The NSW Government has moved to make it easier to find incarcerated people guilty of a “prison offence”, against the advice of independent experts.
A “prison offence” includes a range of offences, from serious charges to not keeping a cell “tidy and orderly” and failing to maintain “personal cleanliness”. People in prison in NSW face losing privileges – such as accessing the buy-up, phone calls and visits – for up to 56 days if it is found that “on the balance of probabilities” they committed a prison offence.
The current requirement is for the decision-maker to be sure “beyond reasonable doubt” that an offence had taken place in order to find someone guilty and strip them of privileges. This bar will be lowered under reforms put forward by the NSW Government.
Independent legal advice given to the state government last year instead recommended for prison offences to be divided into “minor” and “major” ones, with different burdens of proof applied. It also called for more diversionary options and improved review avenues if someone is found guilty.
Last year, the NSW Ombudsman found that the current standard of proof was being applied incorrectly in many cases but did not recommend that it be lowered.
Aboriginal Legal Service (NSW/ACT) CEO Karly Warner said the organisation is concerned that the government is “weakening protections for people who are incarcerated”.
“These amendments infringe on the rights of imprisoned people and fly in the face of the NSW Ombudsman’s recommendations to improve fairness in the prison disciplinary system,” Warner told About Time.
“Instead of following the ombudsman’s expert advice, the government is doing the opposite of what was recommended, with no regard for the safety and wellbeing of those locked in NSW prisons.”
Most other states and territories require it to be proven that someone committed a prison offence on the “balance of probabilities”, but several apply this standard only to minor offences and the higher standard to major ones.
Punishments for prison offences also vary across Australia.
In NSW, privileges such as visitation and access to buy-up and phone calls can be withdrawn for up to 56 days or up to 6 months if the offence involves a mobile phone.
In Victoria, privileges can be removed for 14 days or a maximum of 30 days for multiple offences, while in Queensland the penalty can be up to 24 hours for minor offences and up to 7 days for a major offence.
Punishment sentences are by far the longest in the ACT, where privileges can be removed for up to 180 days.
The independent advice provided to the NSW Government and written by Simeon Beckett SC and Dev Bhutani, from Maurice Byers Chambers, recommended changes to the prison discipline process to “promote fairness and just outcomes for prisoners” and the “just, efficient and quick operation of the disciplinary process”.
It recommended that the higher bar of “beyond reasonable doubt” remain for prison offences deemed to be “major”.
“Our view is that, because correctional centre offending is considered as part of the parole purpose and may have the effect of prolonging a period of imprisonment, the higher standard of proof should apply for a major offence,” the advice said.
The state government did not agree to this recommendation and has instead introduced legislation to NSW parliament lowering the bar to find someone guilty of any prison offence.
Most other states and territories require it to be proven that someone committed a prison offence on the “balance of probabilities”, but several apply this standard only to minor offences and the higher standard to major ones.
Punishments for prison offences also vary across Australia.
In NSW, privileges such as visitation and access to buy-up and phone calls can be withdrawn for up to 56 days or up to 6 months if the offence involves a mobile phone.
In Victoria, privileges can be removed for 14 days or a maximum of 30 days for multiple offences, while in Queensland the penalty can be up to 24 hours for minor offences and up to 7 days for a major offence.
Punishment sentences are by far the longest in the ACT, where privileges can be removed for up to 180 days.
The independent advice provided to the NSW Government and written by Simeon Beckett SC and Dev Bhutani, from Maurice Byers Chambers, recommended changes to the prison discipline process to “promote fairness and just outcomes for prisoners” and the “just, efficient and quick operation of the disciplinary process”.
It recommended that the higher bar of “beyond reasonable doubt” remain for prison offences deemed to be “major”.
“Our view is that, because correctional centre offending is considered as part of the parole purpose and may have the effect of prolonging a period of imprisonment, the higher standard of proof should apply for a major offence,” the advice said.
The state government did not agree to this recommendation and has instead introduced legislation to NSW parliament lowering the bar to find someone guilty of any prison offence.
