By Paul Gregoire and Ugur Nedim
The New South Wales parliament passed legislation on 21 November 2025 which lowers the standard of proof that applies to determinations of correctional centre offences made by prison governors relating to offences, so that the criminal standard of “beyond a reasonable doubt” is now the civil standard of being “satisfied on the balance of probabilities”.
The Crimes (Administration of Sentences) Amendment (Standard of Proof) Bill 2025 reduces the burden of proof to the civil standard in respect of correctional centre offences that range from minor to major transgressions, and can have bearing on “an inmate’s placement, classification, access to external leave programs and parole”.
The laws have served to align the standard of proof that applies in NSW correctional facilities with that which applies in all other Australian jurisdictions, without defining why it’s of benefit. Further citied reasoning involved an internal review undertaken by Corrective Services NSW finding that its staff were already mistakenly applying the balance of probabilities when determining offences.
The amendment comes in the wake of a damning assessment of the “administration of the NSW inmate disciplinary system” released by the NSW Ombudsman in August 2024. The watchdog found that a “systemic failure” had developed in the NSW system to the point that the provision of the Crimes (Administration of Sentences) Act 1999 (NSW) and relevant policies were being disregarded.
The second reading speech presented on behalf of NSW corrections minister Anoulack Chanthivong further explained that the process of governors assessing correction centre offences is administrative in nature and not judicial, and as it neither involves the rules of evidence or any legal representation for inmates, the minister implied that the lower threshold of proof better aligns with this model.
The NSW inmate disciplinary system
The NSW Ombudsman report sets out that there are 71 correctional centre offences contained in part 3 divisions 3 and 4, along with schedule 2 of the Crimes (Administration of Sentences) Regulation 2014 (NSW).
Such offences include serious wrongdoing like assaults, drug offences, theft and property damage, as well as more disciplinary matters with transgressions involving the disobeying of a direction or a failure to clean the prison yard.
“Inmate disciplinary processes are administrative in nature, and do not result in criminal charges, convictions or sentences,” the Ombudsman explained. “If found guilty of a correctional centre offence, the penalties that can be imposed include reprimand and caution, deprivation of certain privileges…, confinement to cell… and cancellation of the right to receive payments for work done.”
These findings, however, can have bearing on where an inmate is placed, how they’re classified in the system and it can even impact release on parole. So, conditions inside and length of stay are subject to change due to these administrative findings. Some corrections offences are criminal in nature, and while serious prison offences warrant police attention, most are dealt with internally.
In terms of what occurs after a corrections officer reports inmate misconduct, this then leads to a decision on charging, followed by the opportunity for the inmate to make a plea, then determination of guilt is made based on the standard of beyond reasonable doubt, before a final decision is made on punishment. This process is performed by a single delegate appointed by a prison governor.
The Ombudsman’s inquiry found “maladministration at all steps in the disciplinary process”. These failures include findings of guilt that weren’t open to be made, pleas of guilt entered without inmate consent, some serious offences not being reported to police, referrals to drug intervention programs not being made and behaviour warranting mental health support being punished instead.
NSW Ombudsman Paul Miller recommended that reforms to the inmate disciplinary system should not involve “watering down the standards or rules themselves in a way that would adversely affect the rights of inmates overall, such as by a general reduction in the standard of proof required for offences or by curtailing the rights of inmates to fairly participate in the inquiry”.
The guts of the bill
Chanthivong further set out in his speech that the Minns government recognised that the NSW Ombudsman had provided a completely different solution to that progressed by NSW Labor, which appears to comprise of the acceptance that corrections disciplinary hearings are often wrongly conducted to the balance of probabilities, and therefore, why not just make that the standard.
The major amendment the bill makes is to section 53 of the Crimes (Administration of Sentences) Act (CAS Act), which provides that a governor may impose one of a number of punishments upon an inmate found guilty of a corrections centre offence, only after a finding has been made to the beyond reasonable doubt standard, so that it will now applies to the civil balance of probabilities standard.
An amendment has been made to section 56A of the CAS Act in respect of an inmate being found in possession of a mobile phone, so that the correction centre offence specifically notes that guilt is based on the balances of probabilities, and this same amendment was made to section 57 of the Act, so that it’s clear the civil standard applies to drug tests carried out on prisoners.
Section 65 of the CAS Act is being updated, so the definitions relating to reviews of correctional centre offence decisions stipulate that the governor makes them based on the balance of probabilities.
A further NSW Greens progressed amendment was made to section 273 of the CAS Act, which comprised of a requirement to conduct a 2 year review of the standard of proof amendments, and this should involve a focus on whether natural justice or procedural fairness is being curbed by these measures, as well as how they comply with young Aboriginal protections.
Risking further deaths in custody
A coalition of First Nations justice organisations and legal groups raised concerns about the lowering of the standard of proof in respect of correctional centre offences, warning that these sorts of laws will increase the risk of “acute and ongoing mental and physical harm, and even dying in custody”, because such risks are increased by prison punishments, such as solitary confinement.
These organisations included the Aboriginal Legal Centre NSW/ACT, NSW Council for Civil Liberties, the National Justice Project, Deadly Connections, Justice Action, Sisters Inside, Change the Record, Inner City Legal Centre, Jailing Is Failing and Redfern Legal Centre.
These legal and rights focused organisations further underscore that these measures were introduced into parliament during the same week in October that saw NSW coroner Teresa O’Sullivan announce a “profoundly distressing milestone”, which involved 12 Aboriginal and Torres Strait Islander people having died in custody this year, which is the highest number ever recorded.
The 11 November 2025 statement warns that those predominately punished wrongly in respect of correction centre offences are First Nations inmates experiencing mental health issues or disabilities.
The Ombudsman found 1 in 3 charges laid were incorrect, while three-quarters of those punished are vulnerable inmates suffering mental health conditions or disabilities and 43 percent of those punished are Aboriginal people.
“This bill will not solve the problems which have prevented Corrective Services NSW from correctly administering these proceedings to the appropriate criminal standard,” the organisations underscored, “rather, it will entrench the dysfunction and harm that impacts workers and incarcerated people alike.”
“Given these changes will increase the risk of First Nations deaths in custody, increase the risk of repeat contact with the system and increase the likelihood of systemic injustice against incarcerated people who deserve support, education and rehabilitation, we urge you to rethink these reforms,” the coalition put to parliament prior to these measures being passed into law.
