Thursday, 18 June 2026

 Paul HAMER (Box Hill – Minister for Local Government, Minister for Youth Justice, Minister for Corrections) (15:01): Under the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this Statement of Compatibility with respect to the Corrections Amendment Bill 2026 (Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is, in part, incompatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

Section 47(1)(a) of the Corrections Act 1986 (Corrections Act) provides that every person in prison who is not ordinarily engaged in outdoor work has the right to spend at least one hour each day in the open air, weather permitting.

The Bill will amend the Corrections Act to provide that, in addition to any weather considerations, the right to be in open air may be limited where it is not reasonably practicable to provide the entitlement, having regard to operational considerations, including:

•   the management, good order, or security of the prison;

•   the rights, safe custody, or welfare of the prisoner;

•   the rights, safe custody, or welfare of any other prisoner in the prison.

The Bill also provides that no amounts are payable by the State (as damages or other monetary compensation) for any limitations of the right under section 47(1)(a) that accrued before its commencement. This provision:

•   applies to any proceedings that are on foot and have not been finally determined before the Bill commences, and

•   does not apply to any proceedings that have been finally determined before the Bill commenced.

The amendments in the Bill respond to the Supreme Court’s judgement in Marrogi v Secretary, Department of Justice and Community Safety & Ors (No 1) [2026] VSC 4 (Marrogi case). In this case, the Court found that rear courtyards attached to certain cells in specific high security and management units of the Metropolitan Remand Centre and Barwon Prison did not constitute being ‘in the open air’ for the purposes of the Corrections Act. Whilst the State has appealed that decision, this Statement of Compatibility is prepared on the basis of the Court’s judgment.

The Bill addresses both legal and operational risks arising from the Marrogi case, to ensure that:

•   Corrections Victoria (CV) can manage access to open air safely and lawfully, alongside operational considerations critical to the secure, effective functioning of prisons in Victoria, and

•   he State’s financial exposure arising from the Marrogi case is limited.

Human Rights Issues

The following Charter rights are relevant to, and in some cases may be limited by, the Bill:

•   protection from cruel, inhuman or degrading treatment (section 10(b));

•   the right to humane treatment when deprived of liberty (section 22(1));

•   the right not to be deprived of property other than in accordance with law (section 20);

•   right to freedom of movement and right to liberty (sections 12 and 21);

•   right to fair hearing (section 24(1)); and

•   right not to be tried or punished more than once (section 26).

Limitation on the right to be in open air in prison

The Bill amends the right to be in open air under section 47(1)(a) of the Corrections Act, to enable limitation of the right where it is not reasonably practicable to provide the full entitlement in light of operational considerations, including:

•   the management, good order, or security of the prison;

•   the rights, safe custody, or welfare of the prisoner;

•   the rights, safe custody, or welfare of any other prisoner in the prison.

The provision is relevant to, but does not limit, the human rights in the Charter to freedom of movement and right to liberty (sections 12 and 21).

This provision is relevant to and may limit the following human rights in the Charter:

•   protection from cruel, inhuman or degrading treatment (section 10(b)).

•   the right to humane treatment when deprived of liberty (section 22(1)).

No amounts payable by the State for past limitations of the right to be in open air

The Bill introduces new section 111AA into the Corrections Act, that provides that no amounts are payable by the State for any limitations of a person’s right to be in open air that accrued before the Bill commenced.

This provision is relevant to, but does not limit, the right not to be tried or punished more than once under section 26 of the Charter.

This provision is relevant to and may limit the following human rights in the Charter:

•   the right to humane treatment when deprived of liberty (section 22(1));

•   the right not to be deprived of property other than in accordance with law (section 20); and

•   the right to fair hearing (section 24(1)).

Human rights relevant but not limited by the Bill

Right to freedom of movement and right to liberty (sections 12 and 21)

Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it, and has the freedom to choose where to live. Section 21(1) of the Charter provides that every person has the right to liberty and security. Section 21(2) provides that a person must not be subjected to arbitrary detention. Here ‘arbitrary’ means interferences which, on the facts of an individual case, are ‘capricious, unpredictable or unjust’, or those that are unreasonable as they are not proportionate to a legitimate aim sought. Section 21(3) provides that a person must not be deprived of their liberty except on grounds, and in accordance with procedures, established by law.

The Bill’s limitation on people in prisons’ right to be in open air for operational reasons may appear to constitute a deprivation of freedom of movement and the right to liberty, as it may reduce a person’s ability to be in and move around in the open air.

However, I do not consider the right to freedom of movement or the right to liberty under sections 12 and 21 of the Charter are limited by these provisions of the Bill given:

•   this limitation does not itself deprive any persons of their liberty or right to move freely within Victoria. That deprivation occurred when the sentencing court imposed the sentence of imprisonment. The right to liberty is reasonably and justifiably limited where the person is deprived of their liberty under sentence of imprisonment after conviction for a criminal offence by an independent court;

•   the Bill does not affect the head sentence of imprisonment imposed by the sentencing court nor does it increase the limitation caused by the court’s sentence. The Bill only enables the conditions of imprisonment to be altered in certain circumstances. As such, the limitation on the right to be in open air in the Bill cannot properly be construed as creating any new or increased deprivation of a prisoner’s liberty; and

•   the Bill sets out parameters for when a person’s right to be in open air may be limited, rather than this being arbitrary. The Bill makes clear that the limiting of a person’s right to be in open air may only occur in light of the weather, or operational considerations, including those listed in new section 47AAA(1).

Accordingly, I am of the view that the human rights in sections 21 and 12 are not limited by the reforms.

Right not to be tried or punished more than once (section 26)

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which that person has already been finally convicted or acquitted in accordance with the law.

This right enshrines the fundamental common law principle of ‘double jeopardy’ and promotes fairness for persons acquitted or convicted of an offence by ensuring they are not subjected to multiple prosecutions. Section 26 of the Charter therefore guarantees a person finality and certainty in the criminal justice system, by protecting them from being the subject of further prosecutions. It could be argued the provisions in the Bill which allow for limits on people’s right to be in open air and which provide that no amount is payable for past limitations of the right to be in open air could impose a level of detriment or punishment, resulting in the right under section 26 being relevant.

However, I do not consider the Bill limits the right not to be tried or punished more than once under section 26 of the Charter.

These provisions are not introduced for the purpose of imposing a punishment.

In relation to the limitation of the right to open air, the Bill sets out conditions by which the right might be limited due to operational reasons including the safety of the prisoner.

In relation to the provisions in the Bill providing no amounts are payable by the State, the objective of this provision is to limit the State’s financial exposure to claims that may be brought following the Marrogi case. Given the number of people who may have been held in conditions similar to Mr. Marrogi since the commencement of the Corrections Act, it is possible that further claims alleging limitations of the right to be in open air could be brought and result in the State needing to pay compensation. The relevant provisions will assist in limiting costs to the State of these potential claims. The Bill will ensure funds can instead be directed towards resources that benefit all Victorians, including facilitating an effective criminal justice system.

Further, while these clauses may result in some detriment to affected persons, not all detriment, hardship or distress inflicted by legislation will constitute a penalty or punishment. In this Bill, the detriment will not be inflicted as a result of a person being convicted or acquitted of a crime. Rather, the detriment will be incurred based on the timing of when their claim accrued and whether the proceedings were finalised prior to the commencement of the Bill.

The nature of the detriment is also not one ordinarily associated with criminal sanction or punishment, as there is no imposition of any personal liability on a person. The Bill does not impose a penalty or sanction for breach of provisions which prescribe a rule of conduct. It also does not seek to extinguish a person’s civil rights and liabilities, or cause of action. Rather, it limits the remedies available to a person who has brought a civil claim. Further, the provision does not have a purpose of retribution, stigmatisation or penalisation – rather, the purpose of the provision is to limit the State’s potential financial exposure for past breaches of section 47(1)(a).

Therefore, I do not consider the Bill to be engaging nor limiting the right not to be tried or punished more than once under section 26 of the Charter.

Human rights relevant and limited by the Bill

Protection from cruel, inhuman, degrading treatment (section 10(b)) and inhumane treatment (section 22(1))

Section 10(b) of the Charter provides that a person must not be treated or punished in a cruel, inhuman or degrading way. Similarly, section 22(1) provides that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

For the purposes of section 10(b), ill-treatment must reach a minimum standard, or threshold, of severity or intensity before it can amount to cruel, inhuman or degrading treatment.¹ The assessment of the minimum threshold is relative and depends on all the circumstances of the case, including the duration of the treatment, its physical or mental effects, and the sex, age and state of health of the alleged victim.²

There is also a ‘severity threshold’ that must be met to establish a breach of section 22(1), which is assessed by reference to (among other things) the nature, severity, duration and frequency of the impugned conduct; the nature and extent of the impact on the prisoner; any particular vulnerability or condition of the prisoner; the purpose of the treatment, and the prisoner’s own conduct.³ The starting point under section 22(1) is that people in prison should not be subjected to hardship or constraint, other than the hardship or constraint that necessarily results from the deprivation of liberty as a result of their sentence. In determining whether some hardship or constraint falls into that category, it is necessary to consider not merely what is ‘theoretically possible’, but also what is ‘practicable’, ‘reasonable in the context of a prison environment’, and ‘consistent with the very purpose of imprisonment itself’.⁴

(i) Limitation on the right to be in open air

I accept that amended section 47(1)(a)(i) and new section 47AAA inserted by the Bill may in certain circumstances limit a person’s rights under sections 10(b) and 22(1) of the Charter. While the operation of these clauses may not always meet the requisite threshold for limiting sections 10(b) and 22(1) rights, it is possible that this threshold could be met in some cases. For instance, section 10(b) and 22(1) rights could be limited if the person whose right to be in open air was limited had particular mental health concerns that were exacerbated by lack of access to open air.

As such, it is necessary to consider whether the limitations on sections 10(b) and 22(1) are reasonable and demonstrably justifiable under section 7(2) of the Charter.

The purpose of provisions limiting the right to be in open air is to mitigate the operational risks arising from the Marrogi case and ensure CV can continue to manage access to open air safely. Enabling a limitation on the right to be in open air for operational reasons, ensures the entitlement can be managed alongside other critical concerns, such as the security and safety of all people in prison. This is particularly important in the highly complex operating environment of prisons, which require careful management of multiple interests and people with varying needs.

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 based on operational reasons, as well as in one-off, unexpected or non-routine circumstances. For example, it may be necessary for higher risk prisoners in long term management to only have access to a rear yard, and therefore not receive their daily open air entitlement, over an extended period of time. Providing access to open air in these circumstances can create significant safety risks and/or result in open air rights becoming unavailable to other prisoners. In such a case, it is intended that new section 47(1)(a)(i) would permit the right to be in open air to be limited for the duration that those operational constraints prevail. In this way the reforms are intended to address the exact scenario that arose in Mr Marrogi’s case, and similar cases involving higher risk prisoners in high security and management units.

The decision of the Supreme Court in the Marrogi case found that private rear courtyards attached to a person in prison’s cell, which have been historically used to provide open air, are not sufficient to meet legislative requirements. At the time of consideration of this Bill, that decision is subject to an appeal by the State.

While all efforts are made to ensure people are afforded this right, the operational reality of the system is that it is not reasonably practicable to provide each person in prison who currently has access to a private rear courtyard with daily access to alternative yards.

This is exacerbated by the complex security and safety risks posed by people in high security or management units, which would require them to be in communal yards alone and escorted by staff. Providing this cohort with access to open air could therefore be to the detriment of other prisoners, and create risks to staff safety.

Possible infrastructure changes would still not provide a solution to the operational challenge of providing daily access to open air to every person in prison. Given the security risks posed by the cohort of people held in high security and management units, there may not be any suitable infrastructure solutions available that allow access to open air while also maintaining safety and security in the prison system.

The limitation on the right to be in open air is confined to circumstances where it is not reasonably practicable to provide the entitlement in light of operational considerations. The Bill does not enable the right to be limited at large.

While this confines the circumstances in which the right to be in open air may be limited, it does not completely mitigate the risk of arbitrary limits being imposed on section 10(b) and 22(1) rights. This may particularly be the case where limitations on the right to be in open air continue over a longer period, due to certain operational conditions persisting and government being aware of these.

For these reasons, I conclude on balance that the limitation on the rights in sections 10(b) and 22(1) of the Charter are unable to be justified in accordance with section 7(2) of the Charter. Accordingly, I conclude that amended section 47(1)(a)(i) and new section 47AAA inserted by the Bill are incompatible with human rights.

For this reason, new section 47AAA contains override declarations expressly providing that the Charter does not apply to amended section 47(1)(a)(i) and new section 47AAA. It also

contains a sub-section providing that the override provisions do not need to be re-enacted every 5 years. Consequently, the Charter will have no application to these new sections in perpetuity. In this exceptional case, the Charter is being overridden and its application excluded to ensure access to open air in prison can continue to be managed safely, alongside other critical considerations.

I also propose to make a statement explaining the exceptional circumstances justifying the inclusion of those override declarations.

(ii) No amounts payable by the State for past limitations of the right to be in open air

New section 111AA inserted by the Bill may also be relevant to and limit rights under sections 10(b) and 22(1), given this provision removes the ability to obtain damages to mitigate the consequences of limitations on the right to be in open air in the context of a restrictive prison environment.

Section 10(b) of the Charter provides that a person must not be ‘treated or punished in a cruel, inhuman or degrading way’. The law recognises that the protection from cruel, inhuman or degrading treatment or punishment is not confined to physical pain, but also protects against acts that cause mental suffering. This extends to treatment or punishment that humiliates or debases a person, or is capable of breaking moral or physical resistance. The pain and suffering caused by such treatment must, however, meet a minimum threshold of severity before this right will be relevant.

While there has been limited judicial consideration of section 10(b), this right has predominantly been found to apply in situations where severe suffering has been deliberately inflicted, or where a victim has been intentionally harmed, humiliated or debased. The majority of cases have focused on conditions of custody and/or physical harm inflicted on a person, rather than amendments to civil rights or remedies.

I acknowledge that new section 111AA inserted by the Bill may be relevant to this right by causing distress to a person, through removing their ability to be awarded monetary amounts following a successful claim about an unlawful limitation of their right to be in open air. However, I do not consider that the minimum threshold of severity is met in order to constitute a limitation on the section 10(b) right. While the Bill may raise concerns of unfairness or detriment being incurred, it is not directed at intentionally causing any acute or intense harm to an individual. Additionally, while the Bill removes the ability for persons to recover amounts payable by the State in certain circumstances, it does not remove the ability of a person to bring a claim for alleged limitation of their right to be in open air or for them to be awarded other forms of relief for past limitations (for example, declaratory relief).

As such, it may be more appropriate to consider these provisions in the Bill as constituting a limitation of the right under section 22(1) that all persons deprived of liberty must be treated with humanity and respect for the inherent dignity of the human person. Section 22(1) captures ‘conduct which lacks humanity, but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so.’⁵ Removing the ability of certain people to recover amounts payable for past limitations of their right to be in open air may compound suffering experienced as a result of their right being limited. This may be exacerbated by the fact that the person experienced this suffering while being incarcerated and therefore may place them in a particularly vulnerable position.

Nevertheless, I consider this potential limitation of section 22(1) to be reasonably and demonstrably justifiable under section 7(2), and therefore compatible with the Charter. As noted above, new section 111AA has been inserted for the legitimate purpose of limiting the State’s financial exposure to further claims which may arise following the Marrogi case. Given the number of people who may have been held in conditions similar to Mr. Marrogi since the commencement of the Corrections Act, it is possible that further claims alleging limitations of the right to be in open air could be brought and result in the State needing to pay compensation. The relevant provisions will assist in limiting costs to the State of these potential claims. The Bill will ensure funds can instead be directed towards resources that benefit all Victorians, including facilitating an effective criminal justice system.

Additionally, the relevant clauses are appropriately confined to achieving this purpose, given they:

•   do not seek to extinguish all causes of action and do not prevent individuals from bringing claims for past limitations on the right to be in open air as well as not prohibiting other forms of non-monetary relief from being sought and awarded;

•   do not interfere with any amounts already determined as payable in proceedings finalised before the Bill commences, and

•   do not limit amounts payable for limitations of the right to be in open air that occur after the Bill commences – the limitation on amounts payable is restricted to claims brought for any limitations of the right to be in open air in section 47(1)(a) that accrued before the Bill commences and were not determined before this date.

Right not to be deprived of property other than in accordance with law (section 20)

Section 20 of the Charter provides that a person must not be deprived of that person’s property other than in accordance with law.

In considering whether this right has been limited a court will consider whether (a) the relevant law ‘deprives’ a person of ‘property’, and (b) that deprivation is not ‘in accordance with law’. The right under section 20 requires that powers authorising the deprivation of property are conferred by legislation or common law; are confined and structured rather than unclear; and are accessible to the public.⁶ Laws that permit or require a deprivation of property must also not operate arbitrarily.⁷

There is no Victorian authority considering whether an entitlement to amounts payable for an accrued cause of action against the State, constitutes ‘property’ under the Charter. Whilst ‘property’ is not defined in the Charter, in PJB v Melbourne Health (2011) 39 VR 373 the

Supreme Court of Victoria indicated that it should be ‘interpreted liberally and beneficially to encompass economic interests.’ Given this, it is possible that an entitlement to amounts payable arising from an unlawful limitation of the right to be in open air could be conceived of as ‘property’.

The Bill may ‘deprive’ a person of such property, by preventing a person from obtaining amounts that may otherwise have been payable by the State in certain cases.

The potential deprivation of property by the Bill may still be considered lawful, if it occurs in accordance with law. For deprivation of property to be in accordance with law, the Bill must not operate arbitrarily.⁸

In WMB v Chief Commissioner of Police (2012) 43 VR 446, the Court of Appeal stated that a law is arbitrary where it is capricious, unjust, unpredictable or unreasonable in the sense of not being proportionate to a legitimate purpose. While new section 111AA inserted by the Bill provides a clear, confined and publicly available legislative basis for depriving a person of property, they could still be characterised as arbitrary, in the sense of being capricious, unpredictable or unjust. This is because this provision applies to causes of action that have already accrued and in doing so, removes the ability of a cohort of people to recover amounts to which they might otherwise have been entitled to as a result of the State’s wrongful conduct. This sense of capriciousness or unjustness could be particularly acute where these provisions affect people in prison, who are especially vulnerable by reason of being subject to the control of prison authorities.

However, a law will not be considered arbitrary where it is considered proportionate to achieving a legitimate purpose. As outlined above, new section 111AA inserted by the Bill is intended to achieve the legitimate purpose of reducing the State’s financial exposure for any past limitations of the right to open air. Being proportionate to that aim, new section 111AA may therefore not be considered to operate in an arbitrary manner and may not result in a limitation of the property under section 20.

In any case, even if these clauses were deemed to limit section 20 rights, I consider any limitation would be reasonably and demonstrably justifiable under section 7(2).

Once more, new section 111AA has been introduced for the legitimate purpose of reducing the State’s financial exposure for any past limitations of the right to open air. Given the number of people who may have been held in conditions similar to Mr. Marrogi since the commencement of the Corrections Act, it is possible claims could be brought and result in the State needing to pay compensation. The Bill will limit the State’s financial exposure for responding to such claims, ensuring funds can be directed to benefit all Victorians, including facilitating an effective criminal justice system.

Additionally, the relevant provisions are appropriately confined given they:

•   still enable claims for past limitations on the right to be in open air to be brought and do not prohibit other forms of non-monetary relief from being granted to successful claimants (such as declaratory relief);

•   do not interfere with any amounts already awarded by courts in proceedings finalised before the Bill commences; and

•   do not limit amounts payable for limitations of the right to be in open air that occur after the Bill commences – the limitation on amounts payable is restricted to claims brought for any limitations of the right to be in open air in section 47(1)(a) that accrued before the Bill commences and were not determined before this date.

I therefore consider that any limitation the Bill places on the right to property under section 20 of the Charter can be reasonably justified pursuant to the factors in section 7(2).

Right to fair hearing (section 24(1))

Section 24(1) of the Charter provides the right to fair hearing. This right requires judicial determination of what civil rights and liabilities exist as a matter of substantive law. However, it does not prevent the State from altering the content of those civil rights in the substantive law.⁹

The distinction between what may be regarded as a procedural bar to bringing a civil claim, which would generally engage rights under section 24, and what may alter the substantive law, which would generally not engage these rights, may be difficult to determine in some circumstances.¹⁰ While this issue has not been judicially considered in Victoria, the European Court of Human Rights has suggested that a court should not be unduly influenced by particular legislative techniques used or labels put on the relevant restriction.¹¹

It may be argued that provisions limiting amounts payable for past limitations of the right to be in open air do not impede judicial determination of such claims or act as a procedural bar to bringing such a claim, as they do not prevent claims from being brought or affect how they are determined. Rather, these clauses simply limit the kind of relief that may be awarded following a successful claim being made out.

However, the provisions may limit rights under section 24(1), given they could be considered as operating retrospectively through their application to causes of action that have already accrued before the Bill commences, but for which proceedings are not finalised until after the Bill commences. This in turn could be seen as interfering with the judicial process.

Once more, I nevertheless consider the limitations on rights under section 24 to be reasonably and demonstrably justifiable under section 7(2) of the Charter, given they are intended to limit the State’s financial exposure following the Marrogi case and are appropriately confined. As noted above, without these clauses in place, there is a risk that further claims could be brought by people who have previously been held in similar conditions to Mr. Marrogi and result in the State nee

directed towards resources that benefit all Victorians, including facilitating an effective criminal justice system.

Additionally, the provisions are appropriately confined by:

•   still enabling claims for past limitations on the right to be in open air to be brought and do not prohibit other forms of non-monetary relief from being granted to successful claimants;

•   not interfering with any amounts already determined as payable by a court in proceedings finalised before the Bill commences; and

•   not limiting amounts payable for limitations of the right to be in open air that occur after the Bill commences – the limitation on amounts payable is restricted to claims brought for any limitations of the right to be in open air that accrued before the Bill commences and were not determined before this date.

Conclusion

By enabling the limitation on the right to be in open air in certain circumstances, the Bill ensures open air access can be appropriately managed alongside operational considerations critical to the safe, effective functioning of prisons in Victoria. The importance of achieving this objective warrants the exceptional inclusion of a Charter override in relation to these provisions.

While Charter rights may be limited by provisions in the Bill providing that no amounts are payable by the State for past limitations of the right to be in open air that have not been finalised before the commencement of the Bill, these limitations are reasonably and demonstrably justifiable given their important and legitimate purpose of limiting the State’s financial exposure following the Marrogi case. Additionally, they are appropriately confined to ensure the Bill strikes the right balance between ensuring claims can continue to be brought for past limitations of the right to be in open air and certain non-monetary relief granted, while also providing for effective management of the State’s resources.

The Hon. Paul Hamer MP

Minister for Local Government

Minister for Youth Justice

Minister for Correction

¹Brown v State of Victoria (No 3) [2025] VSC 765, [497] quoting Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441 (Certain Children (No 2)), [250].

² Ibid.

³Taylor v Attorney-General [2022] NZHC 3170, [36], [38].

⁴Castles v Secretary to the Department of Justice (2010) 28 VR 141, [112], [137].

⁵Certain Children (No 2), [245], quoting Taunoa v Attorney-General (2007) 9 HRNZ 104, [177].

⁶PJB v Melbourne Health (2011) 39 VR 373, Patrick’s Case, [91].

⁷ Ibid

⁸ Ibid

⁹ See Roche v United Kingdom (European Court of Human Rights, Application No 32555/96, 19 October 2005) (Roche).

¹⁰ E.g. see discussion in Roche, [90]–[94]; [116]–[121].

¹¹Roche, [121]; E.g. see also Al-Adsani v United Kingdom (European Court of Human Rights, Application no 35763/97, 21 November 2001), [46]–[49]. where this distinction was a relevant factor in finding that state immunity from suit was found to be a procedural bar on the national courts’ power to determine the relevant right.

 Paul HAMER (Box Hill – Minister for Local Government, Minister for Youth Justice, Minister for Corrections) (15:01): Under the Statewide Treaty Act 2025, I table a statement of treaty compatibility:

In my opinion, the Bill, as introduced to the Legislative Assembly is, in part, compatible with the matters set out in section 66(3)(d) of the Statewide Treaty Act 2025. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The Bill modifies the right to be in open air under section 47(1)(a) of the Corrections Act 1986 (the Corrections Act).

Section 47(1)(a) provides that every person in prison has, if not ordinarily engaged in outdoor work, ‘the right to be in the open air for at least an hour each day, if the weather permits’.

The Bill will amend the Corrections Act to provide that the right to be in open air may be limited where it is not reasonably practicable to provide the full entitlement, having regard to operational considerations, including:

•   the management, good order or security of the prison;

•   the rights, safe custody or welfare of the prisoner;

•   the rights, safe custody or welfare of any other prisoner in the prison.

These provisions are intended to enable the right to be in open air to be limited in one-off, unexpected or non-routine circumstances, and on an ongoing basis and/or for extended periods of time, based on operational reasons.

The Bill will also provide that no amount is payable by the State (as damages or other monetary compensation) to any person for any limitations of the right under section 47(1)(a) that occurred before its commencement. This provision:

•   applies to any proceedings that are on foot and have not been finally determined before the Bill commences, and

•   does not apply to any proceedings that have been finally determined before the Bill commenced.

These amendments respond to the Supreme Court’s judgement in Marrogi v Secretary, Department of Justice and Community Safety & Ors (No 1) [2026] VSC 4 (Marrogi case), which found that rear courtyards attached to certain high security and management units of the Metropolitan Remand Centre and Barwon Prison did not constitute being ‘in the open air’ for the purposes of the Corrections Act.

The Bill addresses legal and operational risks arising from the Marrogi case, to ensure that:

•   Corrections Victoria (CV) can manage access to open air safely and lawfully, alongside operational considerations critical to the secure, effective functioning of prisons in Victoria, and

•   the State’s financial exposure arising from the Marrogi case is limited.

Consultation with the First Peoples’ Assembly of Gellung Warl

Due to the recent establishment of the First Peoples’ Assembly of Gellung Warl, it was not possible to give the First Peoples’ Assembly the opportunity to advise on the Bill or for them to otherwise make representations about the effect of the Bill on First Peoples.

Compatibility of the Bill with each object in section 66(3)(d) of the Statewide Treaty Act

I have considered whether the Bill is compatible with the objects at section 66(3)(d) of the Statewide Treaty Act 2025:

(i) advancing the inherent rights and self-determination of First Peoples; and

(ii) addressing the unacceptable disadvantage inflicted on First Peoples by the historic wrongs and ongoing injustices of colonisation; and

(iii) ensuring the equal enjoyment of human rights and fundamental freedoms by First Peoples.

It is noted that the Bill does not in its terms include any provisions which apply specifically to First Peoples―it amends a statutory entitlement that applies to all people in prison. However, the practical effect of the Bill may be to undermine inherent rights, unacceptable disadvantage inflicted, human rights and fundamental freedoms of First Peoples, given Aboriginal people are significantly overrepresented in the prison population. Aboriginal people are also marginally overrepresented in the number of people in prison who are separated, where the provisions in the Bill are more likely to be relied upon, given the operational challenges of providing these individuals with access to open air.

As a result, Aboriginal people may be disproportionately affected by the Bill, particularly those who have been separated in prison.

Advancing the inherent rights and self-determination of First Peoples

It is acknowledged that the exercise of the right to self-determination will necessarily be limited when an Aboriginal person is in prison, given the loss of liberty inherent in conditions of custody. However, particular consideration has been given to whether, within the context of the residual liberty enjoyed by a prisoner, the right to self-determination is further affected by the Bill.

While CV seeks to enable self-determination rights in prisons where possible, for example by giving Aboriginal people the ability to shape how they engage with programs and culture in prison, settings such as security classifications, and where a person is accommodated within the prison system, are inherent features of a custodial environment that cannot be self-determined. As the Bill contains only amendments to the right to be in open air within these operational settings, these amendments do not further limit self-determination.

The inherent rights of First Peoples, as outlined in the Universal Declaration on the Rights of Indigenous Peoples (UNDRIP), derive from First People’s political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies.

An inherent right of First Peoples that may be impacted by this Bill includes the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights (article ‍40).

This is because of clauses in the Bill which provide that no amounts are payable by the State for limitations of the right to be in open air that occurred before the Bill commenced, which could limit the effective remedies available to First Peoples who may otherwise have brought claims for such past limitations of the right to be in open air.

In my opinion, the Bill is nevertheless compatible with the object of advancing the inherent rights of First Peoples. My assessment of compatibility is informed by consideration of proportionality, guided by the test in section 7(2) of the Charter of Human Rights and Responsibilities Act 2006 (Charter).

In my opinion, the limitations on this object are proportionate to the legitimate policy purpose of these clauses in the Bill. Provisions providing no amounts are payable by the State for past breaches of the right to be in open air assist in reducing the State’s financial exposure to other legal claims that may be instigated following the Marrogi case.

These provisions are appropriately confined to achieving this purpose, given they:

•   do not seek to extinguish all causes of action and still enable individuals to bring claims for past limitations on the right to be in open air, as well as not prohibiting other forms of non-monetary relief from being sought and awarded;

•   do not interfere with any amounts already determined as payable in proceedings finalised before the Bill commences; and

•   do not limit amounts payable for limitations of the right to be in open air that occur after the Bill commences―the limitation on amounts payable is restricted to claims brought for any limitations of the right to be in open air in section 47(1)(a) that accrued before the Bill commences and that were not determined before this date.

In my opinion, the Bill is therefore compatible with the objects specified in section 66(3)(d)(i) of the Statewide Treaty Act 2025.

Addressing the unacceptable disadvantage inflicted on First Peoples by the historic wrongs and ongoing injustices of colonisation

The Bill does not expressly address the unacceptable disadvantage inflicted on First Peoples by colonisation. As outlined above, the provisions in the Bill apply to all people in prison and there are no specific provisions which are directed to or may mitigate its impact on Aboriginal people in custody.

In its practical effect, this could compound the unacceptable disadvantage experienced by Aboriginal people in prison, noting that, despite efforts under the Closing the Gap National Agreement and related efforts under the Aboriginal Justice Agreement, Aboriginal people remain significantly overrepresented in prison.

Additionally, as noted above, Aboriginal people are overrepresented in prison numbers and also marginally overrepresented in the number of people who have been separated in prison.

The Yoorrook Justice Commission found that ‘[t]he prison system does not exist separately from the ongoing processes of colonisation’. I note that incarceration can have profound impacts on a person’s physical and mental health and family and cultural connections, which may be compounded by limitations on the right to open air enabled by this Bill.

In my opinion, the provisions in the Bill which provide that no amounts are payable for past limitations of the right to be in open air are nevertheless compatible with this object. As outlined above, these provisions are a proportionate means of achieving a legitimate policy purpose, and the provisions are appropriately confined to achieving that purpose.

However, I accept that the provisions in the Bill that enable the right to be in open air to be limited in operational circumstances may compound the unacceptable disadvantage experienced by Aboriginal people.

In my opinion, the Bill is therefore, in part incompatible with the objects specified in section 66(3)(d)(ii) of the Statewide Treaty Act 2025.

Ensuring the equal enjoyment of human rights and fundamental freedoms by First Peoples

As noted above, the Bill does not, on its face, make distinctions based on First Peoples ―it applies equally to all people in prison and does not include any specific provisions addressing Aboriginal people in prison. However, as Aboriginal people are significantly overrepresented in the prison system and marginally overrepresented in instances of separations, they could be disproportionately affected by the rights and freedoms limited through this Bill. As such, I consider that the Bill has a differential practical effect on First Peoples.

In terms of whether this differential practical effect results in the unequal enjoyment of human rights or fundamental freedoms enjoyed by First Peoples compared to others, it is necessary to consider the human rights and fundamental freedoms relevant to the Bill.

The following rights under the Charter are relevant and may be limited by the provisions enabling the limitation of the right to open air:

•   protection from cruel, inhuman or degrading treatment (section 10(b)) and the right to humane treatment when deprived of liberty (section 22(1)) – these provisions may limit these rights under the Charter in certain circumstances where the denial of open air reaches the requisite threshold, for example where limiting access to open air has potentially exacerbated a person’s mental health concerns.

The following rights are relevant and may be limited by the provisions providing that no amounts are payable for past limitations of the right to be in open air that accrued before the Bill commenced:

•   Right to humane treatment when deprived of liberty (section 22(1)) – removing the ability of certain people to obtain any amounts for past limitations of their right to open air may compound the suffering experienced as a result of their right being limited. While section 10(b) may be relevant, the minimum threshold of severity required to constitute cruel, inhuman or degrading treatment is not considered to be met. This is because, unlike the limitation on open air access itself, the no amounts payable clauses do not directly affect a prisoner’s physical conditions of detention. Removing the ability to seek monetary compensation for past limitations does not, of itself, constitute cruel, inhumane or degrading treatment. The Bill is not directed at intentionally causing acute harm and does not remove the ability to bring a claim. Further, it does not prohibit the granting of other forms of non-monetary relief (like declaratory relief).

•   Right not to be deprived of property other than in accordance with the law (section 20) – while the ‘no amounts payable’ clauses in the Bill provide a clear, confined and publicly-available legislative basis for depriving a person of property, they could still be characterised as arbitrary or unpredictable. These clauses apply to causes of action that have already accrued and in doing so, remove the ability of individuals to obtain damages for limitations on their right to be in open air – that is, to enforce a right that was available to them under the existing statutory scheme. This could be seen as particularly unjust where these provisions affect people in prison, who are especially vulnerable by reason of being subject to the control of prison authorities.

•   Right to fair hearing (section 24(1)) – the provisions which provide no amount is payable for past limitations of the right to be in open air could be seen as limiting the right to a fair hearing due to their potential application to causes of action that have already accrued and proceedings that may already be on foot at the time the Bill commences. This could be seen as impeding access to courts and therefore limiting the right to a fair hearing.

Pursuant to article 24(2) of UNDRIP, the Bill may also be relevant to and limit the right of First Peoples’ enjoyment of the highest attainable standard of physical and mental health. Access to open air is important to the physical and mental well-being of all people in custody and limiting the right to open air may disproportionately affect Aboriginal people in prison, given their significant overrepresentation in the prison population generally and marginal overrepresentation within people who have been separated.

As noted above, the Bill may also engage and limit the right to fair procedures for the resolution of conflicts and disputes, under UNDRIP article 40

The provisions limiting amounts payable by the State engage the right to just and fair procedures for the resolution of disputes, given they could limit the effective remedies available to First Peoples who may otherwise have brought claims for such limitations of the right to be in open air.

Further, in accordance with article 7(1) of the UNDRIP, the right to life, physical and mental integrity, liberty and security of person held by First Peoples is also relevant and may be limited by the Bill. While all people in prison may experience a limitation of their rights in sections 10(b) and 22(1) of the Charter, the limitation of the right to open air may have an additional, disproportionate impact on the rights of Aboriginal people in prison under article 7(1).

In considering whether the differential effects of the Bill on Aboriginal people results in ‘unequal enjoyment’ of these human rights, I have considered the degree to which the difference in enjoyment of these rights is inconsistent with First Peoples being afforded equal dignity and respect.

For clauses providing no amounts are payable by the State for past limitations of the right to be in open air, I consider that the Bill has a differential practical effect on First Peoples. This is on the basis that while the no amounts payable clauses apply universally to all people in prison, Aboriginal people are disproportionately represented in the prison population and within the separated cohort most likely to have experienced limitations on open air access.

As such, Aboriginal people are likely to form a disproportionately high proportion of prospective claimants affected by the removal of the monetary remedy.

I consider that the differential effect results in a difference in enjoyment of such rights and freedoms that it may result in First Peoples not being afforded equal dignity and respect. However, in my opinion this impact on the rights of First Peoples is still compatible with the equal enjoyment of human rights and fundamental freedoms by First Peoples. This is informed by a consideration of proportionality using section 7(2) of the Charter, regarding the limitations on rights under sections 20, 22(1), or 24 of the Charter and articles 7 and 40 of UNDRIP.

I form this view that the limitations on these rights are proportionate on the basis that:

•   The reforms have been implemented for the legitimate purposes of limiting the State’s financial exposure to claims following the Marrogi case. As outlined above, people could bring claims following the Marrogi case, which could result in the State needing to pay compensation. The relevant provisions will assist in limiting costs to the State of these potential claims and instead ensure funds can be directed towards benefiting all Victorians.

•   These provisions are appropriately confined to achieving this purpose, given they:

• do not seek to extinguish all causes of action and still enable individuals to bring claims for past limitations on the right to be in open air, as well as not prohibiting other forms of non-monetary relief from being sought and awarded;

• do not interfere with any amounts already determined as payable in proceedings finalised before the Bill commences; and

• do not limit amounts payable for limitations of the right to be in open air that occur after the Bill commences―the limitation on amounts payable is restricted to claims brought for any limitations of the right to be in open air in section 47(1)(a) that accrued before the Bill commences and were not determined before this date.

For the clauses limiting the right to open air, I acknowledge that these clauses may result in the unequal enjoyment of human rights and fundamental freedoms of First Peoples, including rights under sections 10(b) and 22(1) of the Charter and under article 7 of UNDRIP.

There are a number of factors that assist in mitigating the impact of these limitations. These provisions have been enacted for the legitimate policy purpose of enabling the right to be in open air to be limited for operational considerations. This ensures that the entitlement can be managed in a safe way, alongside other critical concerns, including the security and safety of all people in prison. This is particularly important in the highly complex operating environment of prisons.

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 based on operational reasons, as well as in one-off, unexpected or non-routine circumstances. For example, it may be necessary for higher risk prisoners in long term management to only have access to a rear yard, and therefore not receive their daily open air entitlement, over an extended period of time. Providing access to open air in these circumstances can create significant safety risks and/or result in open air rights becoming unavailable to other prisoners. In such a case, it is intended that new section 47(1)(a)(i) would permit the right to be in open air to be limited for the duration that those physical and operational constraints prevail. In this way the reforms are intended to address the exact scenario that arose in Mr Marrogi’s case, and similar cases involving higher risk prisoners in high security and management units.

These provisions are also appropriately confined given, they only enable the right to be in open air to be limited based on operational considerations―they do not enable the right to be limited at large. In addition, the Bill expressly provides, that the ‘safe custody, welfare and rights’ of the person in prison and any other people in prison, may be considered (in addition to other relevant operation considerations). This provides scope for the safe custody, welfare and rights of Aboriginal people in prison to be taken into account in all decisions around access to open air.

However, I acknowledge that these factors do not completely mitigate the risk of undue limits being imposed on rights under sections 10(b) and 22(1) of the Charter and impacts under article 7 of UNDRIP, and may not always be proportionate to achieving their purpose. This may be particularly the case where limitations of the right to be in open air continue over a longer period, due to certain operational conditions persisting.

For this reason, the Bill contains override declarations expressly providing that the Charter does not apply to provisions which limit the right to be in open air. They also contain a sub-section providing that the override provisions do not need to be re-enacted every 5 years, meaning the override applies in perpetuity. In this exceptional case, the Charter is being overridden and its application excluded to ensure access to open air in prison can continue to be managed safely, alongside other critical considerations.

I acknowledge that the effect of the provisions, including the Charter override, may result in a difference in enjoyment of human rights and fundamental freedoms held by First Peoples that it is inconsistent with First Peoples being afforded equal dignity and respect, particularly given the overrepresentation of Aboriginal people in custody and people who have been separated.

I further note that both the Yoorrook Justice Commission and the independent Cultural Review of the Adult Custodial Corrections System found that racism persists in the Victorian justice system, including the corrections system, and drives overrepresentation and poor treatment of Aboriginal people in prisons. Implementation of the provisions in this context will require careful consideration of the cultural rights of Aboriginal people. More broadly, the Government continues to support reform of the custodial correctional system and acknowledges long-term change and future investment will be required.

The confined nature of the Bill, in conjunction with existing operational CV policies around managing Aboriginal people in prison, will assist in mitigating this impact.

In my opinion the Bill is, therefore, in part incompatible with the objects specified in section 66(3)(d)(iii) of the Statewide Treaty Act 2025.

Conclusion

For the reasons set out above, in my opinion, the Bill is, in part, compatible with the objectives set out at section 66(3)(d)(i)–(iii) of the Statewide Treaty Act 2025.

 Paul HAMER (Box Hill – Minister for Local Government, Minister for Youth Justice, Minister for Corrections) (15:02): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Bill will amend the right of people in prison to be in open air under the Corrections Act 1986. Section 47(1)(a) of that Act provides that every person in prison who is not ordinarily engaged in outdoor work has the right to spend at least one hour each day in the open air, weather permitting.

The Bill provides that, in addition to any weather considerations, the right to be in open air may be limited where it is not reasonably practicable to provide the entitlement, having regard to operational considerations. The Bill also provides that no amounts are payable by the State for any limitations of the right to open air that accrued before its commencement.

The amendments in the Bill respond to the Supreme Court’s judgement in Marrogi v Secretary, Department of Justice and Community Safety & Ors (No 1) [2026] VSC 4 (Marrogi case). At the time of consideration of this Bill in the Parliament, that decision is subject to an appeal brought on behalf of the State.

The Bill addresses legal, financial and operational risks arising from the Marrogi case. It ensures that Corrections Victoria (CV) can continue to manage access to open air safely, alongside operational considerations critical to the safe, secure, and effective functioning of prisons. It also limits the State’s financial exposure to other legal claims that could follow the Marrogi case.

The right to open air

The Bill amends section 47(1)(a) of the Corrections Act to provide that, in addition to weather considerations, the right to be in open air may be limited where it is not reasonably practicable to provide the full entitlement, having regard to operational considerations. Operational considerations is a broad term that is not defined, but the Bill specifies that it includes:

•   the management, good order, or security of the prison;

•   the rights, safe custody, or welfare of the prisoner;

•   the rights, safe custody, or welfare of any other prisoner in the prison.

These amendments enable access to open air to be managed alongside operational considerations, including to ensure the management, good order and security of the system and the safety of people in prison and prison staff.

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.

In relation to one-off, unexpected or non-routine circumstances, these may arise for a range of reasons, and result in it not being reasonably practicable for a prisoner to be provided open air on a given day or for a period of time. For example, this might arise where a person is separated for a duration after an incident, to protect their or another person’s safety.

In relation to ongoing and extended limitations of open air, it may be necessary for example for higher risk prisoners in long term management to only have access to a rear yard over an extended period of time. This reflects longstanding practice across the prison system.

Conversely, providing higher risk prisoners in long term management access to open air in other areas of the prison such as external exercise yards can create significant operational impacts. These may include safety risks to staff and other people in prison, and could result in open air rights becoming unavailable to other prisoners. In such a case, it is intended that new section 47(1)(a)(i) would permit the right to open air to be limited for the duration that those operational constraints prevail, to support the safe management of the prison system.

In this way the reforms are intended to address the exact scenario that arose in Mr Marrogi’s case, and similar cases involving higher risk prisoners in high security and management units. The operational reality of the system is that it is not reasonably practicable to provide each person in prison who currently has access to a private rear courtyard with their daily right to be in open air in alternative yards.

For example, there are complex security and safety risks posed by people in high security or management units, which would require them to be escorted by staff to exercise yards and in communal spaces, either alone or under very limited circumstances with one or two other approved prisoners. Providing this cohort with access to open air could therefore be to the detriment of other people in prison, and create risks to staff safety.

Plausible infrastructure changes would still not provide a solution to the operational challenge of providing daily access to open air to every person in prison. In particular, given the security risks posed by the cohort of people held in high security and management units, there may not be any suitable infrastructure solutions available which allow access to open air while also maintaining safety and security in the prison system.

The limitation on the right to be in open air is also appropriately confined, further ensuring it provides for safe, holistic management of access to open air. Limitation of the right is only available due to operational considerations.

Nevertheless, the Government accepts that sections limiting the right to be in open air may be incompatible with some Charter rights. New section 47AAA therefore includes subsections providing that the Charter does not apply to this provision, and that those override declarations do not need to be re-enacted every 5 years (as is ordinarily required under section 31(7) of the Charter).

The Government does not take this step lightly. In this exceptional case, the Charter is being overridden and its application excluded to ensure access to open air in prison can continue to be managed safely, alongside operational considerations. This is particularly important in the highly complex operating environment of prisons, which require careful management of multiple interests and people with varying needs.

Limiting liability for past breaches

The Bill further provides that no amount is payable to any person, for any loss or damage arising from or in connection to a limitation of the right to be in open air that occurred before the Bill commenced. These provisions:

•   will apply to any proceedings that are on foot and have not been finally determined before the Bill commences, and

•   will not apply to any proceedings that were finally determined before the Bill commenced.

The amendments will help limit the State’s financial exposure to legal claims that may follow the Marrogi case.

Importantly, these measures in the Bill are appropriately confined to ensure they strike the right balance between limiting unnecessary financial compensation and providing fairness in legal proceedings. The amendments will not disturb any proceedings finalised before the Bill’s commencement, including any amounts determined by a court to be payable. The Bill also still enables claims to be brought for past limitations of the right to open air, only limiting the relief available to successful claimants. Finally, the Bill will not limit amounts payable for any limitations of the right to open air that accrue after the Bill commences, under the new amended sections.

Conclusion

Access to open air remains an important part of humane prison conditions, and the system will continue to provide the right wherever safe and reasonably practicable, consistent with current practice.

These reforms help strike the balance between ensuring people in prison obtain the benefits of being in open air where practicable, while also enabling the continued safe and secure operation of the system. The Bill also minimises the State’s financial exposure to past limitations of the right to open air. This ensures resources are reserved for the broader community’s benefit, including to preserve an effective criminal justice system for all.

I commend the Bill to the house.

 James NEWBURY (Brighton) (15:02): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday 2 July.