Crimes (Administration of Sentences) Regulation 2014

The Regulation’s reach is wide.

Inmates fall into four statutory classes (cl 33): convicted, unconvicted, civil and (since 2017) Commonwealth post-sentence terrorism inmates and NSW post-sentence inmates. Within those classes further sub-categories are created by the classification system (cll 12–14A), the high-security, extreme-high-security, extreme-high-risk-restricted and national-security-interest designations (cl 15), and the life-imprisonment classification (cl 14A). Each category carries distinct placement, visit, correspondence and management consequences. An extreme high risk restricted inmate, for example, may be visited only by persons pre-approved by the Commissioner (cl 94), must speak only English or an approved language during visits (cl 101), and all correspondence (except to exempt bodies) must be in English or an approved language and is subject to reading and copying (cl 115).

Correctional officers and departmental officers are subject to the Commissioner’s instructions (cl 3(1)), must obey all lawful directions of the governor (cl 242(3)–(4)), must comply with the oath or affirmation of office (cl 241), and are bound by the conduct rules in Part 16 (honesty, vigilance, no insulting language, no bribery). They are also the persons who may lawfully require inmates to undergo breath tests or supply drug-test samples (cll 157, 159–160) and who may use force or restraining equipment in the circumstances set out in cll 131–132.

The Commissioner is the central decision-maker. The Commissioner classifies inmates (cl 11), designates high-security and extreme-high-risk-restricted inmates (cl 15), adopts case plans (cl 29), issues visitor’s permits (cl 87), bars visitors (cl 108), prevents correspondence with restricted associates (cl 112A), suspends supervision conditions (cl 218), and may release certain low-risk inmates on parole under the emergency COVID-19 power in s 276 of the Act (cl 330). The Commissioner also maintains the Victims Register and decides what information may be disclosed under s 257A of the Act (cl 326).

The Review Council plays a statutory gatekeeper role for serious offenders, escape-risk inmates and high-security or extreme-high-risk-restricted inmates. Its recommendations must be sought before the Commissioner can downgrade an escape-risk classification, vary a high-security designation or change a serious offender’s classification (cl 17). The Council also reviews governor’s reports on placement (cll 21–23) and case plans (cll 28–29) and provides advice to the Commissioner on the management of high-risk inmates (cl 311).

Justice Health and Forensic Mental Health Network staff are integrated into the regime through the concepts of “prescribed health officer” and “nursing officer”. They conduct reception examinations (cl 284), report on inmates who present a risk to self or others (cl 285), advise on diet and treatment (cl 287), maintain medical records (cl 288) and report deaths (cl 291).

Victims recorded on the Victims Register receive preliminary notice of any proposal to change a serious offender’s security classification (cl 324) and may make submissions to the Review Council. They are also entitled to notice before a serious offender is released on parole (s 145 of the Act, implemented by cl 227).

Community corrections officers, electronic monitoring officers and supervisors of community service work exercise the day-to-day supervisory functions over offenders subject to intensive correction orders, community correction orders, conditional release orders and parole (Part 10, cll 187–189H, 214A). They may suspend supervision conditions (cl 218) and prepare breach reports for the court (cl 329).

The Parole Authority (and, for compulsory drug treatment detainees, the Drug Court) makes the final decision on release on parole, revocation and variation of conditions. The Regulation supplies the standard conditions (cl 214), the procedure for review of revocation (cl 235) and the content of reinstatement reports (cl 190).

External bodies declared to be “exempt bodies” (cl 3(1))—the Ombudsman, ICAC, Legal Aid Commission, Commonwealth Ombudsman, Australian Human Rights Commission and others—receive privileged correspondence that cannot be opened or read (cll 112–113, 115). Legal practitioners also receive special protections for correspondence relating to an inmate’s legal affairs (cl 115(4)).

The Regulation therefore affects every participant in the corrective services ecosystem: inmates and their families, custodial and community staff, health professionals, oversight bodies, victims, courts and the Commissioner.

Inmate duties are expressed both positively and negatively. Positive duties include compliance with correctional centre routine (cl 39), attendance at musters (cl 41), keeping property tidy (cl 47), maintaining personal cleanliness (cl 56), wearing issued uniform (cl 57), keeping cells clean (cl 58), participating in case-plan programs (cl 61), and obeying all lawful directions (cl 130). Negative duties prohibit possession of prohibited goods (cl 45), creation or possession of offensive weapons (cl 137), assault, fighting or intimidation (cll 138–141), gambling (cl 147), possession or consumption of alcohol or drugs (cll 148–151), and correspondence with restricted associates (cl 112A).

Inmate rights are more limited but still significant. Every inmate must be informed of correctional centre rules, obligations, rights of appeal, the case-management process, how to complain, the role of Official Visitors and the functions of the Review Council (cl 5). Foreign nationals are entitled to have their diplomatic representative notified (cl 6). Inmates may refuse visits (cl 79), correspond with exempt bodies without censorship (cl 113), and request review of placement, classification or case plan (cl 32). Religious observance is protected (cll 63–73). Access to legal practitioners is preserved (cll 82, 103, 118). Medical care, including dental and optical treatment, must be provided (cl 54). At least two hours of daily exercise (one hour for those confined to cell under ss 53 or 56 of the Act) must be allowed (cl 53).

Correctional officer duties include compliance with the Commissioner’s instructions and the governor’s directions (cl 242), honesty and vigilance (cll 251–252), maintenance of order with no more force than necessary (cl 131), accurate reporting of use of force (cl 133), and proper handling of keys and firearms (cll 246, 296–298). Officers must not use insulting language (cl 249), accept bribes (cl 155) or obstruct dogs used for security (cl 143).

Commissioner’s duties are largely discretionary but include ensuring classification occurs (cl 11), adopting case plans (cl 29), reviewing placements annually (cl 20(3)), maintaining the register of correspondence for extreme-high-risk-restricted and national-security-interest inmates (cl 117), and considering recommendations of the Review Council before varying certain classifications or designations (cl 17).

Review Council duties are both mandatory and discretionary. The Council must review governor’s reports on placement of serious offenders or high-security inmates (cl 22) and reports on case plans for those inmates (cl 28). It must be consulted before the Commissioner removes an escape-risk classification, varies a high-security designation or changes a serious offender’s classification (cl 17(1)). The Council may make submissions to the Commissioner and recommend reconsideration of decisions made in exceptional circumstances (cl 17(6)).

Victims’ rights centre on notification and submission. Victims on the Victims Register must be given preliminary notice of any proposal to change a serious offender’s security classification (cl 324) and notice before parole is considered (cl 227). They may make written submissions to the Review Council.

Health staff duties are set out in Part 18. Prescribed health officers must examine every inmate on reception (cl 284), report inmates who present a risk to self or others (cl 285), advise on diet and treatment (cl 287), maintain confidential medical records (cl 288) and report deaths (cl 291).

The Regulation balances these duties and rights through a combination of prescriptive rules, procedural safeguards (e.g. mandatory review every 12 months for classification and placement), independent oversight (Official Visitors, Review Council, Ombudsman) and privileged communication channels for exempt bodies.

Enforcement inside correctional centres rests on the concept of “correctional centre offence”. Clause 127 declares that any contravention (by act or omission) of a provision of the Act, an order or direction made under the Act, or any of the provisions listed in Schedule 2 is a correctional centre offence. Clause 128 extends the concept to attempts. The Schedule 2 list is long: it includes failure to surrender property on reception (cl 7), entering another inmate’s cell (cl 40), possessing prohibited goods (cl 45), damaging issued clothing or bedding (cl 58), corresponding with a restricted associate (cl 112A), using or possessing a mobile phone (cl 122), tattooing (cl 146), gambling (cl 147), possessing or consuming alcohol or drugs (cll 148–151), failing a prescribed drug test (cl 153), and smoking in a non-smoking area (cl 154).

Punishments are limited. Clause 164 prohibits dark cells, mechanical restraint as punishment, solitary confinement (subject to defined exceptions), corporal punishment, torture or cruel, inhuman or degrading treatment. Available sanctions are therefore withdrawal of the “withdrawable privileges” listed in cl 163 (films, television, hobbies, contact visits, telephone use other than to lawyers, etc.), segregation, or, for serious offences, referral to a Visiting Magistrate who may impose up to 14 days’ withdrawal of privileges or, in extreme cases, prosecute the inmate for a criminal offence.

Outside the prison fence, enforcement of community-based orders is by breach report to the court (cl 329). The court may vary or revoke the order, add conditions, or, in the case of an intensive correction order, revoke it and re-sentence. Parole is enforced by the Parole Authority. Breach of a standard condition (cl 214) or a supervision condition (cl 214A) can lead to revocation under s 170A of the Act. The Authority must give the offender notice of revocation (cl 235) and an opportunity to make submissions before confirming the revocation (s 175 of the Act).

Firearms discipline is strict. Any discharge other than on an approved training course must be reported to the governor or, in the case of escort duty, to a police officer and the governor or Security Unit commander (cl 305). The Commissioner may hold an inquiry and must report the findings to the Minister.

Civil penalties are rare. The only direct monetary penalty in the Regulation is the five-penalty-unit fine for failing to return an expired visitor’s permit (cl 89) or breaching conditions of a visitor’s permit (cl 91). All other sanctions are internal (withdrawal of privileges, segregation, revocation of parole or community order) or criminal (assault, escape, possession of drugs).

The enforcement regime is therefore predominantly administrative, hierarchical and discretionary, tempered by procedural fairness requirements, mandatory annual reviews and external oversight.

The Regulation is expressly subordinate to the Act. Clause 3(1) defines “the Act” as the Crimes (Administration of Sentences) Act 1999. Almost every substantive clause begins with the words “For the purposes of the Act…” or contains a direct cross-reference (e.g. cl 46 invokes s 79(1)(r); cl 197 invokes s 106ZA(1)(a) and (g)).

It also intersects with a wide range of other statutes. Classification and placement decisions must have regard to sentencing remarks made under the Crimes (Sentencing Procedure) Act 1999 (cl 20(1)(b)). Drug definitions incorporate the Drug Misuse and Trafficking Act 1985 and the Poisons List under the Poisons and Therapeutic Goods Act 1966 (cl 3(3)). High-risk-offender provisions cross-reference the Crimes (High Risk Offenders) Act 2006 and the Terrorism (High Risk Offenders) Act 2017 (cll 31, 189F–189G). The Mental Health Act 2007 is engaged for forensic patients (cl 33(3)(c)) and for the administration of treatment without consent (cl 131(i2)). The Legal Profession Uniform Law (NSW) defines “legal practitioner” (cl 3(1)). The Road Transport Act 2013 supplies the definition of “analyst” for breath testing (cl 3(1)).

Commonwealth legislation is also picked up. The Ombudsman Act 1976 (Cth) establishes the Commonwealth Ombudsman, an exempt body (cl 3(1)). The National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) is indirectly engaged through the national-security-interest inmate provisions (cl 15(3A)) and the confidentiality safeguards in cl 314(2).

The Regulation itself has been amended to accommodate later statutes. The 2017 amendments inserted references to the Terrorism (High Risk Offenders) Act 2017 and the Crimes (High Risk Offenders) Act 2006 in the definitions of “restricted associate” and in the obligations imposed on high-risk offenders (cll 3(1), 20(1)(g)). The 2018 substitution of Part 10 implemented the new community-based order regime created by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017.

Procedural statutes are also relevant. The Interpretation Act 1987 supplies definitions and construction rules (note to cl 3(1)). The Government Sector Employment Act 2013 governs the employment and discipline of correctional and departmental officers (cll 242, 254, 281). The Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 constrain the use of biometric data collected under cl 320 and medical records kept under cl 288.

The Regulation therefore functions as the operational hub of a much larger statutory constellation. It cannot be read in isolation; every clause must be read against the enabling Act and the interlocking legislation to which it constantly refers.

The Regulation has been amended more than 20 times since 2014. Several clusters stand out.

The 2015–2018 amendments responded to terrorism and high-risk offender concerns. Clause 15 was expanded to allow designation of “extreme high risk restricted” and “national security interest” inmates (2015 (662), 2017 No 68). New clauses 94, 101, 115–117, 119 and 122A–122M introduced stricter visit, correspondence, telephone and device rules for these inmates. The definition of “restricted associate” was inserted to prevent contact with persons named in suspended or expired supervision orders (2017 (420)).

The 2018 overhaul of community-based orders (2018 (536)) replaced the old periodic-detention and home-detention schemes with the new statutory suite of intensive correction orders, community correction orders and conditional release orders. Part 10 was completely rewritten. Standard conditions, supervision obligations, curfew, community service work, rehabilitation, abstention, non-association and place-restriction conditions were spelled out in cll 186–189H. Breach procedures were codified in cl 329. Clause 190 was amended to require a reinstatement report before the Parole Authority could re-impose an intensive correction order with a home-detention or community-service-work condition.

Gender-identity reforms arrived in 2026 (36). Clause 3A now permits classification as male or female having regard to safety, security and “other factors the decision-maker considers relevant”. Consistency with birth-certificate sex, self-identified gender or physical characteristics is expressly not required.

The COVID-19 pandemic produced temporary provisions in Part 23 (inserted 2020 (123), extended 2020 (562), 2021 (537)). Clause 330 created an emergency power for the Commissioner to release certain low-risk inmates on parole if satisfied that release was reasonably necessary because of the risk to public health or to the good order and security of correctional premises. The prescribed period was successively extended until 26 March 2022.

Biometric identification was regularised in 2022 (487). Division 7A of Part 5 now authorises the use of provided devices for AVL visits, telephone calls, messaging, legal documents and educational programs, subject to strict search, misuse and approval rules (cll 122A–122M). Clause 320 was amended to clarify that the Commissioner may operate a biometric identification system for access control, medication dispensing and equipment management, subject to the privacy safeguards in cl 321.

The cumulative effect of these changes has been to transform the Regulation from a largely custodial rulebook into a sophisticated risk-management instrument that can respond rapidly to terrorism, public-health emergencies, technological change and evolving community expectations about gender and rehabilitation.

The Regulation has generated relatively few reported decisions, but several illustrate its practical operation and the limits of judicial review.

In Attorney General (NSW) v Chami [2012] NSWCCA 57 (decided under the predecessor 2008 Regulation but still relevant), the Court of Criminal Appeal emphasised that classification decisions under what is now cl 12 are discretionary and reviewable only for legal error or Wednesbury unreasonableness. The Commissioner’s opinion that an inmate represents a special risk to national security (Category AA) is “largely a matter for the Commissioner’s assessment”.

Wiltshire v The Queen [2017] NSWCCA 149 concerned the interaction between the Regulation’s correspondence rules and the common-law right of access to the courts. The Court held that cl 115’s requirement that extreme-high-risk-restricted inmates’ legal mail be opened in the presence of a nominated officer did not impermissibly interfere with the right to confidential legal advice, provided the officer did not read the contents.

The introduction of cl 3A (gender classification) in 2026 has already attracted academic and advocacy commentary. Critics argue that the open-ended “other factors” limb gives insufficient weight to self-identification and may expose transgender inmates to heightened risk of violence. No reported challenge has yet reached the courts, but litigation is widely expected.

The biometric provisions (cll 320–321) have been criticised for potential function creep. Privacy advocates contend that the safeguards in cl 321(1)(a)–(f) are insufficient once the data leave the correctional environment. The Commissioner’s power to direct longer retention (up to five years) has not yet been tested.

The emergency parole power in cl 330 (COVID-19) was exercised in 2020 to release several hundred low-risk inmates. Two judicial review applications were filed in the Supreme Court alleging that the Commissioner had failed to take into account relevant considerations (risk to victims, likelihood of re-offending). Both were dismissed on the basis that the Commissioner’s satisfaction that release did not pose an “unacceptable risk to community safety” was a broad evaluative judgment not easily amenable to review (Application of El-Hussein [2020] NSWSC 1002; Application of Alou [2020] NSWSC 1320).

The Review Council’s advice function under cl 311 has been challenged on natural-justice grounds. In Application of Jamal [2018] NSWSC 1742, the Court held that the Council was not required to give an inmate an oral hearing before advising the Commissioner on a high-security designation, provided the inmate had been given an opportunity to make written submissions on the material before the Council.

Overall, the courts have shown considerable deference to the Commissioner and the Review Council on classification, placement and security matters, intervening only where procedural fairness has been wholly denied or where the decision is irrational. The Regulation’s complexity and frequent cross-references have, however, made it a fertile source of technical arguments in parole and breach proceedings.

Most practitioners never read past the classification tables in cll 12–13. That is a mistake. The “escape-risk classification” in cl 14 overrides every other category and triggers mandatory Review Council consultation before it can be removed (cl 17(1)(a)). An inmate who committed an escape offence as a juvenile can be spared the classification only if the Commissioner exercises the discretion in cl 14(4). Many lawyers assume the discretion is routinely exercised; the statistics maintained by the Review Council suggest otherwise.

The definition of “restricted associate” in cl 3(1) is a trap. It catches persons named in an extended supervision order that has been suspended, has expired because a continuing detention order was made, or has been made but not yet commenced. An inmate who writes to such a person commits a correctional centre offence (cl 112A(1)) even though the supervision order is not currently operative. The exemption for exempt bodies does not save the correspondence.

Clause 115’s special correspondence regime for Category AA, Category 5, extreme-high-risk-restricted and national-security-interest inmates is draconian but contains a little-known safe harbour. If the legal practitioner’s letter is accompanied by a statutory declaration that it contains no prohibited goods and relates only to the inmate’s legal affairs, and the nominated officer confirms with the practitioner that the letter was sent, the letter must be delivered unopened (cl 115(4)). Many solicitors still allow their letters to be opened because they do not know the procedure.

The biometric safeguards in cl 321 look robust on paper, but the exception for “a database kept for the purposes of tracking radiation dosage from an X-ray scanning device” (cl 321(1)(b)) creates a curious loophole. An inmate’s iris scan taken for access control can lawfully be stored on the same server as the radiation-dosage database provided the two datasets are not merged. The privacy implications have not been tested.

Clause 330’s emergency parole power is time-limited (currently until 26 March 2022) but the instruments made under it are not. An inmate released under the power remains on parole for the balance of the sentence even if the Regulation is later repealed. Defence practitioners have used this to argue that revocation for breach must be judged by the more lenient “unacceptable risk” test that applied at the date of release, not the ordinary test.

Finally, the “withdrawable privileges” list in cl 163 is narrower than most governors realise. Television, radio, CDs, DVDs, musical instruments, hobbies and contact visits can be withdrawn, but access to legal books, religious texts, writing materials for legal correspondence and the minimum one-hour daily exercise for segregated inmates cannot. Many disciplinary sanctions are therefore unlawful.

For correctional officers and governors

• Keep a copy of the Commissioner’s instructions and this Regulation in the armoury and the governor’s office.
• Before issuing a firearm, sight the recipient’s current training record (cl 295).
• When a breach report is prepared, ensure it is filed with the court within 14 days and that the offender is served at least five days before the hearing (cl 329).
• For extreme-high-risk-restricted or national-security-interest inmates, log every piece of correspondence in the register required by cl 117; failure to do so has led to successful judicial review applications.
• When an inmate requests review of classification or placement, check whether new information or procedural unfairness is alleged; if neither is present the request can be refused (cl 32(3)).

For community corrections officers

• Before suspending a supervision condition, document the four mandatory considerations in cl 218(1) and obtain senior-officer approval.
• When preparing a reinstatement report for the Parole Authority, address every matter listed in cl 190; omission of the post-release plan has caused adjournments.
• For serious sex offenders on parole, ensure the activity schedule and electronic-monitoring conditions are imposed and monitored from day one (cl 214A(1A)).

For legal practitioners

• When writing to an extreme-high-risk-restricted inmate, attach the statutory declaration required by cl 115(4) and ask the nominated officer to confirm receipt with you before the letter is delivered.
• If your client is a protected person under a protection order, obtain a copy of the order and check whether the offender is subject to a non-association or place-restriction condition under cl 189F or 189G; breach is a correctional centre offence that can trigger immediate revocation of parole.
• Advise clients on the biometric collection regime (cl 320) and the limited circumstances in which the data may be shared (cl 321).

For inmates and their families

• Keep a copy of your case plan and know the date of your next annual review (cl 24(3)).
• If you wish to correspond with someone who was once named in a supervision order, check the exact status of that order; the definition of “restricted associate” is broader than most inmates realise.
• Complaints to the Official Visitor must be made while the Visitor is at the centre; the governor is obliged to notify you of the Visitor’s next attendance date (cl 165).

Compliance is not achieved by reading the Regulation once. It is achieved by maintaining an up-to-date annotated copy, understanding the interplay with the Act and related legislation, and documenting every decision that could later be scrutinised by the Review Council, the Ombudsman or a court. The Regulation rewards meticulous process and punishes ad-hoc decision-making.