Ben Morton (Tangney, Liberal Party, Minister Assisting the Prime Minister and Cabinet) Share this | Link to this | Hansard source

I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

The Crimes Amendment (Remissions of Sentences) Bill 2021 repeals section 19AA of the Crimes Act 1914, which automatically applies remissions or reductions granted under state or territory laws to federal sentences.

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.

Most states and territories have abolished remissions. Victoria is the only jurisdiction with laws providing remissions or reductions that are resulting in significant discounts for federal offenders under section 19AA of the Crimes Act.

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. Currently, if offenders are found suitable for release on parole after EMDs have been applied to reduce their head sentence, their rehabilitation and reintegration options may be limited or less effective during their shorter parole period, increasing the risk of reoffending. The removal of the unpredictable application of EMDs is critical to ensure community safety.

Prior to the COVID-19 pandemic, Victoria were generally granting fewer than 10 EMDs per federal prisoner for restrictions in circumstances like natural disasters and staffing shortages. But, since the beginning of the COVID-19 pandemic, Victoria has been handing out much higher numbers of EMDs to federal offenders in their prisons.

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 release of high-risk federal offender Adam Brookman is an example of how problematic the application of EMDs can be. In June 2021, following his guilty plea, the Supreme Court of Victoria sentenced Mr Brookman to six years and eight months imprisonment for an offence against the Crimes (Foreign Incursions and Recruitment) Act 1978. Specifically he undertook weapons training, reconnaissance and guard duty, and provided medical services in support of groups engaged in hostile activity in Syria. Despite the court fixing a head sentence that did not expire for a further nine months, Mr Brookman was released on the date of his sentencing because Victoria had granted him more than 340 days off his sentence during the period he was on remand.

There are more people charged with terrorism offences on remand in Victoria, and, as the pandemic continues, they are accruing hundreds of days off their sentences in the event they are convicted. In the interim, our agencies are using the options available to mitigate against the risks posed by the early release of high-risk federal offenders like Mr Brookman, including control orders. Even this has become problematic under the current framework, as sentence expiry dates for terrorists incarcerated in Victoria keep changing unpredictably as EMDs are periodically accrued. This bill will put an end to this unacceptable situation.

Fundamentally, the current framework compromises community safety, as it allows dangerous offenders to be released much earlier than the date set by the sentencing court. This includes, for example, a high-risk child-sex offender with an extensive prior criminal history in three states and a history of breaching multiple community based orders. Despite being sentenced to spend three years and one month in prison for his despicable crimes, the high-risk child-sex offender's sentence expired in August 2021 after Victoria granted him more than 300 days off his sentence. The bill will prevent circumstances such as these occurring and will ensure that federal offenders like this serve the sentence that is handed down by the court.

Further, this bill is necessary to ensure that federal offenders are being treated more consistently across Australia. Under the existing laws, a federal offender incarcerated in Victoria may serve a significantly lower sentence than they would if they served their sentence in any other jurisdiction. In addition, where an offender has been sentenced since the beginning of the COVID-19 pandemic, courts have taken into account additional hardships and restrictions imposed on prisoners, so offenders are already receiving consideration of the impact of COVID-19 when being sentenced. The subsequent granting of EMDs by Victoria can lead to the impacts of COVID-19 being 'double-counted', with offenders effectively receiving two discounts off their sentence.

In the interests of community safety, remissions and reductions applied by states and territories before commencement of the bill will be taken to have no effect. This does not apply to anyone released from prison prior to commencement of the bill. This ensures that any offenders who are still in prison at the time the bill commences will not receive hundreds of days off their sentences and will instead serve the sentence that the court considered was appropriate for them.

Conclusion

This bill addresses the significant risks to community safety as a result of the discounts that Victoria is handing out to its prisoners during the pandemic. The bill 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.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

Labor supports the Crimes Amendment (Remissions of Sentences) Bill 2021. The bill will repeal section 19AA of the Crimes Act, which applies remissions granted under state or territory laws to head sentences for Commonwealth offences. A remission is a reduction in the term of a prison sentence. The upshot of section 19AA of the Crimes Act is that any such reduction to a prisoner's sentence under a state or territory law is applied automatically to the head sentence of an individual who has been convicted of Commonwealth offences. The laws of states and territories vary in this area, which means that individuals who are handed the same sentences in different states may ultimately end up serving a different term of imprisonment, depending on the state or territory in which they are sentenced.

The other aspect of section 19AA of the Crimes Act, subsections 19AA(2) and (3), would also be repealed. Subsection 19AA(2) applies any state or territory law crediting what is known as 'clean street time' as a reduction of a federal offender's sentence in the same way as clean street time would apply to reduce the sentence of a state or territory offender in the same jurisdiction. Subsection 19AA(3) ensures that clean street time is taken into account where an offender breaches their parole in a state or territory that does not provide for reductions in sentences based on clean street time. The bill would replace subsections 19AA(2) and (3) with a new subsection in a different part of the Crimes Act. While courts could still consider clean street time when dealing with federal offenders who have breached their parole conditions, state and territory laws in relation to clean street time would no longer apply automatically to federal offenders.

This bill was the subject of an inquiry by the Senate Legal and Constitutional Affairs Legislation Committee. The primary concern raised by submitters about the bill was that the measures in the bill would apply retrospectively, with the effect that reductions in sentences that had already been applied would be removed by the bill. In response to that concern, the Attorney-General's Department submitted:

Remissions and reductions from sentences are not an entitlement, and it is not unreasonable to expect that changes may be made from time to time to discretionary benefits such as these.

It also noted that the changes in the bill would not impose any additional punishments or change the sentence imposed by the sentencing court.

Labor understands and takes very seriously the concerns raised by submitters about this aspect of the bill. However, on balance, we do not think those concerns outweigh the clear advantages associated with ensuring greater certainty and consistency when it comes to the length of federal sentences and the interests of community safety. I commend the bill to the House.

Question agreed to.

Bill read a second time.