Explanatory Memorandum
(Circulated by authority of the Attorney-General, Senator the Honourable Michaelia Cash)GENERAL OUTLINE
1. 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)
2. 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.
3. 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.
4. 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 subsection 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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)
14. 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 subsequently breached his or her 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 which they remain liable to serve as a result of their breach of parole.
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 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.
16. 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.
17. 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.
FINANCIAL IMPACT
18. 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.