Wednesday, 24 November 2021
Crimes Amendment (Remissions of Sentences) Bill 2021
Labor supports the Crimes Amendment (Remissions of Sentences) Bill 2021. It would amend the Commonwealth's Crimes Act. For starters, it would repeal section 19AA of the Crimes Act, which applies remissions granted under state or territory laws to head sentences for Commonwealth offences. For clarity, a remission is a reduction in the term of a prison sentence. By way of example, a state or territory law may provide that a prisoner's head sentence can or should be reduced if the person's time in prison is harsher than had been anticipated at the time of sentencing, such as where a person is detained in his or her cell for longer than usual because of a fire or other emergency situation, or because of an industrial dispute. More recently, the requirements for lockdowns as a consequence of COVID-19 have resulted in prisoners detained in cells for long periods without the usual access to exercise yards and other activities outside their cells. The upshot of section 19AA in the Crimes Act is that any such reduction under a state or territory law is applied automatically to the head sentences of individuals who have been convicted of Commonwealth offences. The laws in the states and territories vary in this area. That means that individuals who are handed the same sentence in different states may ultimately end up having a different term of imprisonment depending on the state or territory in which he or she is sentenced.
The other aspects of section 19AA of the Crimes Act—subsections (2) and (3)—would also be repealed. Subsection 19AA(2) applies any state or territory law crediting 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. Clean street time is the period between when an offender is released on parole up to the time when their parole order is revoked because of noncompliance with an order. In most states or territories clean street time is taken into account in determining consequences for an offender who has breached his or her parole order. The bill would replace subsections 19AA(2) and (3) with a new subsection, in a different part of the Crimes Act. The upshot of these amendments would be that courts could still consider clean street time when dealing with federal offenders who have breached parole conditions, but state and territory laws in relation to clean street time would no longer automatically apply to federal offenders.
As a number of those opposite have noted in the debate, this bill was prompted by some recent high-profile examples of federal offenders being granted emergency management days in Victoria with the effect that their sentences were substantially reduced. It is disappointing, but perhaps not surprising, that some in the Morrison government have sought to politicise this bill by pretending that emergency management days are a new thing. As I've already mentioned, under Victoria's Corrections Act, the corrections commissioner may reduce a prisoner's sentence if the individual demonstrates good behaviour while suffering disruption or deprivation during an industrial dispute, an emergency or other circumstances of a special or unforeseen nature.
These reductions are referred to as emergency management days, and they are not new. The current Victorian regime, in relation to emergency management days, was introduced in 1992. Every Commonwealth government, including the current government, has been aware of those arrangements ever since. So it's a bit rich and more than a little concerning that those opposite feign surprise over the fact that emergency management days have been applied by the Victorian corrections commissioner in recent times. Australians are entitled to expect their federal government to be on top of these matters.
This bill was the subject of inquiry by the Legal and Constitutional Affairs Legislation Committee. The primary concern raised by submitters was that the measures in the bill would apply retrospectively, with the effect that reductions in sentences that had been already applied under Victorian law, in particular, would be removed by the bill. In response to that concern, the Attorney-General's Department submitted that remissions and reductions 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, while also noting 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 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 rise to speak on the Crimes Amendment (Remissions of Sentences) Bill 2021. The Australian Greens will definitely not be supporting this bill, and I'm sure it comes as no surprise. It takes away people's human rights, which is what this government is very clever at. The bill seeks to amend the Crimes Act to repeal section 19AA, which applies remissions or reductions granted under state or territory laws to federal sentences.
Remissions or reductions in sentences are usually granted in recognition of restrictions placed on imprisoned people that are necessary in emergency circumstances. Usually, remissions are automatically applied to reduce the federal offender's head sentence as soon as they have been granted. Victoria is the only jurisdiction with laws providing significant remissions or reductions that apply to an imprisoned person under a federal offence. In Victoria, these remissions are known as emergency management days, EMDs.
This bill would repeal section 19AA of the Crimes Act 1914—so old—so that it would no longer apply reductions or remissions in sentences granted to imprisoned people serving periods of imprisonment for federal offences. It would apply to people imprisoned for a federal sentence who are serving that sentence in a state or territory jail immediately before the date of commencement. However, this bill would be retrospective and take away remissions or reductions to people who have already received them. Therefore, any remissions or reductions they had already been granted are taken to be of no effect.
As of June 2021, 1,151 people were imprisoned for federal offences around this country. Of these, 317 are imprisoned in Victoria. In Victoria, emergency management days are granted to reduce the sentence of imprisoned people for good behaviour or to imprisoned people who suffer a disruption or deprivation during an emergency, or an industrial dispute in the jail where the sentence is being served, as well as for other unforeseen circumstances—like COVID-19. Generally, emergency management days provide an incentive—hello, an incentive!—for imprisoned people to maintain good behaviour. But you don't want that; you want to cause riots. This could or would result in these people being further deprived of their liberties. So, they'll get punished for being on good behaviour. It makes a lot of sense, right! But this incentive in turn helps to maintain security and good order in prisons.
Secondly, emergency management days compensate imprisoned people for the impacts of increased deprivation and disruption during their imprisonment. This has been really important during the current COVID-19 pandemic, which resulted in even greater restrictions and deprivation of liberties in jails—not to mention that many of these jails didn't even do the minimum to prevent COVID infections; some didn't even have soap. When this country was running around telling everyone to wash their hands, prisons didn't even have soap for people to wash their hands with. So, 'minimum protection' for prisoners really means minimum. And now this government wants to kick imprisoned people even further with this bill that would apply retrospectively. The prisoners are told, 'Because of the COVID-19 lockdown, although we said that you're going to get out earlier and we were going to compensate you for that time, actually, no, we're not going to do that anymore.' Tell me how you'd feel if you were locked up.
The Standing Committee for the Scrutiny of Bills, in Scrutiny Digest 15 of 2021, reported:
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—
To the lawyers: do you hear that? The rule of law—I'm not a lawyer; you should know better—
that, in general, laws should only operate prospectively (not retrospectively)—
Don't go backwards!
The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals.
In its scrutiny report of the bill, the Parliamentary Joint Committee on Human Rights noted:
Questions remain as to whether the measure is arbitrary, noting that it does not only apply prospectively to ensure future grants of remissions will not apply to federal offenders, but also applies retrospectively so that those who have already had remissions applied will no longer receive them.
This government is as committed to not upholding basic human rights as they are to not being accountable for their many, many failures. We see what this government is doing—trying to ram through these nonsense law and order bills so that the country won't see how dysfunctional they really are.
This bill should not proceed. Instead, the government should enact a human rights charter. But they're too scared to do that: we don't want people in this country to have human rights, do we?—because you want to keep abusing them! We need a charter of human rights in this country to ensure that no-one is blocked from asserting their rights and dignities—for example, by preventing the retrospective enacting of laws. All you've done all week is bring incredibly problematic legislation. Talk about unity in this country! You're bringing disgusting, racist, punitive legislation that ain't gonna win you votes at the next election. You're kidding yourselves. You've got half of your bench and half of your party absolutely disgusted by some of your behaviour. They are quietly saying, 'I know it's really bad, you know?'
As I said, instead of bringing in incredibly problematic legislation, have a look at its serious impact on people's human rights and dignity. Because you care about that in your lives. You walk around free, privileged—very privileged, I might add—and you make up laws that hurt people and discriminate against people. That's what you're doing. How do you sleep at night knowing that? How do you sleep at night knowing that a person in prison has been locked down because the prison went on strike? The prison went on strike because you didn't give any favours to your mates running the private prisons, like Serco. You're in bed with them too. How do you sleep at night being buddies with Serco, which is hurting people in prison and detention centres—black, refugees? It's a horrible thought.
You can sleep well at night in your privileged little bed while that prisoner gets locked down because the prison went on strike last week. What happens with this bill? That prisoner thinks that they are getting out. They've been on good behaviour, they've been doing all the right things and they're looking forward to getting out a bit earlier because the prison went on strike. But, no, this government is saying: 'Well, sorry, we've changed our mind. We're going to introduce some legislation that takes all your rights away now. We know that you've been on good behaviour but we're going to take them away anyway. Bad luck, buddy!' Imagine if that were your family member—and I know you live in a privileged bubble; they're all protected—who got told that the government had just made a decision that takes away their rights even though they've been doing the right thing. We've just made a decision that's going to screw up their life even more.
We just want to keep you locked up so you stay away from my little white privileged family so I can live our perfect little life and not believe in climate change, not believe in working for the people who really, really need help and not worry about people's human rights. We're going to make decisions because we're so privileged that we don't care about those people. We don't care about blackfellas; we don't care about people in prisons; we don't care about refugees; we don't care about climate change; we don't even care about people voting for us anymore, because we're—I can't say the word—pretty 'effed'.
I withdraw that but I think you get the sentiment. It's absolutely disgusting what you people are doing to normal people out there that don't have your privilege. You haven't struggled in this country like these people have but you continue to make laws that hurt people and keep them locked up and torture them. You talk about mental health but you're happy to take someone's dignity and liberties away. How do you think that affects someone's mental health?
How dare they do this to people imprisoned in this country? How dare they backdate this decision? I hope that the minister responsible delivers that message personally to every prisoner who has been on good behaviour, doing the right thing, who they decided: 'You're just a pleb to me, because I'm so privileged and I don't have to care about people like you in my world. My world is so plastic and privileged, I don't really care about anybody else. Because I'm a politician, I'm right; I've been here for a decade or so. I've got my mansion. I've got my white privilege. Why should I care about people that are in jail? Why should I care about people in detention? Why should I care about this so called climate thing that I keep denying?'
What do they actually care about beside themselves—seriously? They prance around here so privileged—so privileged!—that they don't even know it. I urge those opposite to get rid of this bill and, while they're doing that, to check their privilege. Instead of giving me little smirks and raising eyebrows, which is what privileged white people do to black people like me, they should check their privilege, get rid of this bill and give people their human rights and dignity. (Time expired)
The need for this Crimes Amendment (Remissions of Sentences) Bill 2021 can be best summarised in relation to a case study which the Australian Federal Police provided as its submission to part of the review of this bill in relation to the sentencing of Mr Adam Brookman:
On 23 June 2021, Mr Brookman was sentenced to 6 years and 8 months imprisonment, with a nonparole period of 5 years, after pleading guilty to the charge of performing services in Syria in support or promotion of the commission of an offence against the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). But for his guilty plea, Mr Brookman would have been sentenced to imprisonment for 8 years and 6 months with a non-parole period of 7 years. At the time of sentencing, Mr Brookman was expected to serve an additional 9 months in custody (noting he had been in custody on remand for 5 years and 11 months).
Note that this is an individual charged with respect to performing services in Syria in relation to committing offences under the Crimes (Foreign Incursions and Recruitment) Act. The submission also said:
It is important to note that the sentencing judge, in her remarks, already considered and accounted for hardship caused by the COVID-19 pandemic.
What happened in the case of Mr Brookman? The submission states:
On 23 June 2021, the same day Mr Brookman was sentenced, the AFP was advised that Mr Brookman had been granted a total of 342 EMDs pursuant to s 58E of the Corrections Act 1986 (VIC), resulting in a reduction of Mr Brookman's overall sentence and his release into the community—
This is a person who went to Syria and was convicted under the Crimes (Foreign Incursions and Recruitment) Act—
… resulting in a reduction of Mr Brookman's overall sentence and his release into the community late on the evening of 23 June 2021.
Note the date, Madam Deputy President: it's the same date that he was sentenced. On the same day that he was sentenced, and within a matter of hours, because of this extraordinary grant of 342 EMDs he was released. As the AFP said:
The time between sentencing and Mr Brookman's release was a matter of hours. As a high risk terrorist offender, Mr Brookman was a risk to community safety …From the time of his release till 6 July 2021, when an interim control order application was determined by the Federal Court of Australia, there was a short period of time—
Count the days: 23 June 2021 through to 6 July 2021—
There was a short period of time where a control order was not in place against Mr Brookman.
That was a direct result of the fact that the extraordinary total of 342 EMDs had been granted and Mr Brookman's sentence had to be reduced by that amount. If nothing else, it draws into stark relief—