Crimes Amendment (Remissions of Sentences) Bill 2021 [2021] AUSStaCSBSD 205 (16 September 2021)

• Crimes Amendment (Remissions of Sentences) Bill 2021
• Retrospective application
• Personal rights and liberties37

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Crimes Amendment (Remissions of Sentences) Bill 2021

Purpose	This bill seeks to amend the Crimes Act 1914 (Cth) to repeal section 19AA, which applies remissions or reductions granted under state or territory laws to federal sentences.
Portfolio	Attorney-General
Introduced	Senate on 25 August 2021

Retrospective application
Personal rights and liberties^[37]

1.53 Section 19AA of the Crimes Act 1914 currently provides that where a state or territory law provides for the remission or reduction of state or territory prison sentences, this applies also to the remission or reduction of a federal sentence for prisoners in that state or territory. Remissions or reductions are usually granted in recognition of restrictions placed on prisoners that are necessary in various emergency circumstances, such-as restrictions on out-of-cell time as a result of natural disasters or staffing shortages. Generally, these remissions are automatically applied to reduce the federal offender's head sentence as soon as they have been granted.^[38]

1.54 Victoria is currently the only jurisdiction with laws providing significant remissions or reductions that are applicable to federal offenders' sentences. In Victoria these remissions are known as emergency management days (EMDs).

1.55 This bill seeks to repeal section 19AA of the Crimes Act 1914 so that it would no longer apply reductions or remissions in sentences granted to prisoners serving periods of imprisonment for federal offences.^[39] The bill would apply to federal offenders who are serving a sentence in a state or territory prison immediately before the date of commencement, meaning that any remissions or reductions they had already been granted is taken to be of no effect.^[40] It does not apply to any federal offender already released from prison.

1.56 The committee has a long-standing scrutiny concern about provisions that have the effect of applying retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals.

1.57 Generally, where proposed legislation will have a retrospective effect the committee expects the explanatory materials should set out the reasons why retrospectivity is sought, and whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected. In this instance, the statement of compatibility states:

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.
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. 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. 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.
Importantly, removal of the opportunity to receive remissions, and the retrospective 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'.^[41]

1.58 While acknowledging the explanation in the statement of compatibility, the committee notes that the effect of the bill is to deprive federal prisoners of a benefit which has previously accrued under the state legislation setting up the EMDs scheme and which has been automatically applied to their sentence under existing section 19AA of the Crimes Act 1914. The committee therefore considers that this is different to a parole scheme where there has been a change in policy before a prisoner comes up on parole, as in this case, the effect of the change is to frustrate reasonable expectations a prisoner might have in relation to EMDs which have accrued and been applied automatically on the basis of having endured tougher conditions in prison than expected due to the COVID-19 pandemic. While the committee acknowledges the policy intention behind this amendment, from a scrutiny perspective, the committee considers that where reasonable expectations are undermined in cases like this there is a risk that those affected and the public at large will perceive that the law is being applied arbitrarily.

1.59 Noting the above, the committee requests the Attorney-General's more detailed advice as to:

· why it is considered necessary and appropriate to, in effect, retrospectively deprive prisoners of already accrued remission days; and

· whether the bill can be amended to provide that the repeal of section 19AA of the Crimes Act 1914 only apply prospectively.

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[37] Schedule 1, item 11. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[38] Where remissions are granted as a result of industrial action by prison officers, the 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 subsection 19AA(4) of the Crimes Act 1914.

[39] Schedule 1, item 2.

[40] Schedule 1, item 11.

[41] Statement of compatibility, p. 12.