Crimes Amendment (Remissions of Sentences) Bill 2021
The submission to the Senate Legal and Constitutional Affairs Legislation Committee (Committee) in response to the inquiry into the Crimes Amendment (Remissions of Sentences) Bill 2021 (Bill) was prepared by the Law Council of Australia.
As the Bill is directed at the administration of prison sentences in Victoria, the Law Council’s response is particularly informed by the input of the legal profession in that state and is grateful to the Law Institute of Victoria (LIV, a Constituent Body of the Law Council) for their input in this respect. However, the Law Council notes that the Bill will also apply to any state or territory which has provisions that allow for the remission or reduction of federal sentences.
All federal offenders are detained or imprisoned in custodial institutions established and operated by the states and territories. State and territory corrections and juvenile justice agencies manage and are responsible for the rehabilitation of federal offenders currently in custody and on parole.
As the COVID-19 pandemic continues, prisons and youth detention centres remain faced with the challenge of ensuring a safe environment for inmates and detainees who live in close proximity in hotspots for communicable diseases. In these settings, Aboriginal and Torres Strait Islander peoples are particularly vulnerable to serious and critical outcomes should they be exposed to the SARS-CoV-2 virus. Prisons may also become dangerous vectors of spread to the broader community, and measures to limit infections across these facilities will have benefits well beyond those who are presently detained.1
In some jurisdictions, the sentence imposed by a court may be remitted or reduced by the executive through the royal prerogative.2 More recently, these remissions have been undertaken pursuant to letters patent and statutory enactments. In the Australian Capital Territory, the Northern Territory, Queensland, Tasmania and Victoria, provision is still made for remission of sentences as an incentive or reward for good conduct in prison by prisoners.3
In this regard, the Law Council is concerned that the Bill removes an important tool available in some states and territories to incentivise federal offenders to comply with directions in times of emergency, including infection control measures such as mask-wearing, social distancing and quarantine. Evidence provided by government agencies and the legal profession indicates that these measures have been essential to preserve the orderly management of prisons and safeguard prisoner health.
Additionally, the Bill will result in offenders being treated unequally, where federal offenders will not have the opportunity to earn the same remissions or reductions available to their state/territory cellmates, and will create a broader inconsistency in the management of prisoners in the same facility. The Law Council queries both the public health (SARS-CoV-2 risk exposure) and broader equity impacts of the proposed legislative intervention.
The Law Council urges reconsideration of this Bill, noting that remission and reduction schemes serve an important function in acknowledging the significant hardships and restrictions necessarily imposed on federal offenders and incentivise offender compliance with measures that prevent the spread of infectious disease, including the ongoing risk of COVID-19 in the vulnerable prison environment.
You can read the full submission below.
1 Letter from Pauline Wright (President, Law Council of Australia) to the Hon Christian Porter MP (AttorneyGeneral) in relation to the federal criminal justice system and COVID-19, 26 March 2020.
2 See Kelleher v Parole Board (NSW) (1984) 156 CLR 364 ; 57 ALR 37; 59 ALJR 96; 14 A Crim R 293.
3 See Halsbury's Laws of Australia, 335 — Prisons, (8) Discharge from Prison [335-1040]