‘Unjust and potentially unlawful’: NSW Government urged to reverse prison offence reforms

This is one of many case studies included in the NSW Ombudsman’s scathing investigation into the prison offence system in the state in late 2024. The report identified “maladministration at all steps” of this process, which was steeped with “systemic failures”. The correctional centre offences process involves someone in prison being found guilty of an “offence”. These are not criminal matters and can range from a failure to clean the yard or wearing the wrong clothing, to more serious matters.

There can be serious consequences of being found guilty of such an offence. It can lead to not being able to make phone calls or receive visitors for nearly two months or being confined to a cell for up to a week. Being found guilty of a prison offence can also impact someone’s security classification and where they are held in a prison, and can also play a part in whether someone is given parole.

In its report, the NSW Ombudsman handed a blueprint to the state government to fix the prison offences process. A key recommendation was that the required standard of proof to find someone guilty of a prison offence – the criminal standard of beyond reasonable doubt – be retained, especially for the more serious offences with larger penalties.

Just over a year later, the NSW Government did the exact opposite and passed legislation lowering the standard of proof required to find someone guilty of a prison offence to “on the balance of probabilities”. The reform has led to significant backlash from a range of legal, human rights and advocacy organisations, and a rare public rebuke from the Ombudsman over the failure to implement its recommendations.

The perception of fairness

For Justice Action coordinator Brett Collins, advocates for people in prison are “absolutely disgusted” by the move.

“It’s not a minor issue – it’s the whole displacement of fairness and the perception of fairness,” Collins tells LSJ Online. “It’s totally wrong for the government to have overruled the Ombudsman. It sends such a bad message and raises the whole question of fairness. It says to people in prison that they can’t expect fairness. The Ombudsman is a bulwark against unfair behaviour. “It’s outrageous for the government to say it doesn’t matter.”

A number of organisations, including the Australian Lawyers Alliance, Aboriginal Legal Service NSW/ACT, Justice and Equity Centre, Human Rights Law Centre, Justice Action and NSW Council for Civil Liberties, have now written an open letter to NSW Minister for Corrections Anoulack Chanthivong urging him to reverse this change and instead follow the Ombudsman’s path.

“We share the Ombudsman’s concerns and strongly oppose the decision to lower the standard of proof for correctional centre offences,” the open letter says. “This was a regressive reform which cannot, and does not, address the systemic failures identified in the Ombudsman’s report.”

Aboriginal Legal Service NSW/ACT principal solicitor Lauren Stefanou says the changes will disproportionately impact First Nations people. “These are not benign administrative decisions with insignificant consequences,” Stefanou tells LSJ Online. “People in prison are at risk of serious harm to their mental health and wellbeing through the imposition of punishments including confinement in cell for up to seven days, and denial of phone calls and family visits. “Rather than weakening protections for people who are incarcerated, the NSW Government should be prioritising measures which lead to fewer people being imprisoned in the first place.”

Justice & Equity Centre policy lawyer Lucy Kelley says the changes will have a real negative impact on people in prison. “Our primary concern is that these reforms are going to have really harsh consequences for prisoners in NSW and they’re going to disproportionately impact populations that are already disenfranchised by the criminal legal system, and already over-represented,” she says. “This is a really regressive step and one that directly flies in the face of the Ombudsman’s recommendations for a fairer and more effective inmate discipline system.”

From failing to clean your cell to trading food

The Crimes (Administration of Sentences) Amendment (Standard of Proof) Bill 2025 was passed by Parliament with bipartisan support in November last year. It means that someone in prison can face a week confined to their cell or not being able to call their loved ones for 56 days if it is found “on the balance of probabilities” that they committed a prison offence. There are 71 of these offences listed in NSW regulations, including “fail to clean yards”, “fail to comply with correctional centre routine”, “misuse of bell”, “unlawfully trade in food” and “improper clothing”.

The punishments that can be imposed for these offences include the removal of privileges for 56 days, confinement to a cell for up to seven days, and the cancellation of payments for two weeks. The Greens “stridently” opposed the bill, saying it was “just outrageous”. “The status quo is not working, there is widespread maladministration, and there are human rights breaches and a raft of appalling outcomes,” NSW Greens MP Tamara Smith said in Parliament late last year. “The government is asking the head of the prison to act as judge and jury to decide on the balance of probabilities whether an inmate should be locked up in solitary confinement.”

Speaking in Parliament, Chanthivong said lowering the standard of proof aligned NSW with most other jurisdictions in the country, where the civil standard is applied in “all, or most, inmate discipline matters”. But the majority of states in the country still apply the higher criminal threshold to more serious, “major” offences, something that NSW no longer does. Prison offences are separated into minor and major ones in Victoria, Queensland, Western Australia and South Australia, with the higher burden applied for the more serious offences.

Independent legal advice commissioned by the Ombudsman and provided to the state government in late 2024 recommended that NSW join these jurisdictions in dividing prison offences into minor and major ones. The advice, provided by Simeon Beckett SC and Dev Bhutani from Maurice Byers Chambers, put forward changes to “promote fairness and just outcomes for prisoners”, and for the “just, efficient and quick operation of the disciplinary process”.

“Our view is that, because correctional centre offending is considered as part of the parole purpose and may have the effect of prolonging a period of imprisonment, the higher standard of proof should apply for a major offence,” the advice said.

Lowering the standard is “unjust and unreasonable, and inconsistent with the principles of a fair trial and the presumption of innocence”, the open letter says. It also suggested lowering the standard would disproportionately impact First Nations people and those with cognitive impairments, disabilities or mental illnesses. “We call on you to affirm the government’s commitment to improve the discipline process for incarcerated people and ensure compliance with all legal and procedural fairness requirements, by implementing the NSW Ombudsman’s recommendations and supplementary recommendations in full,” the letter says.

The state government’s move to lower the bar appeared to come as a surprise to the Ombudsman itself. In a rare “default of consequent action”, which can only be made when there has been an inadequate response to a previous report and its recommendation, the Ombudsman said that the state government had originally accepted all of its recommendations to improve the prison offence process, and had begun implementing them. But this progress stalled last year, the Ombudsman said, and little was heard until the different reforms were unveiled.

The Ombudsman said that lowering the burden of proof was something it “explicitly recommended should not be done”.

“In our view, lowering the standard for serious correctional offences introduces a new injustice,” it said. “Serious correctional offences, many of which correlate with criminal offences, carry significant punishments. These can include cell confinement and the banning of phone or in-person visits. “Guilty findings also create an offence record, which will be taken into account in future parole decisions, potentially impacting the time an inmate will spend behind bars.”

The Minister for Corrections recently responded to this report in Parliament, reaffirming in principle support for all of the Ombudsman’s recommendations. In a statement to LSJ Online, Chanthivong says his department is now preparing an implementation report for the Ombudsman. “We make no apologies for introducing reforms that support making correctional centres safer for staff and inmates,” Chanthivong says in the statement. “I support CSNSW’s ongoing efforts to implement the Ombudsman’s recommendations and deliver the longer term changes needed to strengthen the system.”

‘Systemic failure’

The Ombudsman’s original investigation in 2024 found a “systemic failure” to follow the legislation and relevant policies around prison offences. It identified a “significant proportion” of cases where someone was found guilty but it was not possible to meet the “beyond reasonable doubt” threshold. Many of these findings of guilt were overturned after the intervention from the Ombudsman.

The Ombudsman ultimately found that some parts of the inmate discipline process in the state were against the law, while others were unreasonable, unjust or just wrong. “Any reforms to the inmate discipline system to address substandard or non-compliant processes should be directed to improving these processes, and not to watering down the standards or rules themselves in a way that would adversely affect the rights of inmates overall, such as by a general reduction in the standard of proof required for offences or by curtailing the rights of inmates to fairly participate in the inquiry,” the report said.

The prison offence process differs significantly across Australian states and territories. In Victoria, a decision-maker is required to be sure to a “reasonable satisfaction” that an offence has occurred, and privileges can be lost for up to 14 days. In Queensland, privileges can be withdrawn for up to a week for serious offences, and someone can be confined to their cell. In Western Australia, a decision-maker must “find the charge proved”. In the ACT, privileges can be lost for up to 180 days if someone is found guilty of a prison offence, with the civil burden of “balance of probabilities” used.

Signatories to the open letter in NSW have also urged the state government to phase out the stripping of privileges like visits and phone calls, and confinement to a cell, as punishments for these prison offences. They said that these consequences are “contrary to the rights, wellbeing and inherent dignity of incarcerated people and do little to reduce recidivism”.

“These steps are necessary to ensure a fairer, more effective and accountable system, which upholds the rights of incarcerated people and is consistent with fundamental principles of procedural fairness,” the letter says. “Failure to take these steps risks compounding harm and trauma, contrary to the correctional system’s objectives of providing a safe, secure and humane environment for incarcerated people and providing for rehabilitation with a view to reintegration into society.”

Punishments like restricting someone to their cell or banning them from visits and phone calls can have a major impact in the short and long-term, Kelley says. “We know that solitary confinement obviously can cause serious and lasting psychological harm, and things like phone calls and visits from friends and family are some of the only ways that people can maintain connections while incarcerated,” she says. “And we know those connections are really crucial to maintaining prisoner wellbeing, reducing recidivism and supporting rehabilitation and reintegration once someone is released from prison.”

The prison offences reforms directly infringe the rights of people in prison, she says. “The general public needs to have confidence in these systems – that prisons are operating in a way that’s fair, effective and accountable, in accordance with the rule of law, and these reforms erode that,” Kelley says.

“Where is procedural fairness? Where is the right to be treated with dignity and respect?”

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