Crimes Amendment (Remission of Sentences) Bill 2021 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 223 (21 October 2021)

• Crimes Amendment (Remission of Sentences) Bill 2021
• Retrospective application
• Personal rights and liberties153

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Crimes Amendment (Remission of Sentences) Bill 2021

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

Retrospective application
Personal rights and liberties^[153]

2.126 In Scrutiny Digest 15 of 2021 the committee requested the Attorney-General's 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.^[154]

Minister's response^[155]

2.127 The Attorney-General advised:

The current operation of section 19AA of the Crimes Act 1914 means that emergency management days granted to federal offenders are automatically recognised in relation to a federal offender's sentence.
Some prisoners in Victoria are receiving substantial discounts off their sentences, which have not been anticipated or considered by the courts in sentencing. The granting of significant numbers of emergency management days is inappropriate, as it interferes with, and undermines, careful and considered sentencing decisions made by the court. Sentencing courts undertake a complex and detailed consideration of these individual circumstances in determining the appropriate sentence for offenders, informed by precedent and sentencing principles.
Significant sentence discounts applied to serious offenders undermines the seriousness of the conduct to which the sentences relate. In extreme cases, where a court has crafted a sentence to ensure a federal offender is able to access offence-specific rehabilitation programs in prison, such as sex offender treatment, the application of emergency management days may mean that the offender is unable to complete that program in custody. That offender would then be released into the community without the benefit of treatment designed to reduce the risk that they pose to community safety.
These sentence discounts also pose significant operational challenges for intelligence and law enforcement authorities, particularly for managing high risk terrorist offenders. Shifting and shortening sentence expiry dates is unpredictable, and can impact the post-sentence management options for offenders who are eligible for a continuing detention order (CDO) under Division 105A of the Criminal Code Act 1995 (the Criminal Code) or a control order under Division 104 of the Criminal Code.
The removal of the ability to confer significant sentence discounts in this manner is appropriate. It does not impose any additional punishments on federal offenders, and does not interfere with the sentence fixed by the court. The measures in the Bill simply restore the sentence that was justly set down by the court. These principles have been upheld in other criminal justice contexts.
For example, the High Court, in the matter of Kevin Garry Crump v the State of New South Wales [2012] HCA 20, determined that amendments made to NSW legislation to make it more difficult for the plaintiff to be released on parole did not interfere with the original sentence, or the order made in relation to the plaintiff declaring a minimum term he was required to serve before being eligible for release on parole. The majority considered that the relevant NSW law 'did not impeach, set aside, alter or vary the sentence under which the plaintiff suffers his deprivation of liberty.'^[156]
The risks identified above apply to all federal offenders, including those who are currently serving their sentence and who have been granted emergency management days. Limiting the application of the amendments to remissions that may be granted in the future does not address the risks to community safety posed by the significant reductions in sentences for offenders currently in custody. For this reason, the provisions need to have limited retrospective application.
The measures are proportionate, in that they apply to all federal offenders and do not seek to remove remissions granted to offenders who have already been released from custody.

Committee comment

2.128 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that some prisoners in Victoria are receiving substantial discounts off their sentences, which have not been anticipated or considered by the courts in sentencing and that the granting of significant numbers of emergency management days is inappropriate as it interferes with, and undermines, careful and considered sentencing decisions made by the court.

2.129 The committee also notes the Attorney-General's advice that limiting the application of the amendments to remissions that may be granted in the future does not address the risks to community safety posed by the significant reductions in sentences for offenders currently in custody and that for this reason, the provisions need to have limited retrospective application.

2.130 The committee reiterates its 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. The committee notes that in this case, federal offenders who have already been granted emergency management days will be detrimentally affected.

2.131 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. As a result, the committee is not satisfied that the minister's response has adequately addressed the committee's scrutiny concerns.

2.132 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of, in effect, retrospectively depriving prisoners of already accrued remission days.

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^[153] Schedule 1, item 11. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

^[154] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2021, pp. 17-19.

^[155] The minister responded to the committee's comments in a letter dated 29 September 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 16 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.

^[156] Kevin Garry Crump v the State of New South Wales [2012] HCA 20, para 60.