The Victorian Corrections Amendment Bill 2026 reveals what happens when a government decides that the difficulty of respecting rights is a sufficient reason to remove them.
The Victorian Government has introduced legislation that would allow Corrections Victoria to deny people in prison even one hour a day genuinely outdoors. In doing so, it has acknowledged that the law is incompatible with human rights and proposes overriding Victoria’s Charter of Human Rights and Responsibilities indefinitely.
The Government has also acknowledged that the Bill is, in part, incompatible with the objectives of the Statewide Treaty Act: it may compound the unacceptable disadvantage experienced by Aboriginal people and result in unequal access to human rights and fundamental freedoms.
Section 47 of the Corrections Act provides that a person in prison who is not ordinarily engaged in outdoor work has the right to be in the open air for at least one hour each day, weather permitting.
In January, the Supreme Court considered what “in the open air” means in a case about yards attached to cells in high-security and management units at Barwon Prison and the Metropolitan Remand Centre. Some of these were small concrete enclosures with mesh roofing, obstructed sky, little sunlight and no sensation of wind. Fluorescent lights remained on constantly. Others were surrounded by brick, bars, steel sheets and Perspex.
The Court found that several of these spaces did not provide a meaningful sense of being outdoors. Offering access to them did not meet the statutory entitlement to be in the open air. It also breached the right of people deprived of liberty to be treated humanely and with respect for their inherent dignity.
The judgement established that an enclosed concrete yard attached to a cell does not necessarily satisfy the statutory requirement. As Justice Harris observed, access to the open air supports the physical and mental wellbeing of people who may otherwise be confined to cells for long periods. It is particularly important for people subjected to isolation and solitary confinement.
Instead of updating prisons to comply with the law, the government is changing the law itself.
The Bill would allow the entitlement to open air be limited whenever providing it is not “reasonably practicable” because of “operational considerations”. These include security, good order, prison management and the welfare of people in custody.
The Government’s second-reading material confirms that the restriction is not confined to emergencies:
The provisions are intended to enable the right to be in open air to be limited on an ongoing basis and/or for extended periods of time, as well as in one-off, unexpected or non-routine circumstances.
This includes people held in long-term management units.
To deal with the fact that the provisions may be incompatible with the Charter of Human Rights and Responsibilities, the Government’s solution is an override declaration to exclude the Charter’s application. Unlike an ordinary override, it would not expire after five years. It would continue indefinitely.
To add insult to injury, the Bill would also retrospectively prevent people from receiving compensation for past denials of the existing right, including in proceedings underway but not finally determined.
The State acted unlawfully, a court identified the breach, and the government’s response is to narrow the right, remove the remedy and insulate the new arrangements from human rights scrutiny.
The government says this is necessary because moving people from high-security units into suitable outdoor spaces presents logistical and security challenges.
But rights exist precisely because institutional convenience is a powerful force. If “operational considerations” can override a minimum safeguard, that safeguard is no longer a right. It is a benefit provided when administrators find it manageable.
Prisons are total institutions. The State controls where a person sleeps, when they eat, whom they see and whether they can experience sunlight or fresh air. People inside cannot change providers, leave an unsafe environment or attract ordinary public scrutiny. That imbalance of power demands stronger safeguards, not weaker ones.
The Human Rights Law Centre has described daily access to fresh air as a lifeline and a bare minimum protection against cruel and degrading treatment. Its removal will fall especially heavily on people in solitary confinement and on Aboriginal people, who are already imprisoned at grossly disproportionate rates.
The Government’s Treaty compatibility statement itself acknowledges that the Bill may compound the unacceptable disadvantage experienced by Aboriginal people and may be inconsistent with their equal enjoyment of human rights. It proceeds regardless.
The Bill sits within a broader retreat from rights and evidence in Victorian criminal justice policy.
The government celebrates record bail refusals and remand decisions as measures of success. It has introduced what it calls Australia’s toughest bail laws, expanded the treatment of children as adults, increased sentences and invested in additional custodial capacity.
This is the trap of law-and-order politics. Punishment becomes its own evidence. More people refused bail means the policy is “working”. More people held in police cells creates pressure for additional prison capacity. More imprisonment produces overcrowding, lockdowns and deteriorating conditions. Those conditions are then described as operational realities requiring rights to be restricted. The system manufactures the circumstances used to justify its own expansion.
A government committed to human rights would treat the Supreme Court’s decision as an instruction to remedy degrading conditions. A government committed to genuine community safety would invest in housing, health care, education, family violence prevention and Aboriginal self-determination, rather than continually expanding the machinery of punishment.
Instead, Victoria proposes to make seeing the sky conditional on what is convenient for the prison. This is a warning about how little a right can mean once the people denied it have been placed beyond public concern.
Sheena Colquhoun
Sheena Colquhoun is an economist, activist and chair of the board of Flat Out, a Victorian statewide advocacy service supporting women, trans and gender diverse people to get out and stay out of prison and live free from violence.