The progress of NSW inmate discipline system reform report
The progress of NSW inmate discipline system reform report March 2026
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The progress of NSW inmate discipline system reform report March 2026
PDF - 2MB
The NSW Ombudsman has called on the Minister for Corrections to respond to concerns that insufficient steps have been taken in due time to reform the inmate discipline system in response to the Ombudsman’s 2024 investigation.
This report has been published under section 27 of the Ombudsman Act 1974. Reports under that section are infrequent and can be made only when the Ombudsman believes there has been an inadequate response to a previous investigation report and its recommendations.
On 21 August 2024, we tabled a report entitled Investigation into inmate discipline in NSW correctional centres (the special investigation report). In that special investigation report, the Ombudsman found a systemic failure by Corrective Services NSW (CSNSW) to follow the requirements of the legislation and policies in relation to inmate discipline. In some cases the failure was leading to unjust outcomes and potentially unlawful decisions.
We consequently made 34 recommendations including for a comprehensive review and reform of the inmate discipline framework and accompanying processes (Recommendation 1).
This report is now being made because the Ombudsman is not satisfied that sufficient steps have been taken in due time in response to our special investigation report.
This report also raises concerns about action that has been taken by the Government – contrary to our recommendations – to lower the standard of proof in respect of all correctional centre offences determined by a governor or delegate, from ‘beyond reasonable doubt’ to ‘on the balance of probabilities’.
The initial response of CSNSW to the special investigation report was to accept all of the recommendations, at least in principle. It told us that it was ‘committed to improving the inmate discipline process and ensuring compliance with legal and procedural fairness requirements’.
Between October 2024 and July 2025, CSNSW made substantial positive progress in implementing the recommendations, including:
CSNSW told us it was making plans to implement all other recommendations, including for a comprehensive review and reform of the inmate discipline system. We were told that this would result in the new COPP being finalised by September 2025, and associated training in November 2025 (regionally) and January 2026 (at the Corrective Services Academy).
After July 2025, we stopped receiving any formal updates from CSNSW on its progress. We understand this is because these updates have been awaiting the Minister’s approval.
We are not aware of whether, and if so what, further work is now being undertaken on the proposed reforms to implement our outstanding recommendations – see
Appendix A.
On 3 October the Minister announced, and within 2 weeks introduced, legislation (the Standard of Proof Act) to lower the standard of proof for correctional centre offences from ‘beyond reasonable doubt’ to ‘on the balance of probabilities’.
In the special investigation report, the Ombudsman did not recommend changing the standard of proof.
However, we were conscious that, in implementing our recommendation for comprehensive system review and reform, one thing that CSNSW might seek to consider is the standard of proof applying to different categories of offences. That might include, for example, considering an approach of distinguishing between minor offences and more serious matters. Such an approach has been adopted in other jurisdictions (including Queensland and South Australia).[1] It was also an approach recommended for NSW by Senior Counsel (Simeon Becket SC and Dev Bhutani), in advice we shared with CSNSW in 2024.
The Ombudsman expressly recommended against an across-the-board reduction in the standard of proof, or other watering down of standards or rules in a way that would adversely affect the rights of inmates overall.
When introducing the Bill for the Standard of Proof Act, the Minister stated that ‘Corrective Services NSW staff have been mistakenly applying the balance of probabilities instead of the legislated beyond reasonable doubt standard’.
Rather than a case of mistakenly applying the wrong standard, in our investigation we saw numerous cases where the paucity of evidence presented could not have sustained a rational finding on any legal standard. This included cases where the conduct alleged simply could not have met the elements of the offence charged.
We also saw many problems that did not relate to the standard of proof, and which have not been addressed by changing that standard.
This includes: charging inmates for multiple offences for the same conduct, or with an inapplicable offence; recording ‘guilty pleas’ when the inmate indicated they wished to contest the charges; failing to comply with policy requirements (such as a requirement to refer inmates to drug intervention or addiction programs in certain circumstances); charging inmates with offences when their behaviour (such as self-harm) would more appropriately warrant referral for mental health support; failing to provide legally mandated supports (such as language and disability) during hearings; not allowing inmates to exercise their right to call witnesses; impermissibly applying multiple penalties or imposing penalties that exceed statutory maximums; impermissibility imposing cell confinement for young Aboriginal inmates, and placing other vulnerable inmates in confinement.
Whatever the arguments may be for applying a lower, civil standard to minor disciplinary matters, in our view applying any standard of proof other than ‘beyond reasonable doubt’ to a serious correctional centre offence is unjust and unreasonable.
The penalties that may be imposed for serious correctional offences include cell confinement, which is clearly a significant form of deprivation of liberty.[2] Penalties can also include deprivation of telephone calls or contact visits.
Because convictions are also taken into account in parole decisions, conviction for a serious offence – while not directly affecting the length of the inmate’s sentence[3] – can have the effect of changing the length of time behind bars.
A finding of guilt for serious offences, particularly with such potential consequences, would in our view be incompatible with fundamental principles of the rule of law, including the presumption of innocence.
This view is supported by court decisions elsewhere (including Canada and Europe) that have held that laws applying merely a civil standard of proof to serious inmate discipline matters are contrary to human rights instruments, given those charges (having regard particularly to the penalties that may result) are substantively ‘criminal’ or ‘penal’ in nature.
New South Wales has neither a human rights charter nor a constitutionally mandated ‘separation of powers’. Nevertheless, there may be constitutional limits to consider when implementing any review and reform of the inmate discipline regime. In particular, constitutional questions may arise if any such legislative regime operates in a way that impairs the institutional integrity of the courts.
In light of the above, the Ombudsman makes the following further recommendations, directed in this case to the Minister:
This is a report under section 27 (default in consequent action) and section 31 (special report) of the Ombudsman Act 1974 (NSW). It follows our report, tabled on 21 August 2024, entitled Investigation into inmate discipline in NSW correctional centres (special investigation report).[4]
This report is being made because the Ombudsman is not satisfied that sufficient steps have been taken in due time in response to our special investigation report.[5] This report also raises concern about action that has been taken by the Government – contrary to our recommendations – to lower the standard of proof in all respect of all correctional centre offences determined by a governor or delegate, from ‘beyond reasonable doubt’ to ‘on the balance of probabilities’.
The special investigation report concerned the conduct of Corrective Services NSW (CSNSW) in its administration of correctional centre offences.
Our overarching conclusion was that there is a systemic failure to follow the requirements of the legislation and the relevant policies in relation to inmate discipline. In some cases, this is leading to unjust outcomes and potentially unlawful decisions. We saw maladministration at all stages of the disciplinary process, which was not confined to any particular centres or decision-makers.
The Ombudsman accordingly made findings under section 26 of the Ombudsman Act, including findings that some aspects of the administration of inmate discipline are contrary to law and that some aspects are unreasonable and unjust, and otherwise wrong.
We made 34 recommendations. These are set out in Appendix A.
The first two recommendations are as follows:
On 18 October 2024, the Acting Commissioner of CSNSW wrote to the NSW Ombudsman advising that all of the recommendations were accepted or accepted in principle. The letter affirmed that:
‘CSNSW is committed to improving the inmate discipline process and ensuring compliance with legal and procedural fairness requirements.’
The key elements of CSNSW’s response are as follows:
In accordance with our request and usual practice, CSNSW began providing formal updates to us on its progress in implementing the recommendations. Quarterly updates were provided on 21 October 2024 and 16 January 2025. An update was not provided in March 2025, but one (covering 6 months) was provided on 29 July 2025.
In the covering letter to the July update, the Commissioner noted that:
‘CSNSW acknowledges that there is still progress to be made to respond to the special report recommendations. Please be assured that the CSNSW Executive and I are resolute that reforms must be made.’
As at that date, CSNSW told us that the following actions had been taken to implement the recommendations:
As at July 2025, we were satisfied with CSNSW’s response to our report, and to the actions being taken to implement its recommendations.
We stopped receiving formal updates after July 2025. We understand this is because CSNSW’s updates are not provided to the Ombudsman without the Minister’s approval, and that approval has not been forthcoming.
We are aware that, around July 2025 CSNSW shared a draft revised COPP, with a substantially new Inmate Discipline section), with the PSA for consultation. We have not seen this, or any subsequent draft.
Since July 2025, at officer-level, we have received copies of communications sent to CSNSW staff and inmates about the new review mechanism and the lowering of the standard of proof, both legislated in response to our report. However, we are not aware of any further progress being made toward implementing the outstanding recommendations of our special investigation report other than as indicated in Appendix A.[8] The employment of the Deputy Commissioner who was leading the relevant CSNSW project team (Mr Grant) ended in December 2025.[9]
The cessation of updates to the Ombudsman coincided with the Government’s decision to introduce legislation to change the standard of proof in relation to correctional centre offences.
The decision to legislate to lower the standard of proof was announced on 3 October 2025.[10] The Crimes (Administration of Sentences) Amendment (Standard of Proof) Bill 2025 was promptly introduced on 14 October 2025.[11] The Bill passed both houses of Parliament on 21 November 2025, and the Crimes (Administration of Sentences) Amendment (Standard of Proof) Act 2025 (Standard of Proof Act) became law and commenced on 26 November 2025.
The Act amends the standard of proof that the governor of a correctional centre (or delegate) must be satisfied of, from ‘satisfied beyond reasonable doubt’ to ‘satisfied on the balance of probabilities’, for all correctional centre offences including mobile phone offences and offences arising out of drug tests.
The Ombudsman did not recommend any change be made to the standard of proof.[12]
However, in making Recommendation 1 (comprehensive review and reform of the inmate discipline system), we were conscious that CSNSW might use the review as an opportunity to consider the standard of proof that applied to various categories of inmate discipline offences.
We were also aware of different approaches in other jurisdictions. In some,[13] a distinction is made between minor offences (such as disobedience with a procedural direction) and serious or major offences (such as assaults), with different standards of proof required – minor offences attract a lower standard (such as ‘on the balance of probabilities’ or ‘reasonable satisfaction’) and major offences attract a higher standard (‘beyond reasonable doubt’).[14] This reflects both the seriousness of a finding of guilt in the latter case, as well as the seriousness of the potential consequences in terms of the punishment that may be imposed. The advice we had received from Senior Counsel, and which we provided to CSNSW in 2024, also recommended that such an approach be considered for the NSW inmate discipline system.[15]
While Recommendation 1 allowed for CSNSW to consider such an option as part of its comprehensive review and reform of the inmate discipline system, the Ombudsman explicitly qualified the recommendation by stating that any reform should not result in a general or across-the-board reduction in the standard of proof for all inmate discipline offences.[16]
The standard of ‘beyond reasonable doubt‘ has long applied to inmate discipline offences in NSW.
Rather, the more significant historical shift that has occurred in relation to inmate discipline has been who is responsible for hearing and determining charges, and imposing punishments, for correctional centre offences. A brief history of the legislative changes is set out in Appendix B.
These changes can be seen as involving an incremental shift away from judges making decisions toward increasingly lower-ranked administrators determining inmate discipline findings and punishments.
Originally all offences were required to be heard by a visiting judge.[17] Later, governors were given the power to determine minor offences (with lower penalties), but only if the inmate consented to that happening or did not wish to contest the facts of the charge. Then governors were given the power to determine all minor offences (including contested matters), but they were still required to refer any serious offences to a visiting judge. Later, governors were given power to determine any offences, with only a discretion (not a requirement) to refer serious offences to a visiting judge.
Governors’ functions were also originally non-delegable. This later changed to enable them to delegate powers to other staff. Initially this could only be done with the approval of the Commissioner; the requirement for Commissioner’s approval was later removed.
As noted in our previous report, in practice today, no offences are being referred to visiting judges and, since 2018, governors routinely delegate the entirety of their functions in respect of disciplinary matters – including the adjudging of guilt and the setting of penalties – to specified centre staff.
The second reading speech to the Bill for the Standard of Proof Act stated that:
‘A subsequent internal review by Corrective Services NSW, as recommended in the Ombudsman's report, found that Corrective Services NSW staff have been mistakenly applying the balance of probabilities instead of the legislated beyond reasonable doubt standard, owing to a lack of education and training.’[18]
We certainly agree with the observation regarding the lack of education and training.[19]
However, the suggestion that there was a universal misunderstanding within CSNSW as to the standard of proof to be applied – which has only now come to light because of the special investigation report – is somewhat surprising. This standard appears to have applied for over a century and, for more than a quarter of a century it has been stated in unambiguous language in the legislation itself. The existing standard of proof (‘beyond reasonable doubt’) could not have been stated any more clearly. From its introduction, the Crimes (Administration of Sentences) Act 1999 has included these words:
The COPP likewise stated the standard of proof in equally clear terms.[21] In any event, in our investigation it was not obvious to us that staff were mistakenly applying an incorrect legal standard (balance of probabilities) – rather, we saw little evidence to suggest that staff were consciously applying any particular legal standard at all.
We stated in our special investigation report that ‘findings of guilt are being made in some cases despite not being proven beyond reasonable doubt’. This finding was expressed by reference to the ‘beyond reasonable doubt’ standard only because that was the legal standard at the time; but we saw many cases where findings of guilt could not have been proven even on the balance of probabilities. This included cases where the paucity of evidence presented could not have sustained a rational finding on any legal standard. We also observed cases where inmates were charged with and found guilty of an ‘incorrect’ offence – that is, where the conduct they were alleged to have done simply could never have met the elements of the particular offence with which the inmate was charged.[22]
Even an ‘on the balance of probabilities’ standard requires more than simply the decision-maker forming a subjective conclusion about the matter (‘I reckon it is more likely you’re guilty than not’). The standard is not met by calculating the odds that something happened[23] or by relying on guesswork, suspicion or rumour. The fact-finder must be actually persuaded[24] of the existence of each fact; and that persuasion needs to be reasonable, in that it is based on material that logically tends to support its existence.[25] On this point, the High Court has observed that:
To satisfy an onus of proof on the balance of probabilities is not simply a matter of asking whether the evidence supporting that conclusion has greater weight than any opposing evidence .... The evidence must "give rise to a reasonable and definite inference" to enable a factual finding to be made; mere conjecture based on "conflicting inferences of equal degrees of probability" is insufficient.[26]
Further, the strength of evidence necessary to establish a fact to the civil standard will vary depending on the nature of the fact to be proved.[27] The more serious an allegation the more substantial the evidence that may be required to prove the allegation on a balance of probabilities.[28] This is sometimes described as the Briginshaw principle.[29]
The important point here is that the problems with inmate discipline decisions that we identified in our special investigation report cannot be discounted as merely the result of decision-makers inadvertently but diligently applying a lower standard of proof. Nor, therefore, have those problems been resolved by merely changing the legislation to that lower standard.
It is apparent, for example, that the need to review, update and mandate comprehensive training for any staff who are making inmate discipline decisions (Recommendations 29 and 30 of our special investigation report) will be just as necessary whatever the standard of proof to be applied.[30]
Many of the specific problems we observed with inmate discipline decisions are unrelated to the standard of proof itself. These included:
We also reported significant failures in the provision of legally-mandated procedural fairness in the conduct of disciplinary hearings, including:
Findings were also made about unlawful, unjust and unreasonable conduct in the imposition of penalties, including:
We also identified numerous other process failings, including an exceptionally poor standard of record-keeping, as well as inadequate training.
None of these matters are addressed by changing the standard of proof.[32]
As the debate on the Standard of Proof Act shows, there is disagreement as to the appropriate standard(s) of proof that should apply to inmate discipline matters.[33]
The following table sets out some of the arguments that could be made in favour of each view.[34]
Arguments that may be put in favour of retaining the higher threshold of ‘beyond reasonable doubt’ include: | Arguments that may be put in favour of a lower standard of ‘on the balance of probabilities’ include: |
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We acknowledge that there can be reasonable disagreement about the appropriate standard to apply to minor and less serious correctional offences, being those where the consequential penalties can properly be characterised as merely ‘disciplinary’, as distinct from ‘penal’, in nature.
However, in the case of serious correctional centre offences, where serious penal consequences may ensue, any standard that is less than the criminal standard is, in our view, unjust and unreasonable.
The penalties that may be imposed for serious correctional offences include matters that involve, or at least have significant features of, additional ‘imprisonment’ or other penal consequences. These include cell confinement, which is clearly a serious form of deprivation of liberty.[41] Penalties can also include deprivation of any telephone calls or contact visits.[42] Because convictions are also taken into account in parole decisions, conviction for a serious offence – while not directly affecting the length of the inmate’s sentence[43] – can have the consequence of changing the length of time in prison.
In our view, a finding of guilt for offences having the potential for such consequences should occur only on the standard of proof ‘beyond reasonable doubt’. This is consistent with the well-established principle that, even if an accused is already imprisoned, and in that sense removed from society, this does not remove them from the protection of the law.[44] A finding of guilt on any lower standard – and the serious punitive consequences that follow – would, in our view, be incompatible with fundamental principles of the rule of law, including the presumption of innocence.[45]
In a recent Supreme Court decision in Canada, it has been held that a law that would apply a civil standard of proof to serious inmate discipline matters is unconstitutional as it violates that country’s Charter of Rights.[46] The Chief Justice said:
[1] A fundamental principle of Canadian law is that the guilt of a person charged with an offence must be proven beyond a reasonable doubt before they are punished with imprisonment. This appeal invites this Court to confirm whether such a principle applies to persons behind the walls of correctional institutions who are charged with disciplinary offences. I conclude that it does.
…
[75] In sum, these sources all point to the conclusion that disciplinary segregation and loss of earned remission are forms of imprisonment. Disciplinary segregation is a distinct form of imprisonment because it significantly curtails an inmate’s residual freedom of movement and further limits their access to human interaction. Loss of earned remission is also a sanction of imprisonment, since it has the effect of extending an inmate’s period of incarceration.
[76] Accordingly, both disciplinary segregation and loss of earned remission pass [the] true penal consequence test. Because they are available forms of punishment for the commission of a major disciplinary offence under [the relevant section] of the Act, s. 11 of the Charter [of Rights and Freedoms][47] is engaged by those offences. I leave for another day the issue of whether s. 11 of the Charter is engaged if an inmate in Saskatchewan commits a minor disciplinary offence.
The United Kingdom too moved to its current standard of ‘beyond reasonable doubt’ for serious correctional offences following the events that gave rise to a 2003 decision of the European Court of Human Rights.[48] In that decision, the Court held that Article 6 of the European Convention on Human Rights applied to the determination of serious disciplinary offences in prisons. The Article provides, among other things, that:
(1) In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.[49]
The court held that the prison offence proceedings, although classified domestically as ‘disciplinary’, in substance determined a criminal charge within the meaning of Article 6.
In the context of that matter, the United Kingdom reformed its prison disciplinary systems to provide for serious offences to be transferred to independent adjudicators (district judges), which apply criminal procedural safeguards and the standard of beyond reasonable doubt. Only minor disciplinary matters (where sanctions are limited to loss of privilege and warnings) are dealt with administratively.[50]
Australia and NSW do not have a similar constitutional charter of rights, and therefore the legal consequences of the above analysis would likely not apply here, or at least not in the same way.[51]
When introducing the Bill for the Standard of Proof Act, the Government stated that:
Correctional centre offences can be heard and determined by a governor or their delegate or referred to a visiting magistrate for determination due to the serious nature of the offence. Serious offences can also be referred to the NSW Police Force for consideration of criminal prosecution. As I will elaborate on, these safeguards will be retained in the bill.
…
Governors or their delegates will also retain the discretion to refer more serious correctional centre offences to visiting magistrates, who will continue to be required to determine guilt for these offences on the criminal standard of proof of beyond reasonable doubt. Retaining the higher criminal standard of proof for more serious matters referred to visiting magistrates is considered appropriate given that visiting magistrates can impose higher and more serious penalties than governors, including extending an inmate's sentence for up to six months.[52]
The referral of serious offences to a visiting magistrate might be an important and valuable safeguard – if it were not entirely discretionary and if, in practice, it actually occurred. However, such a referral has not been made since 2012, and there is no program for magistrates to otherwise visit correctional facilities.
While offences (such as homicides and very serious assaults) will be referred to Police, not all criminal offences or even serious criminal offences are routinely referred to Police. Indeed, in response to the Special Investigation Report and to support its campaign to lower the standard of proof, the PSA instructed its members in October 2025 to take industrial action by ensuring that such matters were not to be heard by staff but instead referred to be dealt with by Police[53] – the expectation presumably being that this practice was not currently happening and would cause significant disruption.
The court cases overseas, which have raised constitutional concerns about inmate discipline systems similar to that which now applies in NSW, lend support to our conclusion above that elements of the NSW system are unjust and unreasonable. However, they do not necessarily point to any similar constitutional issue arising in NSW.
Unlike Canada and Europe, neither the Commonwealth nor NSW has a constitutional charter of rights.
There is also no recognised ‘separation of powers’ mandated at the state level in Australia.[54] In any case, current authorities here have accepted that decisions by governors and delegates regarding inmate discipline matters are administrative (rather than judicial) in nature.[55]
Nevertheless, the Commonwealth Constitution may impose some limits on what can be legislated for in relation to inmate discipline here.
There is a now well-established constitutional principle that state courts must always remain capable of holding and exercising federal judicial power[56] and that State legislation that impairs their ‘institutional integrity’ as courts would be inconsistent with this requirement, and therefore unconstitutional.[57]
This principle has generally been invoked to challenge State legislation that purports to confer a specific function on a State court that is not inherently judicial in nature, and where the function is such that it undermines, or appears to undermine, the institutional integrity of that court and, by extension, the federal system of courts established by the Constitution.[58]
The situation in respect of the NSW inmate discipline system is different:[59] here the State legislation confers functions on someone other than a court and its judges, in circumstances where those functions might – at least at the more serious end of the offence and punishment spectrum – be argued to involve decisions that are classically undertaken by courts (i.e. adjudging guilt for ‘offences’ and imposing ‘punishments’).[60] Having these functions exercised by non-judges is neither a long-standing tradition in NSW,[61] nor is it otherwise expressly provided for under the Constitution.[62]
At some point, a question may arise with respect to the possible impact of such a regime on the institutional integrity of the courts, particularly having regard to the specific but limited role that courts and judges do have under this regime:
There being no direct authority on this point, we express no view as to the merits of any argument concerning the current NSW legislative regime. The jurisprudence in this area is difficult and it can be challenging to consider how existing authorities may be applied to, or distinguished from, different circumstances.
We suggest, however, that careful consideration of any possible constitutional issues will be required when responding to and implementing our recommendations, including in particular the work that is to be done to implement Recommendation 1 of our special investigation report (a comprehensive review and reform of the inmate discipline system).
The enactment of the Standard of Proof Act, which has lowered the standard of proof for all – including very serious – inmate discipline offences, has introduced an additional injustice into the NSW inmate discipline system.
However, while it is important that we now raise that concern (and make a recommendation below to address it), it is imperative that any concerns about the standard of proof do not overshadow the issues we raised in our special investigation report and detract from the importance of still needing to address those issues.
Many of the issues we raised in the special investigation report have the capacity to affect the actual fairness (not to mention the lawfulness) of inmate discipline outcomes even more than the question of which legal standard of proof is to apply. Indeed, a system where:
would be a much fairer system than the one we observed in our special investigation report. That system was one in which there were systemic failures to follow the law and policies across all aspects of the process (charges laid, conduct of hearings, and imposition of penalties). It was also a system where, despite the legislative requirement to apply the standard of ‘beyond reasonable doubt’, decision-makers appeared in many cases not to understand or rigorously apply any legal standard.
For these reasons, we reiterate the outstanding recommendations of our special investigation report, and highlight the primacy of recommendation A below.
The Ombudsman now makes the following further recommendations, directed in this case to the Minister:
In accordance with section 27 of the Ombudsman Act, the Minister responsible for CSNSW must now make a statement responding to this report and, in particular, the concerns raised here about CSNSW’s failure or delay in implementing all of the recommendations of the special investigation report. That statement must be made in the House of Parliament in which the Minister sits within 12 sitting days.
I request that, in doing so, the Minister also respond to the above recommendations and, in any event, that he do so in writing to my office within 2 months of the tabling of this report.
Recommendation | Status of implementation, and action we have been told has been taken |
|---|---|
System reform | |
| Current status unknown. In the last formal update we received from CSNSW in July 2025 we were told that:
An Inmate Discipline Reform Project Plan (the ‘Plan’) outlining implementation progress and indicative timeframes for completion was provided to our office on 29 July 2025. It has 3 phases – 1) short term focusing on mitigating flaws in the system and better supporting staff in policy compliance, 2) holistic redesign, 3) long term to embed the new system. The Plan states that (contingent on industrial climate), the revised COPP and inmate discipline forms were anticipated to be finalised by September 2025, associated regional training by November 2025 and Academy training by January 2026. It also said that the Commissioner’s Instruction and Memorandum (CI/Memo) was also anticipated to finalised by September 2025. No further update on the review or any subsequent reforms has been provided since July 2025. |
2. The review and any subsequent reform should encompass the entire disciplinary process and aim to introduce legislated internal and external review and appeal rights on both findings and penalties imposed as a result of correctional centre offences.* | The new Division 6A in Part 2 of the Crimes (Administration of Sentences) Act 1999 (in place from 12 May 2025) introduced a new power for the Commissioner to review findings of guilt and penalties including compensation orders. We are also aware, via officer-level communication received on 9 September 2025, that:
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* Any reforms to the inmate discipline system to address sub-standard or non-compliant processes should be directed to improving those 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. | Contrary to the recommendation, the Crimes (Administration of Sentences) Amendment (Standard of Proof) Act 2025 has lowered the threshold for determining correctional centre offences by governors and their delegates from ‘beyond reasonable doubt’ to ‘on the balance of probabilities’. |
Individual inmate discipline matters | |
3. Review OIMS to identify all disciplinary determinations where compensation has been ordered since 2018.
| In the July 2025 formal update, CSNSW told us that:
The status of stages 2 and 3 is unknown. The Plan stated that anticipated completion of all stages was early 2026. |
4. Subject to further legal advice on this matter, amend CSNSW policies and practices so that any adverse disciplinary determinations made in the period from the beginning of 2018 to the date of this investigation cannot be taken into consideration when decisions are made about an inmate’s ongoing management, including decisions concerning classification or parole, unless a review of the disciplinary package relating to that determination has been undertaken and the review concludes that the finding can safely be relied upon (that is, was not made contrary to law or contrary to policy). | In the January 2025 and July 2025 formal updates, CSNSW told us that:
CSNSW has not confirmed if the anticipated CI/Memo to support verification processes has been issued. |
Offence selection | |
5. Develop a tool to assist delegates with selecting correct offences. | Current status unknown. In the July 2025 formal update, CSNSW told us that:
The Plan stated that the suite of offences will be reviewed with a view to modernising and streamlining, as part of the redesign phase. In-principle approval of redesign was anticipated by December 2025 and policy consultation anticipated in mid-2026. |
Conduct of inquiries | |
6. Consult with the Chief Magistrate of the Local Court and the Department of Communities and Justice to consider the circumstances in which referral of a disciplinary offence to a Visiting Magistrate may be appropriate and should be considered by the governor or delegate, and then make any necessary policy amendments and establish any necessary practical mechanisms accordingly. | In the July 2025 formal update, CSNSW told us that consultation is complete. However, the status of implementing any ensuring changes is unknown. In this update, CSNSW also told us that:
|
7. Develop comprehensive, Plain English guides for delegates on elements of offences that need to be proven for offences to be proven beyond reasonable doubt. Guides should include practical examples. | Current status unknown. In the July 2025 formal update, CSNSW told us that:
(Note: The recent legislative amendment to lower of standard of proof, is not consistent with this recommendation.) |
8. Ensure all criminal offences of a serious nature are referred to the police in accordance with the Policy. | Current status unknown. In the July 2025 formal update CSNSW told us that the COPP/ Inmate Discipline Action Form (IDAF) revision and training on revised COPP will support appropriate referrals. CSNSW has not confirmed if the revised COPP and associated inmate discipline forms have been finalised. |
9. Ensure all required internal referrals are made consistently. | As above |
10. Ensure support persons are provided to all inmates that require one in line with s 52 (2) (e) of the CAS Act. | In the January 2025 and July 2025 formal updates, CSNSW told us that:
Otherwise, status unknown. CSNSW has not confirmed if the revised COPP and associated inmate discipline forms have been finalised. |
11. Consider recording hearings. | Current status unknown. In the January 2025 formal update, CSNSW told us that the recommendation had been considered but not adopted at that time due to data storage limitations, impacts on efficiency and informality of the hearings, the likelihood of de-incentivising frank and honest inquiries and lack of resources to audit hearing footage for quality assurance. In the July 2025 formal update, CSNSW told us that this was now being considered but will require union consultation due to workload implications and likely need to procure additional data storage. |
12. Consider the use of AVL technology to enable witnesses (including those called by the inmate) to be interviewed, if otherwise impracticable for them to be present for an in person hearing. | Current status unknown. In the July 2025 formal update, CSNSW told us that the anticipated CI/Memo, COPP/IDAF revision and training on the revised COPP will support this addition to policy. CSNSW has not confirmed if the CI/Memo and revised COPP/IDAF has been finalised. |
Penalties | |
13. Develop guidelines and criteria for applying penalties. | Current status unknown. In the January 2025 and July 2025 formal updates, CSNSW told us that:
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14. Cease the practice of charging compensation for amounts above the maximum allowable by legislation. | The DC Memo (Security and Custody) issued in May 2025 reinforced ceasing this practice. In the July 2025 formal update, CSNSW told us that:
(The status of both of the above is unknown). |
15. Cease the practice of charging compensation for damage where there has not been physical damage to correctional centre property. | As above. |
Review | |
16. Propose an amendment to the Crimes (Administration of Sentences) Act 1999 that a decision on both liability (whether the inmate is guilty of a correctional centre offence) and penalty can be reviewed by a particular officer and a new decision made. | Action has been completed as outlined above in relation to |
17. Subject to legislative change, create a clear process for triggering and requesting an internal review of findings and penalties due to procedural errors. | In the July 2025 formal update, CSNSW told us that action was in progress. Subsequent officer-level communication in September 2025, confirmed that staff and inmates had been informed of the process (see also above Recommendation 2). |
18. Amend the Custodial Operations Policy and Procedures 14.1 – Inmate Discipline to ensure it does not limit the grounds upon which governors can revoke a penalty. | Current status unknown. In the July 2025 formal update, CSNSW told us that:
In the Plan, implementation of recommendations relating to Phase 1 – short term and current work – is dependent on the COPP (and associated inmate discipline form) revision, anticipated by September 2025. CSNSW has not confirmed that the COPP has been finalised. |
Records | |
19. Cease the practice of deleting records after review by either General Manager, Statewide Operations or governors and delegates. Instead, institute a practice to appropriately notate the OIMS record when decisions are set aside as a result of review. | We have been told that the practice of deletion has been ceased. In the July 2025 formal update, CSNSW also told us that:
The current status of both of the above is unknown. |
20. Review and simplify the current forms contained in disciplinary packages. Ensure the forms require a summary of evidence presented in hearings, reasons for the findings and reasons for any penalties imposed. | Current status unknown. In the July 2025 formal update, CSNSW told us that the revised IDAF will reflect this, supported by revised COPP and training on the revised COPP. As above |
21. Include a checkbox in the IDAF to ensure the requirement for a support person has been considered. | Current status unknown. In the July 2025 formal update, CSNSW told us that the revised IDAF will reflect this. |
22. Digitise record creation and record keeping processes to improve record quality, retention, and useability. | Current status unknown. In the July 2025 formal update, CSNSW told us that:
|
23. Amend the policy to explicitly require the governor or delegate to record what evidence was taken into account in making any finding of guilt (including whether CCTV footage was viewed, or oral interviews (not otherwise reduced to writing) were conducted). | Current status unknown. In the July 2025 formal update, CSNSW told us that the revised IDAF will reflect this, supported by revised COPP and training on the revised COPP. We note that, following non-government amendments during passage of the bill, the Standard of Proof Act includes provisions that now require that the documentation following a guilty finding must include: “the following information that led to the finding of guilt— (a) a summary of the evidence considered, (b) the reasons for the finding of guilt, including how the finding met the standard of proof.” We are also aware, from officer-level communication we received in February 2026, that a Deputy Commissioner’s Memorandum Security and Custody (No:2025/37) dated 12 December 2025 was circulated to all staff. It states that records of findings of guilt for correctional centre offences (the IDAF) must include (a) and (b). In the future, this record will be sent to the Commissioner each month. |
Cell confinement | |
24. Review the policy requirements in relation to confinement to cell as penalty and pending instructions on how to deal with a correctional centre offence and ensure they are in line with the Mandela Rules. | Current status unknown. In the July 2025 formal update, CSNSW told us that the revised IDAF will reflect this, supported by revised COPP and training on the revised COPP. |
25. Review the mandatory cell confinement requirements under Custodial Operations Policy and Procedures 14.3 – Mobile Phone Offences and ensure they do not improperly limit delegates’ discretion and make consistent with other requirements such as the prohibition of confining young Aboriginal inmates in cells alone. | Current status unknown. In the January 2025 and July 2025 formal updates, CSNSW told us that:
|
26. Review practices in confining Aboriginal inmates, regardless of age, in cells alone and amend the Custodial Operations Policy and Procedures 14.1 – Inmate Discipline accordingly. | Current status unknown. In the January 2025 and July 2025 formal updates, CSNSW told us that:
|
27. Develop guidelines with clear criteria on when inmates should be confined in cell pending adjudication or as a penalty. | Current status unknown. In the July 2025 formal update, CSNSW told us that the revised COPP and anticipated CI/Memo include new criteria, to be supported by training on the revised COPP. |
28. Require approval by governor prior to confining an inmate in cell pending adjudication or as a penalty. | Current status unknown. In the January and July 2025 formal updates, CSNSW told us that:
|
Staff training | |
29. Require all delegates who administer inmate discipline to first undertake specialised training and provide refresher training at regular intervals. | Current status unknown. In the July 2025 formal update, CSNSW told us that:
The Plan states that (contingent on industrial climate), the revised COPP and inmate discipline forms were anticipated to be finalised by September 2025, associated regional training by November 2025 and Academy training by January 2026. Development of extensive new training for the CSNSW Academy and correctional centre staff to support reform is anticipated (contingent on passage of legislative amendments) in mid-late 2026. |
30. Review and update the current training packages and accompanying guidelines for administering inmate discipline with particular regard to improving training in:
| Current status unknown. In the July 2025 formal update, CSNSW told us that:
|
Information provided to inmates | |
31. Review all information provided to inmates about the disciplinary process and ensure that:
| Current status unknown. In the July 2025 formal update, CSNSW told us that:
We are aware, via officer-level communication received on 9 September 2025, that an Inmate Communication about their right to review was published on 6 August 2025. CSNSW reported to us that inmates received the communication via OTAB, it was placed on the agenda for Inmate Delegate Committee meetings and displayed on inmate notice boards. CSNSW has not confirmed that a general inmate fact sheet, to accompany the COPP, has been developed.
|
Oversight of the system | |
32. Establish a quality assurance and oversight program for disciplinary determinations made by all correctional centres, including those operated privately. The program should be administered by each correctional centre and centrally overseen and reported on. The quality assurance program should at a minimum include a regular review of:
| Current status unknown. In the July 2025 formal update, CSNSW told us that this was to be considered within the larger reform. The Plan states that quality assurance reform is anticipated (contingent on passage of legislative amendments) in 2027. This includes:
Development of governance and audit mechanisms to ensure ongoing quality of practice. |
33. Establish a clear escalation pathway for quality reviewers to refer individual matters for internal review if procedural errors are identified that could lead to the setting aside of findings or revocation of penalties. | As above. |
34. Collect, analyse and report data on disciplinary determinations across correctional centres to gain insight into how the system operates to inform any necessary ongoing improvements. | Current status unknown. In the July 2025 formal update, CSNSW told us that systems for ongoing monitoring will be considered within the larger reform. |
1899 - Prisons Act 1899 requires all correctional centre offences to be dealt with by a visiting judge.
1952 - Prisons Act 1952 continues the practice of all correctional offences being dealt with by a visiting judge.
1966 - Governors given the ability to finalise less serious alleged offences if the prisoner either: (a) admits the facts alleged against them in respect of the offence to be true, or (b) consents in writing to the governor hearing and determining the offence. (Lower penalties are available where matters are finalised by a governor).
1976 - 1978 - Nagle Royal Commission into NSW Prisons
1986 - Governors given the power to deal with all minor offences (as defined by a list of such offences) that are not of a serious nature. Legislation explicitly states that the standard of proof of ‘beyond reasonable doubt’ is to apply in all matters.
1987 - 1991 - Royal Commission into Aboriginal Deaths in Custody
1993 - Governors given power to delegate functions to centre staff (initially this was subject to the Commissioner’s approval; in 1999 the requirement for approval from the Commissioner was removed.)
1999 - Governors given ability to deal with both minor and major offences, with only a discretion (but not a requirement) to refer serious matters to a visiting judge. The standard of ‘beyond reasonable doubt’ continued to apply in all matters.
2002 - The 1999 change is reversed – Governors again required to refer major offences and other serious matters to a visiting judge. The standard of ‘beyond reasonable doubt’ is continued in all matters.
2004 - The distinction between minor and major offences is abolished, and the 2002 change is reversed. Governors given ability to deal with all offences, with only a discretion (but not a requirement) to refer serious matters to a visiting judge. The standard of ‘beyond reasonable doubt’ is continued in all matters.
2018 - A policy change results in governors delegating all aspects of any inmate discipline matter – the hearing, findings and punishment – to a single delegate. Previously, governors personally made determinations as to guilt and any penalties on the basis of a recommendation from a delegated officer who was delegated only the function of conducting the inquiry into the charge
2025 - The standard of proof for matters dealt with by governors and delegates lowered to ‘on the balance of probabilities’
All correctional centre offences were dealt with by a visiting judge
The Prisons Act 1899[67] provided for certain offences committed by those confined in prison to be heard before a visiting justice, or in some cases of more serious or repeat offences, by 2 such visiting judges.
Similar provisions were included in the Prisons Act 1952.[68] That Act prescribed a range of offences against prison discipline, including an offence of ‘disobeying any regulation, or any of the rules of the prison, or any lawful order of the Comptroller-General or of a prison officer’.
The Prisons Acts (1899 and 1952) did not expressly prescribe any standard of proof – but visiting justices were Magistrates of the Court of Petty Sessions which, prior to 1970, only exercised criminal jurisdiction.
Less serious matters – only if not contested or with the inmate’s consent – were able to be dealt with by the centre’s governor
Amendments made in 1966[69] provided for the governor[70] of a prison to hear certain specified less serious alleged offences if the prisoner either:
(a) admitted the facts alleged against them in respect of the alleged offence to be true, or
(b) consented in writing to the governor hearing and determining the offence.
The penalties that the governor could impose were not the same as those that the Visiting Justice could impose, in that the governor could not confine a prisoner to cell for more than 3 days or deprive them of privileges for more than one month. A justice, on the other hand, could order that a prisoner be confined to cell for up to 14 days (if heard by a single justice) or 28 days (for more serious or repeat offences, heard by 2 justices).[71] Again, no explicit reference was made in this Act to the applicable standard of proof.
Governors could not delegate their power to hear offences.
Royal Commission into NSW Prisons 1978[72] Frequently referred to as the Nagle Royal Commission,[73] it was established in 1976 to inquire into the management of NSW prisons. The report made 252 recommendations. Among other things, the Commission criticised aspects of the visiting judge procedures as they were at that time, stating that:
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All minor offences were able to be dealt with by a governor, with serious offences required to be referred to a visiting judge. The legislation explicitly stated that the standard of ‘beyond reasonable doubt’ applied in both cases
The Prisons (Further Amendment) Act 1986[74] created a new definition of ‘minor prison offence’, to be prescribed by Regulation. The governor could deal with these matters themselves.
However, the governor was required to refer to a visiting justice any offence that was not a minor prison offence, as well as any minor prison offence that the governor considered was of such seriousness that it should be referred to a visiting judge.
The 1986 Act included express provisions that all offences were to be determined, whether by the governor or a visiting judge, on the standard of ‘beyond reasonable doubt’.
In 1993, an amendment was made to the Prisons Act 1952 to permit a governor, with the approval of the Commissioner or Corrective Services, to delegate to a person any of the governor’s functions other than the governor’s power of delegation or functions delegated to the governor by the Commissioner.[75]
Royal Commission into Aboriginal Deaths in Custody (1991)[76] The Royal Commission touched on a number of aspects of the inmate discipline regime, including the practice of cell confinement as a penalty. The Commission recommended that: ‘Corrective Services should recognize that it is undesirable in the highest degree that an Aboriginal prisoner should be placed in segregation or isolated detention.’ (Recommendation 181). The Commission also recommended (Recommendation 180) that: ‘any charge involving the possibility of affecting the period of imprisonment[77] should always be dealt with [by a visiting magistrate]… All charges of offences against the general law should be heard in public courts.’ (Recommendation 180). The Commissioner also stated that managers should have some limited powers of enforcing discipline as they can, for example, in most employment situations, although there should be a right of appeal to the visiting magistrate as a consequence of a prison manager or superintendent charging a prisoner and imposing a penalty. |
All offences able to be dealt with by a governor or delegate (on the standard of beyond reasonable doubt), with a discretion (not a requirement) to refer major offences to be dealt with by a visiting judge. Governor could delegate functions without requiring approval of Commissioner of Corrective Services
The Crimes (Administration of Sentences) Act 1999,[78] when first enacted, maintained the distinction between ‘minor’ and other more serious (now defined as ‘major’) correctional offences.
However, whereas under previous legislation the governor was required (must) refer serious matters to be dealt with by a visiting judge, the 1999 legislation provided only that the governor may do so. There is no mention of this change, or the rationale for it, in the second reading debate for the Act.[79]
The requirement to obtain the Commissioner’s approval for a governor to delegate any of their functions was also removed (other than the governor’s power of delegation itself, or functions delegated to the governor by the Commissioner).
Crimes (Administration of Sentences) Amendment Act 2001 changed the ‘may’ back to ‘must’, with governors again required to refer major offences to a visiting magistrate.
The 2001 Act[80] was primarily concerned with the use of audio and audiovisual technology proceedings before the Parole Board and the Serious Offenders Review Council. In relation to the changes to the inmate discipline provisions, the second reading speech simply noted:
‘Section 26 of the repealed Correctional Centres Act 1952 imposed an obligation on the governor of a correctional centre to refer to a visiting justice any charge that was not a minor correctional centre offence. It also gave the governor discretion to refer to a visiting justice a minor correctional centre offence of a serious nature. In contrast, section 54(1) of the Crimes (Administration of Sentences) Act 1999 gives a governor the discretion to decide whether major or minor offences should be referred to a visiting justice for hearing and determination. New section 54(1) will conform to the repealed section 26, ensuring that a governor must refer major offences, and minor offences of a serious nature, to a visiting justice.’[81]
The Bill passed with bi-partisan support, the opposition stating in relation to this amendment:
‘The bill also provides that the governor of a correctional centre must refer alleged major breaches that have occurred in that correctional centre to a visiting justice or a magistrate. Effectively, those provisions to some extent remove the discretion of a governor of a correctional centre. Some people may argue that governors ought to retain that discretion because they are responsible for managing and operating correctional centres. However, the benefit of the provision will be that, on balance, there will be greater consistency if the governors of correctional centres do not have a discretion in relation to major offences and if all such offences are referred to a visiting justice.’[82]
The distinction between definitions of ‘minor offence’ and ‘major offence’ was abolished, with a single new definition of ‘correctional centre offence’; governors had the discretion (but were no longer required) to refer serious matters to a visiting magistrate
The Crimes (Administration of Sentences) Amendment Act 2004[83] replaced the definitions of ‘minor offence’ and ‘major offence’ with a single new definition of ‘correctional centre offence’. The requirement that the governor refer certain matters to a visiting magistrate reverted to a discretion to refer a matter if the governor considered that, because of the serious nature of the offence, it should be referred.[84] The penalties available to be imposed by a governor were also increased.[85]
The standard of proof remained (expressly) ‘beyond reasonable doubt’.
This Act appears to have been primarily concerned with mobile phones being brought into and used in correctional centres, and the key amendments were to provide for a more severe penalty to be imposed on an inmate found with a mobile phone, and to make possession of a mobile phone by an inmate a criminal offence as well as a correctional centre offence.
In relation to the amendment removing the requirement that all major offences be referred to a visiting justice, the second reading speech stated:
‘At present, under section 54 of the Act the governor of a correctional centre must refer an offence with which an inmate is charged to a visiting magistrate for hearing and determination if the offence is a major offence or the offence is a minor offence but the governor considers that because of the serious nature of the offence it should be referred to a visiting magistrate. The failure of an inmate to comply with the requirements of any of six particular clauses in the Crimes (Administration of Sentences) Regulation 2001 constitutes a major offence. The major offence clauses cover such matters as conceal for the purpose of escape, possess drug, and bribery. Members will no doubt appreciate that there is considerable scope in terms of the seriousness of such offences.
The mandatory referral of all so-called major offences to a visiting magistrate cannot be justified. The circumstances surrounding a so-called major offence may not warrant the referral of the matter to a visiting magistrate, with all the associated costs and administrative requirements. In some cases the referral of a matter will be a poor use of limited resources. Further, in some cases the referral of a matter to a visiting magistrate may be inefficient in terms of inmate discipline. For instance, it generally takes longer for a correctional centre offence matter to be finalised through the visiting magistrate process than it does if the governor of a correctional centre hears the matter. Under the current system, it is possible that an inmate who is on remand or an inmate who is serving a short sentence may be released from custody prior to the finalisation of the visiting magistrate hearing process. An occurrence such as this is clearly not in the public interest.’[86]
Meanwhile, in 2018, a policy change results in governors delegating their decision-making powers in relation to the inquiry and determination of correctional centre offences, and the imposition of penalties. to managers of security or functional managers. Prior to this policy change, governors made all determinations as to guilt and any penalties, although they may have delegated the conduct of the inquiry into the charges, such that governors made those decisions (guilt and penalties) after receiving a recommendation from the delegated officer who conducted the inquiry.[87]
The standard of proof was lowered to ‘on the balance of probabilities’ for all offences dealt with by a governor or delegate
The Crimes (Administration of Sentences) Amendment (Standard of Proof) Act 2025[88] lowered the standard of proof for all correctional centre offences dealt with by a governor or delegate to ‘on the balance of probabilities’.
The second read speech provided the following rationale:
By making these amendments, the bill responds to issues that have been made apparent in the application of the current criminal standard of proof to inmate discipline matters. The NSW Ombudsman report Investigation into inmate discipline in NSW correctional centres, which was tabled in Parliament in August 2024, identified a number of issues in the application of procedural fairness in correctional centre discipline. A subsequent internal review by Corrective Services NSW, as recommended in the Ombudsman's report, found that Corrective Services NSW staff have been mistakenly applying the "balance of probabilities" standard instead of the "legislated beyond reasonable doubt" standard, owing to a lack of education and training.
The Government is acutely aware of the potential impacts of correctional centre disciplinary decisions on safety within correctional facilities. Disciplinary findings may impact decisions made about an inmate's placement, classification, access to external leave programs, and parole. While the Government recognises that the NSW Ombudsman did not support changing the standard of proof, the Government considers that changing the standard of proof to one appropriate for administrative decisions and administrative decision‑makers improves accountability in light of concerns about the current New South Wales system and brings New South Wales in line with the rest of the country.[89]
There remains a discretion to refer serious matters to be dealt with by a visiting magistrate, and in such cases the ‘beyond reasonable doubt’ standard remains.[90] However, in practice no such referrals now take place and there is no practice of magistrates visiting correctional centres.
NSW legislation has also in the past (between 1986 and 2004) distinguished between minor and more serious offences. However, this distinction affected who heard the charges (a governor or a visiting magistrate, respectively) rather than the standard of proof to be applied (which was beyond reasonable doubt in both cases). See Appendix B for a brief history of the NSW legislation.
It may also involve ‘solitary confinement’ within the meaning of the Mandela Rules: see below n. 41.
If a correctional centre offence is heard by a visiting magistrate, an additional penalty is available of increasing the inmate’s sentence by up to 6 months: s 56(1) Crimes (Administration of Sentences) Act 1999. See below n. 43.
NSW Ombudsman, Investigation into inmate discipline in NSW correctional centres: a special report under s 31 of the Ombudsman Act 1974, 21 August 2024, available at <https://cmsassets.ombo.nsw.gov.au/assets/Reports/Investigation-into-inmate-discipline-in-NSW-correctional-centres-report_21-August-2024.pdf> (the special investigation report).
This is the trigger for the Ombudsman making a report to Parliament under s 27 Ombudsman Act 1974.
Inspector of Custodial Services Amendment Act 2025, which included an amendment to insert a new Division 6A in Part 2 of the Crimes (Administration of Sentences) Act 1999.
We were later advised informally by CSNSW staff (on 9 September 2025) that:
guidance was issued to staff on 6 August 2025 about these changes, including to require that, at the end of each misconduct adjudication, inmates are to be advised of their right to request a review and provided with the Inmate Communication – Inmate discipline review if needed, and setting out the steps to be undertaken if an inmate seeks a review, and
a communication was also provided to all inmates informing them of the new right to internal review and the steps involved. This was communicated via OTAB (on inmates’ tablet devices), displayed on inmate notice boards, and raised on the agenda for Inmate Delegate Committee meetings.
For example, following the enactment in May 2025 of legislation providing for an avenue of internal review in respect of inmate discipline decisions, CSNSW (at officer level) shared with us copies of the Deputy Commissioner’s memorandum to staff and inmate communication about those changes, which were issued in August 2025.
Daily Telegraph on-line, ‘Top leadership exodus hits NSW prisons as two senior figures abruptly depart’ (12 December 2025) available at <https://www.dailytelegraph.com.au/subscribe/news/1/?sourceCode=DTWEB_WRE170_a_BIN&dest=https%3A%2F%2Fwww.dailytelegraph.com.au%2Fnews%2Fnsw%2Ftop-leadership-exodus-hits-nsw-prisons-as-two-senior-figures-abruptly-depart%2Fnews-story%2F914f8957957c3bae7d9934d8504bba42&memtype=anonymous&mode=premium&v21=GROUPA-Segment-1-NOSCORE>.
Minister for Corrections, Media release: ‘NSW Government to introduce legislation to enhance safety in prisons and better protect the community’, 3 October 2025, available at: <https://www.nsw.gov.au/ministerial-releases/nsw-government-set-to-introduce-legislation-to-enhance-safety-prisons-and-better-protect-nsw-community>.
Crimes (Administration of Sentences) Amendment (Standard of Proof) Bill 2025; see at <https://www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=18815>.
Despite apparent confusion in some media coverage, the Ombudsman did not recommend raising the standard of proof in inmate discipline matters. cf e.g., 2GB Radio, 3 October 2025, 10:24, Interview with Stuart Little, Public Service Association:
Radio host: Now, I wanted to check in with the Public Service Association this morning because there's a pretty awful story about the behaviour of prisoners in our state's correctional centres… And it's because now the threshold of proof for misconduct is being raised. And no doubt the union is concerned…
So we've had the New South Wales Ombudsman put together a report, and the Ombudsman has come back and said, look, this could lead to unlawful decisions. So we want to raise that threshold for proof of misconduct. Is that a fair assumption on what the story is?
General Secretary, PSA: That's right. And they’ve made a number of recommendations…
E.g., Corrective Services Act 2006 (Qld) s 118 provides for an ‘on the balance of probabilities’ standard to apply to minor breaches of discipline and ‘beyond reasonable doubt’ to apply to major breaches of discipline. South Australia also applies different standards of proof depending on the gravity of the conduct. Certain breaches of regulations are prescribed as ‘minor’, where the decision-maker need only be ‘satisfied’ that there has been a breach; breaches of other, more serious, regulations attract the ‘beyond reasonable doubt’ standard: Correctional Services Act 1982 (SA) ss 42A, 43.
In NSW, there was also at one time a distinction between ‘minor’ and other more serious offences. However, this distinction determined whether the charge was to be heard by the governor or was required to be heard by a visiting magistrate. In particular, from 1966 to 1999, and again from 2002 to 2004, minor offences could be heard and determined by governors (on the standard of beyond reasonable doubt) while more serious matters were required to be heard and determined by a Visiting Justice (on that same standard): see Appendix B.
Simeon Becket SC and Dev Bhutani, ‘In the matter of correctional centre discipline and the Ombudsman Act 1974: Further Memorandum of Advice’, 7 December 2023, available at <https://www.ombo.nsw.gov.au/about-us/news-events/news/information-relating-to-the-nsw-ombudsmans-recommendation-to-review-and-reform-inmate-discipline-in-nsw-correctional-centres> (the Senior Counsel advice).
During the course of the Ombudsman’s investigation, the Ombudsman had obtained (from Simeon Beckett SC and Dev Bhutani of Counsel) advice comparing NSW’s inmate discipline system with those of other jurisdictions. In that advice, Senior Counsel also put forward suggestions for ways in which the NSW inmate discipline system could, in their view, be reformed. The NSW Ombudsman provided a copy of this advice to Corrective Services NSW in July 2024.
An explicit acknowledgement of this was added to the second reading speech when the bill was introduced into the Legislative Assembly (‘While the Government recognises that the NSW Ombudsman did not support changing the standard of proof…’): Legislative Assembly Hansard, ‘Crimes (Administration of Sentences) Amendment (Standard of Proof) Bill – Second Reading Speech’, 21 November 2025, available at <https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/'HANSARD-1323879322-160626'> (the LA second reading speech).
For simplicity, we use the term ‘judge’, ‘justice’, ‘judicial officer’ and ‘magistrate’ interchangeably in this report.
Legislative Council Hansard, ‘Crimes (Administration of Sentences) Amendment (Standard of Proof) Bill – Second Reading Speech’, 14 October 2025, available at <https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/'HANSARD-1820781676-101310'> (the LC second reading speech).
This has become particularly problematic since 2018 when all aspects of correctional centre offence decisions began to be routinely delegated to staff below the governor: see special investigation report, above n. 4, at pp 44-46.
Section 53(1), Crimes (Administration of Sentences) Act 1999 (as made and up to 25 November 2025). The threshold ‘beyond reasonable doubt’ was also expressly stated in similar terms in s 56A (in respect of mobile phone offences) and s 57 (drug offences).
Corrective Services NSW, Custodial Operations Policy and Procedures (No 14.1 Inmate discipline, v.1.2, August 2024) section 3.9 at page 13.
See special Investigation report, above n. 4, at pp 46-47.
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 at [60]; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361; Jones v Sutherland Shire Council (1979) 2 NSWLR 206 at 227-228.
Brown v New South Wales Trustee and Guardian [2012] NSWCA 431 at [52].
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 at [80].
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 at [60] (citations omitted). This means, for example, that even where there is some evidence supporting the existence of a fact, and no evidence to the contrary, a fact-finder may still not be reasonably persuaded of the fact ‘on the balance of probabilities’: Brown v NSW Trustee and Guardian [2012] NSWCA 431 at [52]. It also means that the decision-maker is not required to accept one or the other version of events put before them. They may reject all versions, and conclude that there is insufficient material before them to make any finding. In that case, the party with the burden of proof has failed to discharge that burden (see Kuligowski v Metrobus [2004] HCA 34 at [60]; see also the summary of principles set out in Lehrmann v Network Ten Pty Limited [2024] FCA 369 at [90]ff).
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66.
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 at [57].
Neat Holdings Pty Limited v Karajan Holdings Pty Limited [1992] HCA 66; Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93.
Indeed, the need for training where an ‘on the balance of probabilities’ standard applies may perhaps be even greater, given that a ‘beyond reasonable doubt’ standard is one that generally requires little or no elaboration beyond its words: Green v R [1971] HCA 55.
Under current CSNSW policy, this means 26 years old or under: see special investigation report n. 4 at p 34.
Usefully, however, during debate on the Bill for the Standard of Proof Act in the Legislative Council, non-government amendments were passed to insert new provisions which will require some improvements to CSNSW’s record-keeping obligation, including to require that the documentation following a guilty finding must include
‘the following information that led to the finding of guilt—
(a) a summary of the evidence considered,
(b) the reasons for the finding of guilt, including how the finding met the standard of proof.’
NSW Parliament, Crimes (Administration of Sentences) Amendment (Standard of Proof) Bill 2025: Schedule of amendments referred to in the Legislative Council’s message of 20 November 2025, available at <https://www.parliament.nsw.gov.au/bill/files/18815/Schedule%20-%20Crimes%20(Administration%20of%20Sentences)%20Amendment%20(Standard%20of%20Proof)%20Bill%202025.pdf>.
See LC Second Reading Speech (above n. 18) and Legislative Council Hansard, ‘Crimes (Administration of Sentences) Amendment (Standard of Proof) Bill 2025 – Second Reading Debate’, 18 November 2025, available at <https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/HANSARD-1820781676-102098>.
We do not suggest that all of these arguments were necessarily put forward when debating the bill in this case, or that those supporting or opposing the bill would necessarily agree with all of the arguments in the right and left hand columns, respectively. There may also be other similar or different arguments we have not included here.
The classic rationale for the standard of ‘beyond reasonable doubt’ in the criminal justice system is the statement of Sir William Blackstone that ‘it is better that ten guilty persons escape than that one innocent suffer.’
As at December 2025, 46% of the adult prison population was on remand: Bureau of Crime Statistics and Research (BoCSAR), NSW Custody Statistics Quarterly December 2025, February 2026, available at <https://bocsar.nsw.gov.au/research-evaluations/2026/nsw-custody-statistics-quarterly-update-dec-2025.html>.
In any case, it is now well-established that imprisonment does not result in a general forfeiture of all civil rights and the protections of the law: see below n. 44.
See e.g., the discussion of reasons why inmates may not complain of officer misconduct in Special Commission of Inquiry into Offending by Former Corrections Officer Wayne Astill at Dillwynia Correctional Centre, the Hon, P McLellan AM KC, Final Report, 29 February 2024, available at <https://www.nsw.gov.au/sites/default/files/noindex/2024-03/Wayne%20Astill%20Special%20Commission%20of%20Inquiry%20-%20Final%20Report.pdf>, at pp 319ff.
This concern was raised in a letter to Minister by a range of legal and other stakeholders in relation to the Standard of Proof Act: see National Indigenous Times on-line, ‘NSW prison ‘discipline’ changes could increase First Nations deaths in custody, open letter warns’ (18 November 2025), available at <https://nit.com.au/18-11-2025/21335/nsw-prison-discipline-changes-could-increase-first-nations-deaths-in-custody-open-letter-warns>.
Historically, major riots within prisons have sometimes occurred following prisoner grievances about perceived abuses or injustices: see D Brown, ‘The Nagle Royal Commission 25 Years on: Gaining perspective on two and a half decades of prison reform’ (2004) 29 Alternative Law Journal 135, available at <https://www.austlii.edu.au/au/journals/AltLawJl/2004/37.pdf>.
It may also involve ‘solitary confinement’ under the UN Standard Minimum Rules on the Treatment of Prisoners (the Mandela Rules). The Mandela Rules define ‘solitary confinement’ as the confinement of prisoners for 22 hours or more a day without meaningful human contact. Prolonged (in excess of 15 consecutive days) or indefinite solitary confinement is prohibited by the Rules: see special investigation report, above n. 4, at pp 37-38.
Such penalties are required by policy to be applied as a ‘last resort’: but see special investigation report, above n. 4, at pp 33-34.
This contrasts with a penalty that can be imposed if a correctional centre offence is determined by a visiting magistrate, who can directly order that the inmate’s sentence by increased by up to 6 months: s 56(1)(e) Crimes (Administration of Sentences) Act 1999.
That only visiting magistrates should be able to impose a penalty ‘affecting the period of imprisonment’ was an express recommendation of the Royal Commission into Aboriginal Deaths in Custody, National Report Volume 3, at p 333 (Recommendation 180), available at <https://www.austlii.edu.au/au/other/cth/AURoyalC/1991/3.pdf>; see Appendix B.
It is now well-established that 'a convicted prisoner, in spite of his [sic] imprisonment, retains all civil rights which are not taken away [by statute] expressly or by necessary implication': Raymond v Honey [I983] 1 AC 1 at 10 per Lord Wilberforce (House of Lords); see also e.g., Patsalis v State of NSW [2012] NSWCA 307 at [51]-[53] per Basten J.
cf Momcilovic v The Queen [2001] HCA 34 at [54] per French CJ (‘The presumption of innocence has not generally been regarded in Australia as logically distinct from the requirement that the prosecution must prove the guilt of an accused person beyond reasonable doubt’).
This view is not inconsistent with an acknowledgement that, for any particular offence, it may still be open to the legislature to reverse or shift the burden of proof in respect of a fact in issue to be proved: see e.g., Kuczborski v Queensland [2014] HCA 46 at [240]ff.
John Howard Society of Saskatchewan v Saskatchewan (Attorney General) 2025 SCC 6.
Section 11 of the Canadian Charter of Rights and Freedoms guarantees, among other things, that all persons ‘charged with an offence’ have the right to be presumed innocent until proven guilty, which the Supreme Court of Canada has long held requires guilt to be proven beyond a reasonable doubt: Ibid.
Ezeh v The United Kingdom (2003) 39 EHRR 1, referred to the Grand Chamber from Ezeh v The United Kingdom (2002) 35 EHRR 691.
That case was concerned specifically with the right in clause 6(3)(c) to legal representation.
See Prison (Amendment) Rules 2002 (UK), which amended the Prison Rules 1999 (UK) in August 2002, following the 2002 decision and prior to the decision of the Grand Chamber in 2003.
In considering the decisions of the European Court of Human Rights and the Supreme Court of Canada, it may also be relevant that NSW no longer has a system of ‘remitting’ sentences, noting that the effect of inmate discipline offences on earned remission was an important consideration in those cases. While the behaviour of inmates in NSW, including any findings of guilt for correctional centre offences, can affect parole decisions in NSW, this is one of a number of considerations and there is no direct or automatic loss of any ‘earned’ entitlement to parole as a result of a conviction for a correctional centre offence: see <https://paroleauthority.nsw.gov.au/parole-in-nsw/parole-process/parole-consideration.html>.
LC Second Reading Speech, above n. 18.
Public Service Association of Australia, Prison Officers Vocational Branch direction Inmate Discipline Matters, 2 October 2025, available at <https://psa.asn.au/direction-for-povb-members/>. (The direction was to refer such matters to either a visiting judge or police.)
Garlett v Western Australia [2022] HCA 30 at [184]; Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1 at [69].
DPP v Hamzy [2019] NSWCA 314 at [76] (‘If the governor finds the inmate guilty of a correctional centre offence, the decision is an administrative decision; it is not a conviction… the decision of the governor does not have the status of a judicial determination.’) See also Senior Counsel advice, above n. 15 at [129].
There is obiter to suggest that it might even be possible for a legislative scheme to provide for judges (acting persona designata) to make such decisions in an administrative rather than judicial capacity: see Stratton v Parn [1978] HCA 5 at [21]. (However, that case pre-dates the development of the Kable doctrine, discussed below).
See also more generally: YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40 at [177] (‘Whilst it is clearly the case that only judges may punish a person with State detention upon that person being found guilty of an offence, it does not follow from this that any law which may be characterised as punitive, in some way, can only ever be enforced as an exercise of judicial power’, citing Gleeson CJ in Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49 at [283]: ‘Punishment, in the sense of the inflicting of involuntary hardship or detriment by the State, is not an exclusively judicial function.’
There is also a well-established distinction between a judge exercising judicial power in sentencing, and the executive determining whether an eligible prisoner may be given parole, with the view taken that, once a person is sentenced, the judicial power is ‘spent’ and responsibility for a prisoner's future release from prison within that sentence ‘passes to the executive branch’: see Cherry v Queensland [2025] HCA 14 at [41], citing Minogue v Victoria [2019] HCA 31 at [14].
A decision by a visiting magistrate to impose a penalty of increasing an inmate’s actual sentence (see above n. 43) is expressly done in the exercise of the court’s criminal jurisdiction under the Crimes (Sentencing Procedure) Act 1999.
This has been variously described as, for example, requiring that courts be and appear to be independent and impartial tribunals (see e.g., North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31 at [29]; Condon v Pompano Pty Ltd [2013] HCA 7 at [183]; (2013) CLR 38; that they remain institutions appropriately established for the administration of justice (see e.g., Fardon v Attorney-General (Qld) [2004] HCA 46 at [23], [37], [101] [198], and [219]), and that they retain the defining characteristics of a court (see e.g. Forge v Australian Securities and Investments Commission [2006] HCA 44 at [63]).
Sometimes referred to as the ‘institutional integrity’ or Kable doctrine, after the seminal case of Kable v Director of Public Prosecutions for New South Wales [1996] HCA 24.
Condon v Pompano Pty Ltd [2013] HCA 7 at [183]; (2013) 252 CLR 38 at 106.
Note that the recent legislative amendments did not affect the functions conferred on visiting magistrates, including:
it is only visiting magistrates who have the power to impose a penalty that involves an extension to an inmate’s sentence,
the ‘beyond reasonable doubt’ standard remains when decisions are made by visiting magistrates,
there is a right of appeal to a higher court from decisions of visiting magistrates.
cf North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41. In this case the High Court held that a law allowing police to detain a person for 4 hours for public intoxication, with an extension of time possible where the person still appeared intoxicated, was not unconstitutional. The majority of the Court accepted that the provision did not authorise ‘punitive detention’ or confer ‘judicial power’ on Police officers. Arguments that were put forward concerning the ‘impairment of the institutional integrity of the courts’ (Kable) doctrine did not arise. In dissent, Gageler J considered that the form of executive detention was punitive and, as such ‘involves the exercise of a function which our constitutional tradition treats as pertaining exclusively to the exercise of judicial power’ [at 103].
See Appendix B.
Contrast the situation regarding military justice, where cl 51((vi) (the defence power) of the Commonwealth Constitution has been held to authorise a military disciplinary system that is separate from the judicial system established by Chapter III of the Constitution: R v Cox; ex parte Smith [1945] HCA 18 (per Dixon J); White v Director of Military Prosecutions [2007] HCA 29; cf Lane v Morrison [2009] HCA 29.
From whose decision an appeal lies to higher courts: see s 62 Crimes (Administration of Sentences) Act 1999.
The current legislation makes clear that the Criminal Procedure Act 1986 and the Crimes (Appeal and Review) Act 2001 apply when visiting magistrates hear correctional, centre offences: s 55 and 62 Crimes (Administration of Sentences) Act 1999.
Visiting magistrates can impose an additional penalty that is not open to governors or their delegates to impose: a direct extension of up to 6 months on an inmate’s sentence: see above n. 43. When doing so, the magistrate is exercising the criminal jurisdiction of court under the Crimes (Sentencing Procedure) Act 1999.
As noted above, when introducing the current legislation the Government explicitly described the referral pathway to visiting magistrates as an important ‘safeguard’: see above n. 52. In considering whether institutional integrity has been impaired, courts have been particularly concerned with legislative schemes that seek to leverage public confidence in the courts to bolster what is essentially executive action: South Australia v Totani [2010] HCA 39 at [479].
See the dissenting judgment of Gageler J in North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41. Considering a legislative scheme that authorised Police to imprison people for public intoxication, his Honour concluded (at [134]):
Courts of the Northern Territory are thereby made support players in a scheme the purpose of which is to facilitate punitive executive detention. They are made to stand in the wings during a period when arbitrary executive detention is being played out. They are then ushered onstage to act out the next scene. That role is antithetical to their status as institutions established for the administration of justice.’
For simplicity we use the term ‘governor’, despite previous titles (e.g., ‘superintendent’).
During this period, the decision of R v Fraser (1977) 2 NSWLR 867 was handed down. That decision confirmed that internal disciplinary proceedings presided over by visiting magistrates were adjudicating a 'punishment' within the meaning of the Justices Act 1902. This meant, among other things, that a right of appeal lay to the District Court. In that case, the punishment was 7 days cell confinement. See also Cerinich v Cerinich [1980] 1 NSWLR 314.
Nagle, J.F. (31 March 1978) ‘Report of the Royal Commission into New South Wales Prisons, Volumes I, II and III’ Sydney: New South Wales Government Printer, available at <https://web.archive.org/web/20180506050118/http:/www.justiceaction.org.au/images/stories/CmpgnPDFs/naglerpt301112.pdf>.
After its Commissioner, Supreme Court Justice the Hon. John Nagle.
Prisons (Amendment) Act 1993 No. 89 (Sch 4 item 12).
Royal Commission into Aboriginal Deaths in Custody, National Report Volume 3, at p 333 (Recommendation 180), available at <https://www.austlii.edu.au/au/other/cth/AURoyalC/1991/3.pdf>.
It appears that the Commission here was referring both to charges that may result in a change to an inmate’s sentence as well as charges that may impact matters such as remission, although there is some ambiguity in the preceding discussion. The Commission referred to a submission that proposed that ‘any charge which might result in a penalty of a period of detention in a place other than the prisoner’s normal accommodation, or that might result in any loss of remission, or effect [sic] the period of a prisoner’s incarceration must be heard before a magistrate or judge”. The Commissioner responded that ‘I am unclear about the ramifications of the first of these proposals but support the second’: Ibid, at p. 333.
The Crimes (Administration of Sentences Act 1999 was introduced cognate with two other pieces of legislation, that were primarily concerned with reforms to sentencing laws, in response to a 1996 report of the Law Reform Commission, that had no relevance to inmate discipline.
Crimes (Administration of Sentences) Amendment Act 2001 No. 83.
Legislative Assembly Hansard, ‘Crimes (Administration of Sentences) Amendment Bill – Second Reading’, 19 September 2001, available at <https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/HANSARD-1323879322-92730>.
Legislative Assembly Hansard, ‘Crimes (Administration of Sentences) Amendment Bill – Second Reading Debate’, 17 October 2001, available at <https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/HANSARD-1323879322-25394>.
Crimes (Administration of Sentences) Amendment Act 2004 No. 47.
The 2004 Act also made provision for hearings before visiting magistrates to occur by audio-visual link: see s 55 Crimes (Administration of Sentences) Act 1999.
The maximum number of days for which a governor may deprive an inmate of withdrawable privileges was increased from 28 to 56, and the number of days for which a governor may confine an inmate to cell was increased from 3 days to 7 days: see s 53 Crimes (Administration of Sentences) Act 1999.
Legislative Assembly Hansard, ‘Crimes (Administration of Sentences) Amendment Bill – Second Reading Debate’, 4 June 2004, available at <https://www.parliament.nsw.gov.au/bill/files/741/A4704.pdf>.
See special investigation report, above n. 4, at pp 45-46.
Crimes (Administration of Sentences) Amendment (Standard of Proof) Act 2025 No. 6.
LA Second Reading Speech, above n. 16.
See ss 56, 56A(1A) and 57(2A) Crimes (Administration of Sentences) Act 1999.
We acknowledge the traditional custodians of the land on which we work and pay our respects to all Elders past and present, and to the children of today who are the Elders of the future.
Artist: Jasmine Sarin, a proud Kamilaroi and Jerrinja woman.