‘Kangaroo court’: The unjust prison disciplinary process

The disciplinary process within prisons has repeatedly been found to be opaque and unjust, and in several jurisdictions there is no avenue to appeal the decisions which can have huge ramifications.

A new report into the prison disciplinary process in New South Wales has found “maladministration at all steps” and an urgent need for a right to appeal these decisions.

It backs up similar findings about the disciplinary processes in Victorian prisons, which found hearings in correctional centres to be opaque and unjust.

But both state governments have declined to make any signficant changes to the disciplinary process within process, or to introduce a right of review or appeal.

The disciplinary process within Australian prisons can have huge ramifications.

Being charged with a “correctional centre offence” can lead to a loss of visitation rights or being confined to a cell, and can even have an impact on a parole implication.

But across Australia, the disciplinary processes in prisons are opaque, unjust and in many jurisdictions there is no realistic way to appeal or review a decision once it is made.

This process relates to situations where someone in prison has been alleged to have committed a “correctional centre offence”, which can range from drug offences, theft, a failure to clean yards and entering another cell.

These are administrative rather than criminal proceedings, and can result in someone in prison being reprimanded, losing certain privileges such as visits and being confined to their cell. Adverse findings can also impact security classifications, placements and parole board decisions.

‘Maladministration at all steps’

Despite the importance of these proceedings and their huge impact on individuals, Australia’s two largest jurisdictions do not offer any real avenue to appeal these decisions.

A recent investigation by the NSW Ombudsman into inmate discipline in the state’s prisons found a “systemic failure” across all correctional centres to “follow the requirements of the legislation and the relevant policies in relation to inmate discipline”.

“In many cases, the systemic failure we investigated is leading to unjust outcomes and potentially unlawful decisions,” NSW Ombudsman Paul Miller said.

“This is compounded by the fact that inmates currently have no external review rights on a disciplinary determination other than the theoretical possibility of applying to the Supreme Court for judicial review, while internal reviews are limited in scope, legally uncertain and largely inaccessible.”

The Ombudsman found a range of issues surrounding the disciplinary process within NSW prisons, including numerous instances of people being convicted of offences where it was clearly not possible for them to be proved beyond reasonable doubt, those with intellectual disabilities not given support to ensure fair enquiries and inmates being required to pay compensation for property damaged in excess of the maximum amount that can be lawfully imposed.

The inquiry found “maladministration at all steps in the disciplinary process”.

A key concern from the investigation was the lack of a legislated right of review or appeal for decisions made during these disciplinary processes, something the Ombudsman found was “inherently unfair”.

The Ombudsman recommended a comprehensive review be conducted into the inmate discipline system in NSW and legislative changes to improve the fairness and effectiveness of this process. These reforms should include the introduction of legislated internal and external appeals rights, the Ombudsman urged.

The NSW government is yet to formally respond to the report but has confirmed it has commenced a review of the inmate discipline system.

Judged by their keeper

There is also no right to appeal disciplinary decisions in Victorian prisons. An investigation by the Victorian Ombudsman in 2021 found that the only avenue for appeal is through a judicial review at the Supreme Court.

This is a very complicated, expensive and inaccessible option that is extremely rare, with only two people in prison going down this path in the last five years.

“The closed nature of the prison disciplinary process in Victoria means decisions and processes are not subject to routine independent scrutiny,” the Ombudsman report said.

“In what other system is someone directed to the Supreme Court when their alleged transgression has been judged by their keeper?”

“Providing prisoners with an appropriate internal review process would promote greater fairness in the hearing process and go some way towards mitigating other risks identified in this report.”

The Ombudsman found that the disciplinary process in Victorian prisons is carried out in the dark, with insufficient scrutiny, oversight and transparency.

The Victorian government responded by saying it would consider these recommendations as part of a cultural review into Victorian prisons.

This review, completed last year, backed up the Ombudsman’s recommendations.

“Given the potential consequences for people in custody, we support access to a merits review process to increase procedural fairness and the quality of decision-making,” the cultural review said.

“This is consistent with research that has found that adjudications in prison work best when they are swift, transparent, fair and used alongside rewards for good behaviour and efforts to reform.”

The review quoted one person in prison as saying the disciplinary hearings are a “kangaroo court where a guilty verdict is always the outcome no matter the circumstances”.

The Victorian government declined to support this recommendation, instead saying it would develop a new training program for staff on disciplinary processes, and review a sample of hearings each month to “ensure proportionate and consistent disciplinary actions”.

In contrast to Victoria and New South Wales, Queensland does provide an avenue for people in prison to appeal disciplinary decisions made against them.

This review must be conducted by a corrective services officer who holds a more senior office than the original deciding officer, and this person must re-hear the material and hear any further evidence.

The ACT also allows for an individual to apply to the director-general for a review of a disciplinary decision.

In New Zealand, a person in prison has the ability to appeal to a visiting justice up to two weeks after a disciplinary decision.