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. Several states and territories allow such periods of compliance with a parole order prior to revocation of parole to be taken into account at the time of determining the consequences for an offender who has breached their parole order. For example, in some states or territories, 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 the outstanding sentence for which they remain liable to serve as a result of their breach of parole.

Item 1 - Subsection 16(1) (subparagraph (b)(i) of the definition of licence period )

7. Section 16 of the Crimes Act sets out the definitions used in Part IB of the Crimes Act. This includes a definition of licence period , which is defined to mean, for a person who is released on licence for a federal sentence, the period starting on the day of release on licence and ending:

(a)

if a recognizance release order has been made for the federal sentence-at the end of the day before the person is eligible for release in accordance with the recognizance release order; and

(b)

in any other case:

(i)

at the end of the last day of any federal sentence that is, on the day of the release, being served or to be served (after deducting any remission or reduction that is applicable); or

(ii)

if the person has been given a federal life sentence-at the end of the day specified in the licence as the day on which the licence period ends.

8. Item 1 makes a consequential amendment to remove the words '(after deducting any remission or reduction that is applicable)' from the definition of licence period to reflect the repeal of section 19AA in Item 2.

9. Due to the repeal of section 19AA of the Crimes Act, subparagraph (b)(i) of the definition of licence period requires amendment to remove the reference to applicable remissions or reductions being deducted from the licence period. Such remissions or reductions will no longer apply once section 19AA has been repealed by Item 2.

Item 2 - Section 19AA

10. Section 19AA of the Crimes Act provides for the application of remissions or reductions provided for under state or territory laws to federal sentences.

11. Subsection 19AA(1) applies remissions or reductions granted under state or territory laws to federal sentences. This includes remissions known as emergency management days under Victorian laws referenced in the Outline above. The Commonwealth has no discretion, and the remissions are deducted from the federal offender's head sentence (or, in limited circumstances, from the non-parole period or pre-release period) as soon as they have been granted under a state or territory law.

12. The limited circumstances in which remissions are deducted from the non-parole period (or pre-release period in the case of a federal offender serving a sentence that does not exceed 3 years) are set out in subsection 19AA(1A) and subsection 19AA(4). Subsection 19AA(1A) provides that the law does not remit or reduce the non-parole period or pre-release period in respect of the federal sentence, except as provided for by subsection 19AA(4). Subsection 19AA(4) provides that a law of a State or Territory that provides for the remission or reduction, by reason of industrial action taken by prison warders, of the non-parole period of a State or Territory sentence applies in the same way to the remission or reduction of a federal non-parole period or pre-release period to be served in a prison in that State or Territory. The remissions known as emergency management days under Victorian laws referenced in the Outline above are a form of remissions applicable to federal sentences under subsection 19AA(4), in circumstances where signficant deprivation or disruption to the prisoner occurred as a result of industrial action by prison officers. In these circumstances, any remissions granted by Victoria under its emergency management days laws to a federal offender would be automatically applied to reduce the federal offender's non-parole period or pre-release period.

13. Subsection 19AA(2) of the Crimes Act provides that where a law of a State or Territory provides that a person is to be taken to be serving a State or Territory sentence during the period from the time of release under a parole order or licence until the parole order or licence is revoked, the law:

(a)

is, for the purposes of subsection 19AA(1), to be taken to be providing for the remission or reduction of sentences; and

(b)

applies to any calculation of the part of a federal sentence remaining to be served at the time of a federal offender's release under a federal parole order or licence as if the sentence were a State or Territory sentence.

14. In effect, subsection 19AA(2) of the Crimes Act applies any state or territory laws crediting 'clean street time' to federal offenders in the relevant jurisdiction in the same way as 'clean street time' would apply to 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.

15. 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 made by the Attorney-General under section 19AU of the Crimes Act. Subsection 19AU(1) provides that the Attorney-General may, in writing, revoke a parole order or licence at any time before the end of the parole period if:

•

the offender has, during that period, failed to comply with a condition of the parole order or licence, or

•

there are reasonable grounds for suspecting that the offender has, during that period, failed to comply.

16. Upon revocation of a parole order or licence by the Attorney-General under section 19AU of the Crimes Act, the person is liable to serve that part of the sentence that was outstanding at the time of their release from prison. 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 reduced in such circumstances.

17. However, not all states and territories allow credit for 'clean street time'. For this reason, subsection 19AA(3) of the Crimes Act provides that if a prescribed authority is fixing a non-parole period under section 19AW in respect of a federal offender:

(a)

who is released on parole or licence; and

(b)

whose parole order or licence has subsequently been revoked under section 19AU; and

(c)

who does not get the benefit of subsection 19AA(2) in calculating the part of any federal sentence of imprisonment remaining to be served at the time of release;

the prescribed authority must have regard to the period of time spent by the person on parole or licence before that parole order or licence was revoked.

18. Subsection 19AA(3) 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 and the offender has breached their parole order or licence in a state or territory that does not have laws providing for reductions based on 'clean street time' that would otherwise be applicable in accordance with subsection 19AA(2) of the Crimes Act.

19. Item 2 repeals section 19AA of the Crimes Act. The effect of this item is to end the application of remissions and reductions provided for under state and territory laws to federal sentences. Federal offenders will no longer receive any remissions granted under a state or territory law from the date of commencement. This includes the remissions applicable under subsections 19AA(1), (1A) and (4) of the Crimes Act (such as Victoria's emergency management days), as well as the 'clean street time' remissions applicable under subsection 19AA(2).

20. Further, in accordance with Item 10 of the Bill, any remissions or reductions that have been applied to a federal sentence in accordance with subsection 19AA(1) (but not of a kind applicable under subsection 19AA(2)), such as emergency management days under Victorian laws, are taken to be of no effect, if the federal offender is still serving their sentence in a state or territory prison immediately prior to commencement. Item 2 and Item 10 ensure that federal offenders will serve the sentence as set down by the sentencing court, regardless of the state or territory in which they are imprisoned.

21. 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 (see Items 8 and 9 below).

Item 3 - Paragraph 19AB(3)(b)

22. Section 19AB of the Crimes Act sets out the requirements for when a court must fix a non-parole period, and when a court may decline to fix a non-parole period. Paragraph 19AB(3)(b) allows a court to decine to fix a non-parole period where the person is expected to be serving a State or Territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences, as reduced by any remissions or reductions under section 19AA.

23. Item 3 is a consequential amendment to remove the words 'as reduced by any remissions or reductions under section 19AA' from paragraph 19AB(3)(b) to reflect the repeal of section 19AA in Item 2.

24. Due to the repeal of section 19AA of the Crimes Act, paragraph 19AB(3)(b) requires amendment to remove the reference to the end of a federal sentence being reduced by any remissions or reductions under section 19AA. Such remissions or reductions will no longer apply once section 19AA has been repealed by Item 2.

Item 4 - Paragraph 19AC(4)(b)

25. Section 19AC of the Crimes Act sets out the requirements for when a court must make a recognizance release order, and when a court may decline to make a recognizance release order. Paragraph 19AC(4)(b) allows a court to decline to make a recognizance release order where the person is expected to be serving a State or Territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences, as reduced by any remissions or reductions under section 19AA.

26. Item 4 is a consequential amendment to remove the words 'as reduced by any remissions or reductions under section 19AA' from paragraph 19AC(4)(b) to reflect the repeal of section 19AA in Item 2.

27. Due to the repeal of section 19AA of the Crimes Act, paragraph 19AC(4)(b) requires amendment to remove the reference to the end of a federal sentence being reduced by any remissions or reductions under section 19AA. Such remissions or reductions will no longer apply once section 19AA has been repealed by Item 2.

Item 5 - Section 19AF (heading)

28. Section 19AF provides that the fixing of non-parole periods or pre-release periods are not to exceed the end of the sentence. The heading to section 19AF is 'Non-parole period or pre-release periods not to exceed remitted sentence'.

29. This item is a consequential amendment to Item 2 and Item 6. Item 2 amends the Crimes Act to repeal section 19AA such that remissions or reductions provided under state or territory laws will no longer be applied to federal sentences. Item 6 amends subsection 19AF(1) to remove reference to the end of a federal sentence as reduced by any remissions or reductions under section 19AA.

30. Consequential to these amendments, the heading of section 19AF requires amendment to remove the word 'remitted'.

Item 6 - Subsection 19AF(1)

31. Subsection 19AF(1) of the Crimes Act provides that where a court fixes a non-parole period or makes a recognizance release order, the non-parole period or pre-release period must end not later than the end of the sentence, or of the last to be served of the sentences, as reduced by any remission or reductions under section 19AA of the Crimes Act.

32. Item 6 is a consequential amendment to remove the words 'as reduced by any remissions or reductions under section 19AA' from subsection 19AF(1) to reflect the repeal of section 19AA in Item 2.

33. Due to the repeal of section 19AA of the Crimes Act, subsection 19AF(1) requires amendment to remove the reference to end of a sentence being reduced by any remissions or reductions under section 19AA. Such remissions or reductions will no longer apply once section 19AA has been repealed by Item 2.

Item 7 - Paragraph 19AMA(3)(a)

34. Section 19AMA sets out when a federal offender's parole period starts and when it ends. Paragraph 19AMA(3)(a) provides that a person's parole period ends at the end of the last day of any federal sentence that is, on the day of the release, being served or to be served after deducting any remission or reduction that is applicable.

35. Item 7 is a consequential amendment to remove the words '(after deducting any remission or reduction that is applicable)' from paragraph 19AMA(3)(a) to reflect the repeal of section 19AA in Item 2.

36. Due to the repeal of section 19AA of the Crimes Act, paragraph 19AMA(3)(a) requires amendment to remove the reference to the end of a federal sentence being reduced by any remissions or reductions that are applicable. Such remissions or reductions will no longer apply once section 19AA has been repealed by Item 2.

Item 8 - Paragraph 19AR(4)(b)

37. Section 19AR of the Crimes Act provides for a court to fix a new non-parole period where a parole order is taken to be revoked under section 19AQ (for example, when a parole order is taken to be automatically revoked when a further sentence is imposed following the commission of an offence by the offender during their parole period). Paragraph 19AR(4)(b) of the Crimes Act provides that a court may decline to fix a non-parole period if the offender is expected to be serving a State or Territory sentence on the day after the end of the federal sentence or the last to be served of the federal sentences, as reduced by any remissions or reductions under section 19AA of the Crimes Act.

38. Item 8 is a consequential amendment to remove the words 'as reduced by any remissions or reductions under section 19AA' from paragraph 19AR(4)(b) to reflect the repeal of section 19AA in Item 2.

39. Due to the repeal of section 19AA of the Crimes Act, paragraph 19AR(4)(b) requires amendment to remove the reference to end of a sentence being reduced by any remissions or reductions under section 19AA. Such remissions or reductions will no longer apply once section 19AA has been repealed by Item 2.

Item 9 - Paragraph 19AW(1)(f)

40. Section 19AW of the Crimes Act details the procedure relating to the issuing of a warrant of detention in relation to an offender whose parole order or licence has been revoked by the Attorney-General with notice under section 19AU. At a section 19AW hearing, the prescribed authority is not resentencing an offender in the same way that a court would sentence a person for their initial offence, but rather is determining the consequences for the offender's breach of parole, namely whether:

•

the offender will serve the remainder of their outstanding sentence in prison, or

•

to give the offender another opportunity to be released into the community by setting a new non-parole period resulting in the offender serving a portion of the remaining sentence in custody but then becoming eligible to be re-released on parole.

41. At the section19AW hearing, in accordance with paragraphs 19AW(1)(d), (e) and (f), the prescribed authority must issue a warrant, in the prescribed form:

•

authorising any constable to take the person to a specified prison in the State or Territory in which the person was arrested following the revocation of the parole order or licence by the Attorney-General with notice under section 19AU (paragraph 19AW(1)(d))

•

directing that the person be detained in prison in that State or Territory to undergo imprisonment for the unserved part of the sentence, or of each sentence, of imprisonment (in this section called the outstanding sentence or sentences ) that the person was serving or had yet to serve at the time of his or her release (paragraph 19AW(1)(e)), and

•

subject to subsection 19AW(3), fixing a non-parole period in respect of the outstanding sentence or sentences (paragraph 19AW(1)(d)).

42. Under subsection 19AW(3) of the Crimes Act, the prescribed authority is not required to fix a non-parole period under paragraph 19AW(1)(f) of the Crimes Act if it considers it inappropriate to do so because of the serious nature of the breach of parole conditions or where the outstanding sentence is 3 months or less.

43. Item 9 is a consequential amendment to omit 'subsection (3)' and substitute 'subsections (3) and (3A)' to reflect the insertion of new subsection 19AW(3A).

44. Paragraph 19AW(1)(f) requires amendment to reflect the effect of the amendment to section 19AW at Item 9 of Bill, to retain the effect of subsection 19AA(3) once that subsection is repealed by Item 2.

Item 10 - After subsection 19AW(3)

The existing arrangements under subsections 19AA(2) and (3)

45. Subsection 19AA(2) of the Crimes Act provides that where a law of a State or Territory provides that a person is to be taken to be serving a State or Territory sentence during the period from the time of release under a parole order or licence until the parole order or licence is revoked, the law:

(a)

is, for the purposes of subsection 19AA(1), to be taken to be providing for the remission or reduction of sentences; and

(b)

applies to any calculation of the part of a federal sentence remaining to be served at the time of a federal offender's release under a federal parole order or licence as if the sentence were a State or Territory sentence.

46. In effect, subsection 19AA(2) of the Crimes Act applies any state or territory laws crediting 'clean street time' to federal offenders in the relevant jurisdiction in the same way as 'clean street time' would apply to the sentence of a State or Territory offender in the same jurisdiction.

47. '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.

48. The application of state or territory laws on 'clean street time' only operates in respect of revocations made by the Attorney-General under section 19AU of the Crimes Act. Subsection 19AU(1) provides that the Attorney-General may, in writing, revoke a parole order or licence at any time before the end of the parole period if:

•

the offender has, during that period, failed to comply with a condition of the parole order or licence, or

•

there are reasonable grounds for suspecting that the offender has, during that period, failed to comply.

49. Upon revocation of a parole order or licence by the Attorney-General under section 19AU of the Crimes Act, the person is liable to serve that part of the sentence that was outstanding at the time of their release from prison. 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 reduced in such circumstances.

50. However, not all states and territories allow credit for 'clean street time'. For this reason, subsection 19AA(3) of the Crimes Act provides that if a prescribed authority is fixing a non-parole period under section 19AW in respect of a federal offender:

(a)

who is released on parole or licence; and

(b)

whose parole order or licence has subsequently been revoked under section 19AU; and

(c)

who does not get the benefit of subsection 19AA(2) in calculating the part of any federal sentence of imprisonment remaining to be served at the time of release;

the prescribed authority must have regard to the period of time spent by the person on parole or licence before that parole order or licence was revoked.

51. Therefore subsection 19AA(3) 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 and the offender has breached their parole order or licence in a state or territory that does not have laws providing for reductions based on 'clean street time' that would otherwise be applicable in accordance with subsection 19AA(2) of the Crimes Act.

How subsections 19AA(2) and (3) interact with section 19AW

52. The situation where 'clean street time' - either under subsection 19AA(2) or subsection 19AA(3) - is to be taken into account, is at the section 19AW hearing. Section 19AW of the Crimes Act details the procedure relating to the issuing of a warrant of detention in relation to a person whose parole order or licence has been revoked by the Attorney-General with notice under section 19AU.

53. At a section 19AW hearing, the prescribed authority is not resentencing an offender in the same way that a court would sentence a person for their initial offence, but rather determining whether:

•

the offender will serve the remainder of their outstanding sentence in prison, or

•

to give the offender another opportunity to be released into the community by setting a new non-parole period resulting in the offender serving a portion of the remaining sentence in custody but then becoming eligible to be re-released on parole.

54. At the section 19AW hearing, in accordance with paragraphs 19AW(1)(d), (e) and (f), the prescribed authority must issue a warrant:

•

authorising any constable to take the person to a specified prison in the State or Territory in which the person was arrested following the revocation of the parole order or licence by the Attorney-General with notice under section 19AU

•

directing that the person be detained in prison in that State or Territory to undergo imprisonment for the unserved part of the sentence, or of each sentence, of imprisonment that the person was serving or had yet to serve at the time of their release, and

•

subject to subsection 19AW(3), fixing a non-parole period in respect of the outstanding sentence or sentences.

55. Under subsection 19AW(3) of the Crimes Act, the prescribed authority is not required to fix a non-parole period under paragraph 19AW(1)(f) of the Crimes Act if it considers it inappropriate to do so because of the serious nature of the breach of parole conditions or where the outstanding sentence is 3 months or less. In accordance with subsection 19AW(4), the prescribed authority must specify in the warrant of detention the particulars of the unserved part of each outstanding sentence and, if a non-parole period is fixed, the particulars of that period. In order to specify these particulars, the prescribed authority will take into account any 'clean street time' in accordance with either subsection 19AA(2) or (3).

Why the repeal of subsections 19AA(2) and (3) necessitates amendments to section 19AW

56. Item 2 of the Bill repeals section 19AA and eliminates inconsistency in the treatment of federal offenders and their sentences as a result of the various state or territory laws providing for remissions or reductions of sentences. In the absence of the application of remissions and reductions provided for under state and territory laws to federal sentences as a result of Item 2, it is more appropriate that the federal policy for 'clean street time' is set out in the section of the Crimes Act to which it is relevant.

57. As set out above, the policy intent of subsections 19AA(2) and (3) is to ensure that federal offenders can have 'clean street time' recognised in circumstances where they have breached their parole order or licence and the order or licence has been revoked by the Attorney-General under section 19AU of the Crimes Act. The section 19AW hearing is the point at which 'clean street time' is taken into account. Therefore it is appropriate to amend section 19AW in order to retain the federal policy on 'clean street time'.

What the new provision does

58. Item 10 introduces the requirement that, before fixing a non-parole period under paragraph 19AW(1)(f) of the Crimes Act in respect of the outstanding sentence or sentences, the prescribed authority must have regard to the period of time spent by the person on parole or licence before the parole order or licence was revoked under subsection 19AU(1). As set out above, the period of time spent by the person on parole or licence before the parole order or licence was revoked is what is known as 'clean street time'.

59. The effect of Item 10 is to retain the intent behind existing subsections 19AA(2) and 19AA(3) of the Crimes Act to require 'clean street time' to be applied to federal offenders in circumstances where their parole order or licence has been revoked by the Attorney-General under subsection 19AU(1), but without requiring the application of state and territory laws that may be in place from time to time. Item 9 ensures that the prescribed authority must have regard to 'clean street time' at the time of determining the consequences for a federal offender following revocation of a federal offender's parole order or licence, regardless of the state or territory in which they have breached their parole order or licence.

Item 11 - Application provision

60. Item 11 provides for the application of the amendments in the Bill following the commencement of the Bill on Royal Assent.

61. Item 11 provides that the item applies if, immediately before the commencement of the item (on Royal Assent)

•

a person had served, or was serving, a federal sentence in a prison of a state or territory

•

a law of the state or territory provides, or provided, for the remission or reduction of state or territory sentences being served in a prison of the state or territory (referred to below as a 'state or territory remission law'), and

•

as a result of the state or territory remission law and subsection 19AA(1) of the Crimes Act 1914 (as in force immediately before the commencement of this item) there was a remission or reduction (the pre-commencement remission or reduction ) of the federal sentence.

62. Subsection (2) of item 11 applies where a federal offender had already served his or her sentence prior to the commencement of the Bill upon Royal Assent. Where a federal offender has served their federal sentence before the date of commencement, the existing provisions of Part IB of the Crimes Act as in place immediately before commencement of the amendments in Schedule 1 of the Bill will apply to recognise the application of remissions under section 19AA of the Crimes Act, including EMDs granted under Victorian laws. This means remissions applied to any federal offender who has served their federal sentence will continue to be recognised.

63. Subsection (3) of item 11 applies where a federal offender is still serving his or her sentence of imprisonment at the time of commencement of the Bill upon Royal Assent and relates to the application of state and territory laws dealing with 'clean street time' (covered by subsection 19AA(2)). Where a federal offender who is serving a federal sentence has had remissions or reductions recognised under subsection 19AA(2), these remissions or reductions will still be recognised. This means that any federal offender who is serving a sentence who has had 'clean street time' recognised under subsection 19AA(2) will continue to have that time recognised.

64. Subsection (4) of item 11 provides that, where a federal offender is serving a federal sentence in a prison of a state or territory, any remissions or reductions granted before the commencement of the amendments in Schedule 1 of the Bill will no longer apply. This means that any federal offender who is in custody serving a sentence upon the commencement of the amendments will no longer have EMDs applied to their sentence. This means any remissions or reductions (including EMDs) that have been granted to a federal offender will not be recognised in relation to their federal sentence.