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The content on this page was last reviewed on 14 June 2022.

1. Overview

There is no provision in the Crimes Act 1914 (Cth) which allows remissions granted under State or Territory laws to apply to federal sentences.

Prior to 9 December 2021, s 19AA of the Crimes Act 1914 (Cth) provided that State or Territory laws governing remissions applied to federal offenders serving time in the prisons of that State or Territory. Section 19AA was repealed by the Crimes Amendment (Remissions of Sentences) Act 2021 (Cth).

The repeal of s 19AA applies to federal offenders who are serving a sentence in a State or Territory prison and were granted a remission or reduction of their sentence immediately before the date of commencement.1

The effect of this is that any remissions or reductions granted to a federal offender prior to 9 December 2021 to reduce the length of an offender’s sentence are taken to be of no effect. However, the repeal does not apply to federal offenders who have already served their sentence of imprisonment prior to the date of commencement.

2. The Repeal of s 19AA

Prior to 9 December 2021, s 19AA(1) of the Crimes Act 1914 (Cth) enabled remissions provided for under State or Territory legislation to automatically apply to reduce the sentence of a federal offender who resided in a prison of that State or Territory. The Explanatory Memorandum to the Crimes Amendment (Remissions of Sentences) Bill 2021 (Cth) explained the purpose of the repeal at [3], [5]:

The repeal of section 19AA of the Crimes Act is necessary in order to address the significant risks to community safety as a result of remissions, known as emergency management days (EMDs), being granted in high numbers to federal offenders under Victorian laws since the beginning of the COVID-19 pandemic… As a result, federal offenders… are receiving substantial discounts off the sentence expiry date set by the sentencing court.

In explaining the purpose of the Bill to Parliament, the Minister in the second reading speech referred to the necessity for consistency in the treatment of federal offenders across Australia:2

[T]he Bill is necessary to restore respect for the sentences which courts impose on federal offenders, including the careful balance struck by courts between the appropriate expiry of the non-parole period compared to the head sentence… Further, the Bill is necessary to ensure that federal offenders are being treated more consistently across Australia.Under the existing laws, a federal offender incarcerated in Victoria may serve a significantly lower sentence than they would if they served their sentence in any other jurisdiction. In addition, where an offender has been sentenced since the beginning of the COVID-19 pandemic, courts have taken into account additional hardships and restrictions imposed on prisoners, so offenders are already receiving consideration of the impact of COVID-19 when being sentenced. The subsequent granting of EMDs by Victoria can lead to the impacts of COVID-19 being ‘double-counted’, with offenders effectively receiving two discounts off their sentence.

3. The effect of repeal of s 19AA

Prior to 9 December 2021, s 19AA(2) enabled a federal offender to obtain a reduction in their sentence for “clean street time” (being time spent in the community on parole or licence) when a parole or licence order was revoked, where a law of the state or territory provided for such reductions.

The Crimes Amendment (Remissions of Sentences) Act 2021 (Cth), which repealed the whole of s 19AA, introduced s 19AW(3A), which provides that:

Before fixing a non-parole period under paragraph (1)(f) in respect of the outstanding sentence or sentences, the prescribed authority must have regard to the period of time spent by the person on parole or licence before the parole order or licence was revoked under subsection 19AU(1).

Section 19AW(3A) preserves the effect of s 19AA(2) by ensuring that federal offenders can still receive credit for “clean street time”.3

For further explanation of how “clean street time” is taken into account, see Release on Parole or Licence.

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  1. Crimes Amendment (Remissions of Sentences) Act 2021 (Cth), Sch 1, Item 11(1).[]
  2. Commonwealth, Parliamentary Debates, Senate, 25 August 2021, 5259 (Anne Ruston, Minister for Families and Social Services).[]
  3. This was affirmed in the Crimes Amendment (Remissions of Sentences) Bill 2021 (Cth).[]
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