New South Wales prisoners could face some of the harshest penalties in the country for trivial infractions such as “looking untidy” or “eating food in a cell”, as the government flouts advice and attempts to lower the burden of proof for inmate misconduct.
On 14 October, the government introduced a bill proposing an amendment to the Crimes (Administration of Sentences) Act. If adopted, the legislation would mean offences committed by inmates while inside prison only need to be proved to the civil standard of the “balance of probabilities”, rather than the current criminal threshold of “beyond reasonable doubt”.
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As he introduced the bill, Mark Buttigieg MLC said the change for all offences, except those referred to police or a visiting magistrate, would bring NSW in line with other jurisdictions.
But on the same day, the NSW Ombudsman took the uncommon step of publicly releasing advice it had obtained from Simeon Beckett SC and Dev Bhutani, and which was sent directly to the department last July. The advice explained that other states have not applied the lower standard of proof to all offences, and advised against doing so.
It recommended NSW follow Queensland’s system and only lower the burden of proof to the civil standard for “minor” offences committed by inmates, and maintain the criminal threshold of beyond reasonable doubt for major offences.
It also recommended there be different penalties for minor and major offences. The penalties under the lower standard of proof would remain the same as before for all offences, and can range from a caution to withdrawal of privileges for up to 56 days.
In Queensland, by contrast, the penalties are up to 24 hours for a minor offence and seven days for a major offence. The ACT has some of the harshest penalties – privileges can be withdrawn for up to 180 days – and only has a civil standard of proof for all offences.
If an inmate has misconduct recorded, that can affect decisions such as sentencing and parole hearings.
Sue Higginson, the Greens spokesperson for justice, said the move had alarmed advocates and called for the government to bring the legislation in line with the advice sent to the department.
“The government claims their proposed changes will bring us in line with other states, however … in NSW there is no separation between major or minor offences, which means an inmate can suffer significant and draconian penalties for offences as trivial as ‘looking untidy’ or ‘eating food in a cell’,” she said.
“The legal advice reveals that New South Wales has one of the most draconian and punitive inmate discipline systems in the developed world.”
The ombudsman obtained the advice during an investigation last year, which found “a systemic failure” by correctional facilities across the state to adhere to legislation and policies when disciplining inmates – including the criminal standard outlined in the legislation.
The report, which was released by the ombudsman in August 2024, examined more than 56,000 offences from 2018, finding that one in three charges laid against inmates during disciplinary proceedings were incorrect.
It warned against “watering down the standards or rules”.
The report detailed a number of cases, including that of Rahim, who was found guilty of failing a prescribed drug test and was penalised with a 42-day ban on buying items from the prison store.
He told a prison officer he failed the test because he was legally taking prescribed medication, but the officer said there was nothing they could do. Rahim then complained to the ombudsman, who found he was telling the truth. His guilty verdict was struck down.
The new legislation was initiated by the minister for corrections services, Anoulack Chanthivong, in early October after the Public Services Union, whose members are prison officers, threatened to undertake industrial action over the issue.
Chanthivong, said: “These changes make our system fairer, more consistent and safer.”
A spokesperson for the ombudsman told Guardian Australia it had formed the view it was in the public interest to proactively publish the advice.
“As noted in the proactive release, this does not necessarily mean that the ombudsman shares or endorses the policy opinions of senior counsel.”
