Cth Bill for Remissions of Sentences for Federal Offenders Introduced
On 25 August 2021, the Crimes Amendment (Remissions of Sentences) Bill 2021 (Cth) (‘the Bill’) was introduced to the Senate by Minister for Families and Social Services Senator Anne Ruston ('the Minister'). On 26 August, the Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee and is due for report on 14 October 2021.
The Bill seeks to make amendments to the Crimes Act 1914 (Cth) ('the Crimes Act') in regarding the remissions and reductions to federal sentences granted under state and territory laws.
The Bill has yet to pass the Senate.
Purpose of the Bill
The primary purpose of the Bill is to repeal section 19AA of the Crimes Act.
Section 19AA currently enables remissions or reductions of federal sentences to be granted under state or territory laws. Whilst most states and territories no longer allow for the remission of federal sentences, Victoria continues to be the the only jurisdiction with such laws.
In her second reading speech, the Minister further explains:
“The Australian Government's most important responsibility is to keep Australians safe. This Bill supports this by addressing the significant risks to community safety as a result of the high numbers of remissions, known as emergency management days (EMDs), that Victoria has been granting to federal offenders since the beginning of the COVID#19 pandemic...
Under section 19AA of the Crimes Act, the Commonwealth has no discretion about the application of remissions and reductions to federal offenders. This situation is unacceptable, and means federal offenders are not serving the sentences handed down by the courts in recognition of their crimes.
Repealing section 19AA of the Crimes Act through this Bill is necessary to restore respect for the sentences which courts impose on federal offenders, including the careful balance struck by courts between the appropriate expiry of the non-parole period compared to the head sentence.”
Victorian EMDs and COVID-19
Under Victorian legislation, EMDs, remissions on federal sentences, can be granted in various emergency circumstances such as natural disasters or staffing shortages. Unless the EMDs are a result of industrial action by prison staff, the remissions automatically apply to reduce the offender’s sentence in accordance with section 19AA of the Crimes Act. However, in the interest of preventing COVID-19 outbreaks, EMDs have been granted in much higher numbers.
Federal offenders in Victorian prisons were typically granted less than 10 emergency management days (‘EMDs’), prior to the COVID-19 pandemic. However, following restrictions necessary to mitigate the spread of COVID-19 within prisons, EMDs has been on the rise in Victoria.
In the second reading speech, the Minister stated:
“As a result, many 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.”
The Bill's Explanatory Memorandum also comments:
"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."
‘Clean Street Time’ Recognition
The Bill also intends to amend how the Crimes Act deals with ‘clean street time’ recognition granted under state legislation.
In circumstances where offenders’ parole orders are revoked, their time spent on parole, subject to certain conditions, can be considered as contributing to their sentence. This is referred to as 'clean street time' recognition.
The Minister notes in her second reading speech, that this:
“provides an incentive for offenders on parole to comply with their conditions in the community, including participating in rehabilitation programs and engaging with corrections authorities.”
Most states and territories have a form of ‘clean street time’ recognition. Currently, section 19AA(2) of the Crimes Act automatically applies any ‘clean street time’ recognition afforded by state legislation to federal offenders.
The Bill proposes the repeal this subsection. However, the Bill intends to maintain the ability for courts to consider 'clean street time' when dealing for federal offenders for breaches of parole. In her second reading speech, the Minister comments that:
“This ensures federal offenders are subject to a consistent, Australia-wide framework for 'clean street time', which rightly places decision-making in the hands of the court.”
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Crimes Amendment (Remissions of Sentences) Bill 2021 (Cth) and additional explanatory materials as available from TimeBase's LawOne Service