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senate vote 2021-11-25#1

Edited by mackay staff

on 2021-11-26 10:15:00


  • Bills — Crimes Amendment (Remissions of Sentences) Bill 2021; Second Reading
  • Crimes Amendment (Remissions of Sentences) Bill 2021 - Second Reading - Agree with bill's main idea


  • <p class="speaker">Paul Scarr</p>
  • <p>I rise in continuation of my remarks with respect to this piece of legislation, the Crimes Amendment (Remissions of Sentences) Bill 2021. At the commencement of my remarks, I referred to the very troubling case of a Mr Brookman, who was convicted under the Crimes (Foreign Incursions and Recruitment) Act for services he provided in Syria. He was convicted of those offences and sentenced on 23 June 2021, but there were 342 emergency management days of remissions immediately deducted from his sentence, which resulted in Mr Brookman being immediately released. It wasn't until 6 July 2021, some 13 days later, that an interim control order could be imposed with regard to Mr Brookman to mitigate the risk that Mr Brookman, given his past offending, represented to the community. I think that example brings into stark relief the issues this bill is seeking to address.</p>
  • The majority voted in favour of a [motion]( to agree with [the bill]('s main idea. In parliamentary jargon, they voted to read the bill for a second time. This means they can now discuss the bill in more detail before deciding on whether to pass the bill in the Senate.
  • ### What is the bill's main idea?
  • According to the [bill's digest](, the bill was introduced to:
  • > *repeal section 19AA, which applies remissions or reductions granted under state or territory laws to federal sentences and*
  • > *impose a consistent regime in every jurisdiction that allows courts to consider periods of compliance with parole obligations when dealing with federal offenders for breaches of parole.*
  • It [further explained]( that:
  • > *The Commonwealth does not own or operate any prisons and federal prisoners are housed in state and territory prisons. As of June 2021, 1,151 people were serving federal sentences in prisons across Australia. Prisons located in Victoria accommodated 317 people serving federal sentences as of June 2021 (that is, 27.5% of all persons serving federal sentences). As at 30 June 2020, convicted federal offenders comprised approximately six per cent of Victoria’s total prison population.*
  • >
  • > *[...]*
  • >
  • > *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).*
  • >
  • > *The Bill was prompted by the granting of EMDs in Victoria; however, it will also apply to federal prisoners in any state or territory which makes provisions in the future allowing for the remission or reduction of sentences.*
  • <p>There are five further matters I want to deal with in the continuation of my contribution. The first is for this place to note that we're talking here about federal offences and persons convicted under federal offences. The reality of the situation is that this issue of remission arising from so-called emergency management days only occurs in Victoria, so there is an inequality in the application of those remission days across the country. I put it to you, Madam Acting Deputy President Askew, convictions under those federal offences, the application of remission should not be dependent upon which state jurisdiction a particular prisoner is in custody.</p>
  • <p>The second point I want to make is around the uncertainty that the use of emergency management days presents with release dates. We saw that in stark relief in the case of Mr Brookman with the uncertainty which is presented when we have the application of these emergency management days.</p>
  • <p>The third point I want to make is the 342 emergency management days which were remitted off the head sentence of Mr Brookman were, in fact, arising out of the COVID pandemic emergency. The COVID pandemic emergency and the impact it had on Mr Brookman whilst in remand was considered by the sentencing judge, so the application of an additional 342 emergency management days represents a doubling up of that being considered in the sentence to be served by Mr Brookman. It wasn't as if the impact of the COVID-19 pandemic was not considered; it was, in fact, considered by the sentencing judge and in her sentencing remarks. But the reality was there was no appreciation at the time of sentencing that these 342 emergency management days would be taken off the sentence.</p>
  • <p>Previous speakers, in particular Senator Thorpe, referred to the retrospective nature of the legislation. This was a very good point to raise because the practice is and the practice should always be that, as a general principle, legislation should not seek to have retrospective effect in matters such as this. However, that is a general principle and it was carefully considered by the Legal and Constitutional Affairs Committee when we conducted our review of the legislation. Paragraph 2.31 of our report says:</p>
  • <p class="italic">The committee draws to the Commonwealth government's attention concerns raised during the course of this inquiry about the retrospective application of the bill. The committee notes, however, that on balance&#8212;</p>
  • <p>And these matters are always a question of balance.</p>
  • <p class="italic">these concerns do not outweigh the clear advantages associated with ensuring greater certainty that sentencing decisions for federal offenders are not reduced or amended. This is particularly the case when these offenders continue to pose a serious risk to the community. Moreover, the committee notes that the bill would not authorise the removal of remissions granted to offenders who have already been released from custody.</p>
  • <p>Those are two key points for the consideration of this chamber of the retroactive application of the bill. Firstly, it doesn't seek to impose retroactive application to those who have already been released. Secondly, with respect to those who have not been released, this chamber has a duty, an obligation in my view, to balance the retroactive application of the bill on the one hand with the threat to community on the other. In my view, in this case, as an exception to the general rule, the balance falls in favour of the passage of this bill to ensure that we don't have any more cases such as Mr Brookman, who was convicted for performing so-called services in Syria, sentenced to six years and eight months in prison only to find that, with the application of 342 emergency management days of remission, he was immediately released into the community without the federal government having an opportunity to seek an appropriate control order. With that, I commend this bill to the chamber.</p>
  • <p class="speaker">Amanda Stoker</p>
  • <p>I thank senators for their contribution to the debate on this important bill. The Crimes Amendment (Remissions of Sentences) Bill 2021 will enhance community safety by addressing the unacceptable and unjust consequences of remissions that Victoria is granting to federal offenders during the COVID-19 pandemic. The effect of section 19AA and the application of emergency management days in the context of the COVID-19 pandemic is that many federal offenders who are incarcerated in Victoria&#8212;including terrorists, child sex offenders and drug traffickers&#8212;are receiving substantial discounts off the sentence expiry date set by the sentencing court. Removing the automatic recognition of these remissions, known as emergency management days, will ensure that federal offenders serve the sentence as set down by the court at sentencing, regardless of the state or territory in which they serve that sentence. It will promote community safety and achieve certainty about the release date for offenders.</p>
  • <p>I thank the Senate Legal and Constitutional Affairs Legislation Committee, the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights for their careful consideration of the bill. The government welcomes the recommendations of the Senate Legal and Constitutional Affairs Legislation Committee that the bill pass and does not accept the recommendations made by the Australian Greens in its dissenting report. The government agrees with the committee that, on balance, the concerns about retrospective application do not outweigh the clear advantages of ensuring greater certainty that sentencing decisions for federal offenders are not reduced or amended, especially where offenders continue to pose a serious risk to the community. The bill restores certainty about the end date of a federal offender's sentence, so the matters relating to retrospectivity don't change that in the slightest, and it allows agencies and prisoners to plan the rehabilitation process ahead of their release.</p>
  • <p>The circumstances that allowed high-risk federal offenders to serve shorter sentences than those set down by the courts in Victoria must not occur again. Keeping Australians safe is the government's highest priority, and this bill ensures that offenders who are in prison from the time of commencement will not receive any remissions off their sentences and will instead serve the sentence that the court considered at sentencing was appropriate for them in light of their circumstances, their offending and their risk profile to the community. The bill addresses the significant risks to community safety and unacceptable and unjust consequences of high numbers of emergency management days being granted by Victoria during the COVID-19 pandemic.</p>
  • <p>Once again, I thank senators for their contribution to the debate, and I commend the bill to the Senate.</p>
  • <p class="speaker">Wendy Askew</p>
  • <p>The question is that this bill be now read a second time.</p>
  • <p></p>
  • <p></p>