Thursday, 13 August 2026

 Enver ERDOGAN (Northern Metropolitan – Minister for Finance, Minister for Casino, Gaming and Liquor Regulation, Minister for Government Services) (17:04): I am pleased to rise to give my summation speech for the Corrections Amendment Bill 2026. At the outset I do want to acknowledge the large number of parliamentary colleagues that have addressed this bill before us, although I will note that many of them moved well beyond the scope of the legislation, which is a targeted bill that will provide legal certainty for Victoria’s corrections system going forward and is ultimately about ensuring that our corrections system can operate safely, securely and effectively.

First, it provides a practical update to the existing right of people to access open air, an update that is required as a recent Supreme Court determination has really overturned what we believed was a consistent way these matters were dealt with and how the system has operated for over 20 years. The second aspect of the bill addresses an administrative oversight relating to the delegation of powers to community corrections advanced practitioners.

Let me be very clear what this bill does not do. The bill does not abolish the right to open air. It does provide some practical limitations, however, to have the right to at least 1 hour of open space each day, weather permitting. The bill amends section 47(1)(a) of the Corrections Act 1986, which provides that every person in prison has, if not ordinarily engaged in outdoor work, the right to be in open air for at least 1 hour each day if the weather permits. The amendment to this section provides that this right does not apply in circumstances where it is not reasonably practicable in light of operational considerations. Those considerations do include the management, good order and security of the prison; the safe custody, welfare and rights of the prisoner concerned; the safe custody, welfare and rights of other prisoners; and the safety of our corrections staff.

The reform arises following the Supreme Court’s decision in a pretty high-profile case, where the court found that the rear courtyards attached to cells in certain high-security and management units did not constitute being in the open air for the purposes of the Corrections Act. Those courtyards have been used by Corrections Victoria for around 20 years as a means of providing access to open air. The court judgement therefore creates significant legal, operational and financial implications for the corrections system and our justice system. Under these circumstances we have introduced these measures to restore the functional and practical application of the right to open-air access. Safety must come first, and we make no apologies for that.

The government acknowledges that as part of these reforms there are provisions that do impact the human rights charter. In this instance there is a requirement for one of those rights to be overridden, giving prisoners the right to open air if it does not compromise the safety or wellbeing of prison staff, other prisoners or visitors. We have had to have a charter override in this regard, and it is not a position that the government takes lightly. It is not often we override the Charter of Human Rights and Responsibilities, but it is required from time to time.

These provisions are consistent with other comparable jurisdictions, including New South Wales, where entitlements are subject to the practical limitation that may, from time to time, arise in connection with the administration of the correctional centre concerned. New South Wales have these options and their legislation is drafted similarly to the way we will be drafting ours now. Of course they do not have charter obligations as we do in Victoria.

Notwithstanding the safety concerns, the bill also addresses the potential financial liabilities arising from the court decision and its implications. We have a responsibility to ensure the state’s resources continue to be directed towards services and infrastructure that benefit all Victorians.

I will now briefly turn to the less controversial part of the bill. Due to an administrative oversight the written instrument delegating the secretary’s legislative powers was not updated to reflect the establishment of the advanced practitioner position. As a result, between 29 April 2024 and 18 May 2026 certain actions were taken by advanced practitioners without appropriate written delegations being in place. A new delegation was put in place on 18 May this year. The issue was an administrative defect in the written delegation, not the validity of the original community correction orders themselves. We should not allow an administrative oversight to undermine community safety or confidence in our system or provide a free pass where a person has fallen foul and failed to comply with a valid order of the court, and that is why this house amendment will validate certain actions taken by advanced practitioners during this relevant period.

Corrections legislation must reflect operational reality. It must provide prisoners rights, but safety must always be paramount. Flexibility to account for operational considerations is a key safety feature in much of our justice system, and it is required now in our corrections system. Our corrections officers have a difficult and demanding role. They are front line in keeping us safe. I previously, as corrections minister, had the privilege and honour of meeting many corrections officers that do amazing work. They are passionate about keeping our community safe, but they are also passionate about giving those in their custody and care the opportunity to rehabilitate. The measures contained in this bill are necessary and are targeted to provide certainty for Corrections Victoria, to support the safety of our staff and people in custody and to protect the integrity of community correction orders. I commend the bill to the house.

Council divided on motion:

 The PRESIDENT (17:16): I have considered the amendments on sheet KC81C circulated by Ms Copsey. In my view the amendments are not within the scope of the bill. Therefore an instruction motion pursuant to standing order 14.11 is required. I remind the house an instruction motion to committee is a procedural motion.

 Katherine COPSEY (Southern Metropolitan) (17:17): I move:

That it be an instruction to the committee that they have the power to consider amendments and new clauses to amend the Corrections Act 1986 to further provide for persons detained in police gaols.

 Enver ERDOGAN (Northern Metropolitan – Minister for Finance, Minister for Casino, Gaming and Liquor Regulation, Minister for Government Services) (17:17): Normally the government would not accept out-of-scope amendments of this nature, but in the interests of brevity we will not be opposing in this instance.

Motion agreed to.

Committed.

Enver ERDOGAN: The government has an amendment which I seek to circulate now.

Clause 1 (17:20)

Katherine COPSEY: Minister, the statement of compatibility recognises that Aboriginal people will be disproportionately impacted by this bill, and Gellung Warl have exercised their powers under the Statewide Treaty Act 2025 to request the government to withdraw the bill. How can the government proceed with this bill when it is in clear contradiction of the aims of treaty and provides no protection for Aboriginal people in prison against excessive and unnecessary restrictions on their right to fresh air?

Enver ERDOGAN: I thank Ms Copsey for her question, which touched on a really important issue, in particular our government’s commitment to treaty. In the correctional context, given that the loss of liberty is an inherent condition of custody, it is necessary that some of the rights of prisoners are limited by the fact that they are in a custodial setting. I do understand the view of the First Peoples’ Assembly and the fact that they do not support this bill. The government’s position is that this bill is necessary and affects all prisoners equally, but because Aboriginal people are over-represented in prison, it will have a greater effect on Aboriginal Victorians.

Rachel PAYNE: I will just refer to what the Minister for Children said in their second-reading speech and then I will ask the question. The minister said:

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.

I want to test that word ‘exceptional’. Section 31 of the Charter of Human Rights and Responsibilities Act 2006 builds in a five-year sunset precisely because any override is meant to be exceptional and temporary so that a future Parliament must consciously rejustify it. New section 47AAA(3) strips that sunset out. How can an override be exceptional at the same time as permanent and indefinite?

Enver ERDOGAN: We would say that with the operational realities of the prison environment and especially the cohort of prisoners that these reforms are targeted to we will need a permanent change to the act, not just one that sunsets after five years. Therefore that is why we do not support a sunset clause in this instance.

Rachel PAYNE: The minister said the override is needed so open air can be managed safely alongside operational considerations. This is a description of ongoing routine prison management, nothing exceptional. Can the minister explain to this house why this government believes it should never again have to justify these operational considerations to any Parliament – not in five years, not in 50? What is it about this particular limitation on human rights that means it alone should outlive every member of this chamber?

Enver ERDOGAN: I will take that last point you made. It does not override the will of this chamber. Ultimately a future government may wish to change the settings of the correctional system and would have opportunities to further amend the legislation, as we do other pieces of legislation from time to time. It just means that in relation to the charter of human rights there will not be a sunset clause, but there is nothing prohibiting a future government from revisiting the Corrections Act 1986 and making adjustments as it sees fit.

Rachel PAYNE: The explanatory memorandum states the right may:

… be limited … on an ongoing basis or for extended periods …

The Nelson Mandela Rules define prolonged solitary confinement as 22 hours or more a day without meaningful human contact for more than 15 consecutive days. We know that prolonged solitary confinement can amount to cruel, inhumane or degrading treatment and torture and is prohibited under international law. Does this bill permit a person to be denied access to open air for longer than 15 days?

Enver ERDOGAN: Context is important here. This provides operational flexibility in instances where it is not possible to provide those out-of-cell hours as described in the recent judgement. But most prisoners do have long out-of-cell hours, depending on which prison setting they are in. Minimum-security prisons usually have longer out-of-cell hours, medium have a bit less and then maximums have even less. But on average, Victoria in fact has better-than-average out-of-cell hours across our corrections system. I know that is something that Ms Payne has been quite passionate about. We always aim to do better because there are always challenges where it is not possible to meet our relatively high standards when it comes to out-of-cell hours for prisoners. Therefore I would not accept your categorisation that this would be necessarily a breach of human rights.

Humane treatment of people in our care is something that we are focused on, but especially for this more difficult cohort, who provide a challenge not only for staff but for other prisoners, the type of out-of-cell hours they have may be different. We are talking about, for those that have read the judgement, a courtyard that the court found was not enough for this really complex cohort of prisoners – because of the prison design – but also the operational risk that is involved in managing this high-risk cohort of prisoners. This will allow the flexibility for the corrections system to meet its operational needs, but for the vast majority of prisoners it will have no impact.

Rachel PAYNE: Minister, just to clarify, there would be nothing in this legislation that would preclude future governments or future institutions from using this bill to justify someone being denied access to fresh air for longer than a 15-day period, though. Is that correct?

Enver ERDOGAN: The legislation sets out criteria that would need to be fulfilled for that exception to be met. I am not sure how you could meet that for 15 days straight. I think there would be other oversight bodies that would have quite a significant interest in that. As we know, our prison system is covered by the Ombudsman and IBAC, and we have the independent prisons scheme. There is a lot of oversight in the existing system such that what you have described would be unacceptable, because there are criteria that need to be fulfilled to deny someone that right to out-of-cell hours – or to limit them more so than deny them.

Rachel PAYNE: I agree it would be unacceptable. Under international human rights law, freedom from cruel, inhumane and degrading treatment is an absolute right, one that cannot be limited under any circumstances, in recognition that such treatment is fundamentally incompatible with human dignity. Australia has binding obligations to ensure people are free from it. Does the government accept that this bill violates those obligations, and does it accept that this bill green-lights treatment prohibited under international law in perpetuity?

Enver ERDOGAN: In short, no. We would say this brings us into line with other comparable states – for example, New South Wales, which has a section which states:

… subject to the practical limitations that may from time to time arise in connection with the administration of the correctional centre concerned.

Many jurisdictions have similar sections where the goal is to provide out-of-cell access to air, light and open air, and of course that is what takes place in our correctional facilities. As I stated earlier, Victoria usually performs quite well in average out-of-cell hours across our correctional system, but by the fact that people are in custody, some of their rights must be limited. They forgo them when they commit their offences, and that is why they are in a custodial facility – like the right to be free outside. So in short, the answer is no; I would not accept that.

Rachel PAYNE: In relation to compensation, compensation is not a windfall, it is a court’s assessment of how serious a harm is and of what it will take for a person to recover from it. So when this government legislates to extinguish compensation, it is not just saving itself money, it is walking away from the recovery of people it has harmed. Can the minister confirm what this clause concedes: that the government knows the harm caused by denying people fresh air is serious and that its response is not to repair that harm but to ensure no-one is ever helped to recover from it and the state is never held to account for causing it?

Enver ERDOGAN: I think the starting point is: in an operational sense, although we are changing the legislative instrument and the laws, the goal is to continue the existing practice, where people are provided with open air, albeit the court has said it does not fulfil that requirement for this high-risk cohort. On the issue about financial responsibility and risk, yes, there is one, and we believe we should be limiting that for this cohort of prisoners. There is a reason why they are in a management unit.

Rachel PAYNE: We know that almost everyone in prison comes home. A person harmed inside and then denied the very support that would help them recover does not come home safer; they will come home more damaged, with less. So when the government blocks compensation, it is not protecting the community, it is manufacturing the next harm and sending it back into our neighbourhoods. How does the minister say this makes anyone safer?

Enver ERDOGAN: I understand that this legislation is required for the safety of staff and prisoners in the system at this point. There is a reason why some of these prisoners cannot be in the general population. It is because of their risk to themselves and to others, including our hardworking staff. Therefore we say this makes the corrections system safer and therefore our community safer.

Rachel PAYNE: The Australian National Preventive Mechanism, the network of independent bodies designated under Australia’s international obligations to prevent torture and ill treatment of people deprived of their liberty, has issued a joint statement on this bill. It makes a simple point: when courts identify that minimum standards of humane treatment have not been met:

… the response should be to strengthen the systems that uphold them – not to weaken the safeguards themselves.

This bill does the opposite. Can the minister tell the house: has the government formally responded to that statement, and if so, what is the answer to the national torture prevention body’s finding that this bill will weaken exactly the protections it exists to defend?

Enver ERDOGAN: I might just go to the box.

Ms Payne, in relation to that report you referred to, I will need to take on notice whether there has been a formal response. But in relation to your point about OPCAT, you are right, the Australian government did sign the Optional Protocol to the Convention against Torture, including establishing a national preventive mechanism (NPM) to coordinate and conduct visits to places of detention to monitor the treatment of persons.

We do also have existing oversight, as I have talked about earlier, with the Ombudsman, IBAC, Victorian Equal Opportunity and Human Rights Commission and the Office of the Chief Psychiatrist. There are a number of bodies that have provided reports into the conditions in our correctional system. In relation to OPCAT and the establishment of a national preventive mechanism here, there is an ongoing dispute, or, let us say, misunderstanding, between the state and Commonwealth about funding for that protocol that the Commonwealth signed on to. I understand there has been facilitation of a visit nonetheless, but the full protocols, in terms of the national preventive mechanism, have not been set up due to the lack of Commonwealth funding.

Rachel PAYNE: So until Victoria designates an NPM, or OPCAT, there is no independent body able to see how this power is exercised. Therefore will the minister accept an amendment requiring the secretary to record and report to Parliament each occasion a prisoner is denied their entitlement to open air, the duration and the grounds relied on?

Enver ERDOGAN: In short, no, because we believe there is robust oversight in place already. The independent prison visitors, the Ombudsman, IBAC – a lot of these agencies have actually provided a lot of reports in relation to correctional settings. Some have been obviously quite negative; some have been more positive. So we do not believe that that is needed, and we will not be committing to that.

Rachel PAYNE: If you could just indulge me, please. Just to clarify: are the oversight bodies that currently have access to providing that oversight of corrections – the Victorian Ombudsman, IBAC and the like – proactively engaging with each of those corrections facilities, or are they just responding to complaints?

Enver ERDOGAN: I think the way the agencies operate in relation to enforcement of their duties is a question probably better addressed to those agencies, to be fair.

Rachel PAYNE: I will take that offline. Without an NPM, can the minister set out specifically what internal oversight exists within Corrections Victoria to prevent operational considerations becoming a standard excuse, or a box ticked on unstaffed days, rather than a genuine exception that the minister claims it can be, not what he hopes staff will do but a mechanism required and set out. Can the minister point to a single provision in this bill that would detect, flag or prevent operational considerations being relied on more often than genuinely necessary?

Enver ERDOGAN: That is a very operationally detailed question, but each prison has a general manager and there is a quality assurance system in place for the teams that they lead. In terms of this work, government does report of course on average out-of-cell hours across the system, so there is some public reporting. Nonetheless, from prison to prison, that responsibility falls on the management team there and the corrections commissioner overall to ensure that that does not happen.

Rachel PAYNE: The amending act repeals itself after 12 months but the amendments remain in force permanently, and the bill contains no mechanism to record how often, for how long or on what grounds a person is denied open air. Will the government support an amendment requiring the secretary to report annually to Parliament on the use of these powers, and will it commit to implementing Victoria’s long-overdue independent prison oversight through OPCAT so that these decisions are subject to genuine external scrutiny rather than taken entirely behind closed doors?

Enver ERDOGAN: No.

Rachel PAYNE: Over the past 18 months there has been an increase in facility-wide lockdowns across prisons in Victoria, including as a result of staff shortages. Often this means that people are denied access to fresh air. Do the government admit that they are passing this bill to legalise the inhumane conditions imposed by rolling lockdowns?

Enver ERDOGAN: No. I think we have been up-front that this is about addressing the issue that was raised in the recent court case, which in particular affects that high-risk cohort.

Rachel PAYNE: Just to extend on that question, the human rights commissioner and the Victorian Ombudsman have been active in highlighting the issues of ongoing lockdowns, and I am trying to understand how these human rights and integrity agencies have that oversight and can provide that feedback to government but we still see the outcomes of rolling lockdowns and potential further risks for those that are in prison. Can you please confirm that you have been actively working with the integrity agencies – for example, the Victorian Ombudsman and the human rights commission – on precluding some of these ongoing issues?

Enver ERDOGAN: I can say that the department and the corrections commissioner work closely with their workforce and the union. There are oversight bodies addressing some of these operational challenges, and there are operational challenges and the need for lockdowns from time to time for a number of reasons. One could be staffing, which could impact the safety and security of the premises. Also these are dynamic environments where there are incidents, and they need to respond to incidents appropriately. There are a number of reasons why a lockdown may be needed, but I think overall there is public reporting on out-of-cell hours on average. If you could look at those statistics, Victoria has performed quite well over a number of years. You always want to do better and you aim for better, but it is not always possible. This is a difficult cohort of people; that is why they are in the corrections system.

Rachel PAYNE: I appreciate that response. Under this bill, prison staff can deny a person their access to fresh air without any requirement to first consider whether there is another way to manage the operational problem. Nothing obliges them to ask: is there a reasonable alternative? Is there a short step of taking away the 1 hour outside, and can the minister explain why the government drafted a power to remove a fundamental protection without requiring anyone to first exhaust the alternatives?

Enver ERDOGAN: We believe that there is no practical alternative, especially for the high-risk cohort that this case was based upon. We believe they provide a big risk to staff in particular, but also to other prisoners. Fundamentally, that was the conclusion that was drawn. I am sure if there was a non-legislative option the government would have been happy to take a non-legislative option to correct this issue. But the conclusion was there is not, and that is why this amendment is needed. This amendment, for general practice, should mean no change to anybody. It effectively just reaffirms what has been the practice for 20 years in relation to the courtyards in some of these higher risk management units. That is the goal here, and it brings our legislative definition more in line with New South Wales to provide that flexibility.

Rachel PAYNE: Just in regard to prisoners on remand, over 50 per cent of women in Victorian prisons are on remand. They have not been sentenced; many will never be sentenced. They will be acquitted or have charges dropped or receive a non-custodial order at the end of it. Under this bill, those women can be denied access to fresh air on operational grounds indefinitely, with no requirement that anyone revisit the decision. Can the minister explain what the government would say to a woman who is denied the sky for weeks and is then found not guilty?

Enver ERDOGAN: I think just going back to the earlier point we made, the goal here is to operationalise what we believe is the status quo, not to make a change. The legislation needs to be changed because the court interpreted that the current practice did not meet the definition of the existing law, so we are amending the laws to reflect the practice.

Rachel PAYNE: This will be my last question for the committee stage. In 2024 during the debate on the State Civil Liability (Police Informants) Bill 2024 this government told the Council that once the substantive provision was amended, any limitations on rights could be justified and the override was therefore no longer needed. Does the minister accept that reasoning? And if an override is only necessary when a limitation on rights cannot be justified, can the minister confirm what the inclusion of an override in this bill concedes?

Enver ERDOGAN: Ms Payne, I am reluctant to reflect on the previous legislation because I was not the Attorney-General at that time nor am I at this time. But in relation to the second part of your question, I will just seek an answer.

I cannot reflect on the previous legislation or compare because they are different pieces of law. Nonetheless what I will say is in this instance the department has received advice that it is required. Again, all our settings are now going to be definitions closer to New South Wales. I do remind you that New South Wales does not have a charter. There is no equivalent override there, because they do not have a charter. But now, in this instance, it is required.

Renee HEATH: My question is, just to confirm, the cohort that this relates to are violent and high-risk offenders, correct?

Enver ERDOGAN: These legislative changes, in terms of the act, apply to everybody, but the practical implication will be in relation to the high-risk cohort, which the court determined for the courtyard. Because everyone else – many, many prisoners; the majority – are in the general population. They could go into the yard. Now they go to the gym; I note that that is a popular exercise across the men’s system. But in relation to the reason for the need for the change, the change will apply broadly. It could be interpreted broadly, but that is not the practical effect. The operational effect that is intended is for this high-risk cohort, yes.

Renee HEATH: The reason that it applies to these violent and high-risk offenders is because they pose a risk either to the staff or to other prisoners, correct?

Enver ERDOGAN: Yes, Dr Heath.

Renee HEATH: If prisoners are not getting financial compensation because the government have exempted themselves from that, what are they getting instead?

Enver ERDOGAN: I might get clarification on that. I did have one case that I do recall now. Maybe I will get clarification, but I understand that sometimes the court can make an order that their treatment was unfair but they do not get any money. I know there was a case of that. That is usually just a declaration that does not have a practical financial benefit. But I am happy to take a supplementary. I suspect I know where you are going.

Renee HEATH: It says in the bill here in clause 4, in relation to section 47(1)(a), that it does not prevent the award of non-monetary relief, so what are they getting instead?

Enver ERDOGAN: Just for clarification, Dr Heath, are you asking if they would be eligible for emergency management days (EMDs) as a result?

Renee Heath interjected.

Enver ERDOGAN: I will seek guidance.

It has been explained to me that these prisoners would not be eligible for EMDs because the categories of when a prisoner becomes eligible for EMDs do not cover restriction of open-air access itself as a reason for EMDs. EMDs are not granted by the courts. They are granted by the commissioner, so therefore it would not be the commissioner’s intention to grant EMDs because there is a declaration that they have been denied this open air.

Renee HEATH: So I can confirm, and I can confirm here on record, that none of these prisoners, because of the lack of financial compensation, will get any time off their sentence as a result? I want you to explicitly say that.

Enver ERDOGAN: I am not the corrections commissioner, so I will seek some guidance.

I have been advised that no EMDs have been granted for the restriction on access to open air.

Renee HEATH: Can you confirm none will be?

Enver ERDOGAN: EMD-granting powers are for the commissioner, so it is remiss of me to second-guess their judgement in relation to the granting of EMDs. I do understand you have strong concerns with the number of EMDs that have been granted historically by the commissioner. I understand those concerns. I am sympathetic to those concerns. But in relation to restricting the commissioner from carrying out her duties, I do not believe it would be appropriate to instruct her in the way she grants EMDs. There is a list that we set as policy, or that the corrections commissioner sets, but ultimately the granting of those EMDs is a matter for the commissioner.

Renee HEATH: The Corrections Act 1986, in part 8, division 3A, section 58E(1), states:

The Secretary may, in accordance with the regulations, reduce the length of a sentence of imprisonment being served by a person or the length of the non-parole period …

Going down to (2), it says:

Subsection (1) applies to all sentences of imprisonment, including any imposed for murder.

It is pretty worrying, and I just want to put on record here that it does not meet public expectation when people are given an early non-parole period because of an operational issue. I think prisoners, by the way, should have access to open air – absolutely. I think all of us here agree on that, but it is completely unacceptable that the government is essentially exempting itself from financial liability but is not explicitly ruling out that these violent and high-risk offenders that are being restricted in open-air access because (a) they pose a threat to the staff and (b) they pose a threat to other people around them are potentially getting out of prison early beyond their non-parole period, and you cannot rule it out. I hope you understand where I am coming from.

Enver ERDOGAN: I will take that more as a comment than a question, Dr Heath, if that suffices.

Moira DEEMING: I have been trying very hard to listen whilst also being spoken to, so I am sorry if I ask something that has already been asked. Can the minister just confirm, first of all, that clause 1 states the entire purpose of the bill.

Enver ERDOGAN: Yes, it does. Of course there is an amendment in relation to the administrative error with the advanced practitioners, but yes, the purpose is all confined.

Moira DEEMING: Can the minister please explain why the purpose clause makes no reference to the permanent exclusion of the Charter of Human Rights and Responsibilities?

Enver ERDOGAN: There is a statement of compatibility attached with all our legislation which states the need for an override.

Moira DEEMING: Why does the purpose clause make no reference to the retrospective extinguishment of damages claims under the new section 111AA?

Enver ERDOGAN: It does reference the fact that we are changing the legislation in relation to the open-air requirement; that is the real effective change. It is giving that flexibility in relation to this difficult cohort. We would say that the purpose is all in there and the reason why this legislation is coming to this place in the first place.

Moira DEEMING: I do not know if you would say solely the purpose of the bill is making the open-air rights subject to operational considerations. Does the government regard the permanent removal of charter scrutiny as merely incidental to the purpose or as a central feature of the bill?

Enver ERDOGAN: We believe it is essential, because like I said, this brings us into line with the practice and the laws in New South Wales, but they do not have a charter. As I said before, because of the way our charter operates, we require this override to bring this legislation to fruition.

Moira DEEMING: Does the government regard the retrospective bar on damages as merely incidental to the purpose or as a central feature of the bill?

Enver ERDOGAN: We would say it is essential in terms of the finances of the state and the corrections system, because limiting the financial liability means more money can be put elsewhere. Nonetheless, the legislation could pass without those limitations, and it would still help operationalise what is needed. But that would leave an avenue, potentially, for some of that really high-risk and dangerous cohort to have access to potential financial compensation, which we do not believe they should receive.

Moira DEEMING: If a court is later asked to interpret the scope of the amendments, should it treat the purpose clause as a complete statement of Parliament’s intention?

Enver ERDOGAN: I will just get some guidance.

We are of the view that the purpose clause is a high-level summary of what we are trying to achieve.

Moira DEEMING: Minister, you have said – if I can try my best to summarise – that these amendments cover all cohorts and all prisons, but you have said that in its operational effect it will only impact specific cohorts. I do not understand how that can be.

Enver ERDOGAN: The legislation as it stands today says 1 hour, but most prisoners are getting 7, 8, 9, 10 out-of-cell hours. Obviously we have had to change the legislation for all prisoners, but the practical effect will be that for those prisoners that currently only get their out-of-cell hours in that courtyard, that will be acceptable to the court, because the court has said that that courtyard that we have created for this high-risk management unit of prisoners does not meet the current requirement. So it will give operational flexibility.

Moira DEEMING: Did the government assess the costs in regard to fixing the architectural issues as opposed to just cancelling the damages and making these amendments?

Enver ERDOGAN: I do not want to verbal the Minister for Corrections or the department, but I understand that all options were explored. There was a genuine concern that even an architectural fix for this difficult cohort might not necessarily resolve the issues, because this is a cohort that are, as Dr Heath has identified, a risk to themselves, a risk to other prisoners and, most importantly, a risk to staff. Even if you change the physical infrastructure, you are still going to have the individuals that are difficult and pose a high level of risk, and an architectural solution might not absolve the state from the court’s decision, effectively.

Moira DEEMING: Could the minister please explain the difference – you are restricting a right, but what you are referring to is the management of these prisoners in one context. They are manageable inside the prison, but they are not manageable in some kind of outdoor-air design. We are quibbling over the design, but that sounds like a management issue, whereas you have restricted a right rather than changing management practice.

Enver ERDOGAN: In response to that, what I will say is that this is a really difficult cohort. Like I said, they are in a management unit, usually, and are a higher risk cohort that have a past history of offending towards staff and other prisoners. Therefore if you were to try and manage them without that flexibility, it would just increase risk to everyone else in the system. It is about balancing risk here, and the balance is, yes, they are going to have their open air within this space, which is effectively a courtyard instead of a broader open space, but having that arrangement mitigates risk for staff, who would have greater risk if they had to escort them to somewhere else, effectively.

Moira DEEMING: If the issue is about keeping staff safe and all those operational issues and it is about having to escort them somewhere else, that sounds to me, again, like this could have been fixed through fixing a building design rather than wholesale giving yourselves an exception to a human right. Could you please identify for us the exact design features that have made it so important to restrict this right, as defined by the court case, if possible?

Enver ERDOGAN: I do understand. We get the angle, Mrs Deeming, but like I said, I am not sure if an architectural fix alone would fix it for this cohort. Mind you, there might be an architectural fix that resolves part of the issue, and I am sure it would be expensive and extensive. Nonetheless, we believe this is more practical in the day-to-day settings for this difficult cohort.

Moira DEEMING: I still am not hearing the difference between being able to manage a prisoner in one environment as opposed to an open-air environment and what is functionally different to the point where you would have to restrict the right. What is so different about that environment that it is operationally impossible to give them their rights?

Enver ERDOGAN: Back to first principles: these prisoners are provided with access to open air. That was our interpretation for over 20 years. There is a courtyard; they get open air. But because there are climb risks in some of these courtyards, there is effectively what the court described as mesh or netting to prevent climbing because they are such a high-risk cohort. Therefore our view is after this legislation, if it were to pass, the practice would not change. They would still have the same access to the courtyards they have already, but those courtyards do have mesh over them because they are high-risk, and climbing, as we have seen in youth justice and adult corrections, is a common problem.

Moira DEEMING: I still find it difficult to believe that raising the height of a wall or any other kind of architectural fix would not have been a better option than restricting a right. The Mandela rules that we have gone over mandate 1 hour as a universally accepted human right. Did you consider how many other countries, if any, ignore this right just because prisoners are high risk or difficult to manage?

Enver ERDOGAN: We say we already provide, and in the court case we said we provide, open air and fulfil those rights under the Mandela rules. But the court, because of the mesh, had a different, wider interpretation of what is open air. Clearly, we do not necessarily think that is practical or necessarily accept that to its fullest extent; that is why we are here today. Ultimately, it is up to government to make the laws as we see fit. So with court decisions we believe are wrong, we come to this place and we change them. We did that earlier this year with the Bird case, if you remember. In this instance we do not agree with the court’s decision. We believe our longstanding practice provides access to open air, and therefore now we are legislating it.

Moira DEEMING: Did the government consider a staggered approach to fixing the architectural issues across the prison system? You could have legislated to give yourself time to fix the architectural issues rather than, again, extinguish this right permanently in this way.

Enver ERDOGAN: At a high level, what I can say is we did not make this decision lightly. The human rights charter is reserved, override is reserved. We did it in the Denyer case and in some other instances. Therefore I can say with my hand on my heart that I know the people that work in the department. They would have considered all options and would have looked at what is most practical. Aligning our legislation with New South Wales was seen as most practical in this instance. Again, New South Wales does not have a charter, so they do not have that concern.

Moira DEEMING: As I said in my speech, this is the second Mandela rule that this government has seen fit to ignore. Does the government have any other plans to reduce, restrict or abandon any other human rights for prisoners?

Enver ERDOGAN: I think all human rights need to be balanced. The fact that people find themselves in prison is because we are already limiting their freedoms because of their actions. We can talk human rights till early morning, but we know there are limitations. In these instances, for this cohort, it is appropriate that they are in these management units because of their behaviour. I do not want to pre-empt any future legislation. I hope we are not back here again. But we did it in the Denyer case, and I was proud to bring that bill before this chamber because I think it was the right thing to do.

Moira DEEMING: Could the minister reflect on the difference between the ordinary human rights and the expressly different human rights specifically for the prisoner population and why they have seen fit to override them?

Enver ERDOGAN: I do want to go back a step. There is an override of the human rights charter, and the exact section which is being overridden is listed. In the human rights charter we have the right to protection from retrospective criminal law, so that whole point about limitations in section 27 of the charter. In relation to out-of-cell hours, I will get some clarification on exactly the charter reference. But there is a charter override that is required. We believe that in the correctional setting the human rights considerations need to take into account the context in which it is occurring. Like I said, the limit on freedoms is one that is expressly a human right for all people, but by the fact that you are incarcerated, you lose those freedoms. Therefore in the circumstance it is needed here because of the cohort we are dealing with. But like I said, it is not a decision we made lightly. We would rather not be here, but the court found a certain way that we believe is not practical to implement.

Moira DEEMING: Just two more questions. The new section states that operational considerations include the three categories. Does the use of the word ‘include’ mean that the list is not exhaustive?

Enver ERDOGAN: Yes. That is right: it is non-exhaustive. It is not an exhaustive list, and the reason why is to ensure appropriate flexibility in how Corrections Victoria manages access to open air safely, 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, which require careful management of multiple interests. You can understand that for the state and for corrections, they have got multiple interests: the safety of those in custody, the safety of staff – there is WorkCover law, WorkSafe legislation and a whole bunch of laws on employer–employee relationships; and then there is obviously the safety of other prisoners and then safety to all the others that come onsite. They are carefully managing these multiple interests, and obviously above all there is that community safety, if those people were to be out of the community, and also the victims as well. It is a really complex system, to be frank, with different cohorts of risk, and therefore the reforms intend to address the exact scenario that arose in this particular case, the Marrogi case, and similar cases involving higher risk prisoners in high-security management units. That is what is intended, but the way the legislation is drafted is a cover-all.

David LIMBRICK: The government is explicitly acting through this bill to overturn the ruling of the Victorian Supreme Court’s interpretation of corrections legislation. Is the government, through this bill, indicating that the Victorian Supreme Court’s interpretation of the government’s obligations to protect persons from torture and cruel, inhumane treatment is wrong?

Enver ERDOGAN: I think the fact that we are here would say that we do not agree with the court’s decision. We do not believe it is practical, and it does not take into account the operational reality of the prison system. It has been a long-term practice, the way we manage this high-risk prisoner cohort in the high-security setting. That is why we are here. There have been times when courts have made decisions, and I gave the example of Bird earlier where we believe the court got it wrong, so we came to this chamber and we changed the laws.

David LIMBRICK: I thank the minister for that answer; that is clear. The statement of compatibility is silent on the United Nations Standard Minimum Rules for the Treatment of Prisoners, referred to as the Nelson Mandela Rules, which require at least 1 hour of open-air exercise daily, weather permitting. Organisations including the Human Rights Law Centre, Liberty Victoria and the Federation of Community Legal Centres have stated that the bill places Victoria in breach of those rules and obligations under the International Covenant on Civil and Political Rights (ICCPR) and OPCAT. Does the government accept that the bill is inconsistent with these international standards?

Enver ERDOGAN: We would say no, because our longstanding practice would show that we do provide open air. Our interpretation is obviously different to the court’s interpretation. We provide people with a courtyard, they get open air but there is a mesh to prevent a climbing risk. We say that is for the protection of the prisoner’s safety and the safety of others. So there are different interpretations, and our interpretation is that we believe the court got it wrong, and that is why we are here.

David LIMBRICK: I thank the minister for that answer; again, it is very clear. I think, if I am interpreting it correctly, you are saying that you believe that you do comply with those treaties and you disagree with what the court said. Okay. Fine. I will move on to my next question then. That is pretty clear.

The ratification of the ICCPR is achieved in Australia through what is called a dualist system. This means that our federal counterparts are responsible for entering into the external treaties, because state governments cannot do that, but where section 51 of the constitution limits federal power, the states are to ratify those obligations. Did the state government seek advice from the federal government when drafting this bill in relation to these matters?

Enver ERDOGAN: In short, no.

David LIMBRICK: The minister is being very straightforward with his answers today. I appreciate it. I cannot do better than that. The statement of compatibility concludes that the limitations on the open-air right are unable to be justified in accordance with section 7(2) and are therefore incompatible with subsection 10(b) and 22(1). It then invokes a permanent override under section 31, removing even the ordinary five-year sunset clause. Given that Parliament’s own intention is that overrides occur only in exceptional circumstances – and I note the minister brought up an exceptional circumstance, and I would agree with the minister that that was a very exceptional circumstance – as historically illustrated by threats to national security or state of emergency et cetera, how does an ongoing operational problem in high-security units arising from a single Supreme Court construction of existing statutory text meet the threshold that would satisfy that?

Enver ERDOGAN: I can say that I know the department and corrections looked at this very closely. If there were alternatives that could be developed that would mitigate this risk, I am sure the government would have explored them. But in the circumstances, because our real target – although it is a general change to the legislation – is this high-risk cohort, it was concluded that this was the only way possible into the longer term and that because they are such a high category of prisoners that we are talking about this override would be required and it would need to be permanent.

David LIMBRICK: You sort of pre-empted my next question. I am not sure of the reasons why, though, so I will follow it up. Why is a permanent non-reviewable exclusion required rather than one that is time limited and subject to parliamentary re-enactment later? The point I am getting to here is if we could make this time limited and it is an operational problem, that would give you time to solve the operational problem and therefore a sunset clause would be necessary, not a permanent override. So what is the justification for a permanent override?

Enver ERDOGAN: I think the corrections commissioner would say if it was purely an architectural issue alone you might say you could fix it, but it is beyond architectural, it is the difficult behaviour of the individuals we are talking about that would pose risk. You could try and do a fix, but there is a risk and return. Then you are increasing and passing the risk on to staff and others, so you would have to manage them into, let us say, a different area of the prison, because currently our view is that they do have access to open air – they have got a small courtyard. But the court said that because of the mesh on top and some of the settings they did not accept that.

David LIMBRICK: The statement of compatibility itself acknowledges that it does not completely mitigate the risk of arbitrary limits being imposed and that longer term limitations may raise particular concerns. Why did the government reject less restrictive alternatives, such as a statutory review clause, mandatory reporting to Parliament on the frequency and duration of denials, independent oversight of operational considerations or the fixed-term sunset clause that would have forced renewed scrutiny in a period in the future?

Enver ERDOGAN: We believe there is already robust scrutiny of our prison conditions. We have a number of bodies – IBAC, the Ombudsman – that have done reports. The independent prison visitors have done a report. Many of our First Nations partners and advocates have done reports. We know that there is a high level of scrutiny of what is happening, because we have an open, transparent system. This is one of the few bills that there was a public protest about because people were raising their concerns, so clearly they are aware. People are watching very closely the justice system. We have a lot of access into our prison system from people outside. We are proud of running a modern, humane prison system, but from time to time the level of settings needs to be adjusted to the level of risk. In this instance we believe that this is the only way to mitigate that risk for staff and others in the system.

David LIMBRICK: If this was the least restrictive option that was acceptable to the government, what other less restrictive but unacceptable options were considered, and why were they rejected?

Enver ERDOGAN: I do not have an exhaustive list of less restrictive options, but I can imagine, just from my practical experience in travelling and visiting all our prisons, that prison staff would have to move this high-risk cohort – which have records; you can look at the history of the individual in this court case – to another part of the prison so they could get access to open air. But obviously in doing that, operationally – people are crafty – it would increase risk to the staff, to be honest. A lot of the prisoners in these units have a past history of assaulting staff in particular and other prisoners, so the safety risk increases. We have an obligation as an employer to the safety of our staff – this is where competing interests and rights come into play – and minimising the risk of injury to our staff under WorkSafe legislation. In a practical sense, that comes to my mind in my experience of visiting our prisons. That would be the biggest risk: that the more you transport them around to different areas of the prison, the more staff are at risk. You increase the risk exponentially. Do we want to take that and expose our staff to even further risk? No.

David LIMBRICK: This is on the issue of compensation. Why wasn’t an alternate system, such as a cap, considered? I know that the government has done that type of thing before. In fact I supported it because I was not happy about removing all rights to compensation, but having some rights to compensation with a limit that would not send the state bankrupt was probably a good idea. Why wasn’t a cap considered?

Enver ERDOGAN: I think in the first instance the reason why we are here is because Corrections Victoria never believed we denied them access to open air. We believe that the set-up we have with the courtyard for this cohort is fair. We did not accept that they had been treated unfairly in the first place, although the court had a different finding. So because we do not believe the state has done anything wrong, we want to close off any potential to be liable.

David LIMBRICK: I think that is clear, and I understand it. What I am hearing is that it is not a matter of what the amount of compensation would be, the government believes that compensation should not be required in this case because the government believes that the court got it wrong. Is that correct?

Enver ERDOGAN: Yes, Mr Limbrick. We believe we met our obligation to provide access to open air.

Moira DEEMING: Can you please explain why the law has been changed to restrict these rights instead of just changing the definition of ‘open air’ to what our prisons are right now?

Enver ERDOGAN: We are now getting into really technical drafting questions. I might need to get some guidance.

Good question, Mrs Deeming. I understand that that was explored. It was about drafting. As with all drafting, there was an option to define ‘open air’, but the view was that would be more likely to be challenged. Our definitions of ‘open air’ were more likely to get challenged than these provisions that provide greater flexibility. Again, it was to mitigate the risk of an appeal.

Renee HEATH: Just further to what you answered, Minister, to Mr Limbrick’s question, you said you wanted to close off every avenue by which you would be liable. The way I read it is that is actually not correct, because you are trying to cut off avenues for financial liability, because you have not removed the –

Enver ERDOGAN: Yes, I was talking about financial liability.

Renee HEATH: Okay. If that is the case and you think that what you are doing is correct and is in line with what you believe would be compliant with the Mandela rules, why haven’t you removed the prevention of non-monetary relief?

Enver ERDOGAN: I am advised that going the additional step would have been significant in terms of removing the court’s full jurisdiction. They still have jurisdiction to comment and make the declaration of where they view the issue, but I think that would have been an additional step that we did not believe was necessary.

Sitting suspended 6:30 pm until 7:30 pm.

Renee HEATH: I did give notice of these questions, but I just said I want to put them on the record. I just want clarification. I asked earlier whether, in place of the financial compensation, any of these prisoners would be receiving emergency management days. The answer was no. I just want to confirm whether or not they will receive any compensation that would reduce time off their sentences.

Enver ERDOGAN: I can confirm, Dr Heath, the answer is no to that.

Renee HEATH: Why didn’t you use the opportunity when you were amending this bill to amend other areas in the bill that did not meet community expectations? For instance, the part where it allows high-risk and violent offenders to receive emergency management days, particularly when it takes them beyond their non-parole period, why was that not addressed?

Enver ERDOGAN: I understand, and I am sympathetic to your arguments here, Dr Heath. This was a targeted bill. It primarily added two matters. One was in relation to a court decision. That was the primary reason for this legislation. The other one was a maladministered instrument or a failure to issue an instrument that again would have meant direct community safety would have been impacted by false or defective notices issued due to the delegation of power. It is really addressing two direct issues. I think the issues you are talking about are broader policy matters for government. The minister in their wisdom has decided not to change the existing settings.

Katherine COPSEY: Minister, how can you say this is a targeted bill? The changes to the right to open air affect every correctional institution in Victoria. Is that correct?

Enver ERDOGAN: Yes, they do.

Katherine COPSEY: And they apply to every person who is imprisoned in those facilities. Is that correct?

Enver ERDOGAN: Yes, the legislation sets the minimum that applies. But obviously, as I said earlier today, many prisoners get a lot longer than 1 hour out of their cell.

Katherine COPSEY: So that is the Andrews–Allan–Carroll Labor government’s definition of ‘targeted’, is it?

Enver ERDOGAN: The reason for this legislation is the court decision. This will allow corrections to operate the way it has operated for 20 years in relation to out-of-cell hours in particular for this cohort, so therefore we view it as a continuation. There should be no practical change, but it is a legislative change.

Katherine COPSEY: So you are admitting that, according to the Supreme Court’s understanding of the rights guaranteed under our charter, the Victorian government has been in breach of that charter for the entire time that it has existed?

Enver ERDOGAN: The findings in this case were specific to this matter and to this prisoner’s placement, so I would not say it is across the board. But in terms of placement in this high-risk category, if you were to apply that to other prisoners in the same category, then you could come to that outcome. But we obviously do not agree with the decision of the court. That is why we are here today.

Katherine COPSEY: Minister, the statement of treaty compatibility states that:

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.

Minister, the new co-chairs of the First Peoples’ Assembly of Victoria were elected and in place in May 2026, and this bill was introduced into Parliament on 17 June 2026. Can you explain why it was not possible to consult with the newly elected or the previous co-chairs of the First Peoples’ Assembly of Victoria?

Enver ERDOGAN: I will get some advice from the minister’s office.

I have sought clarification from the department. My understanding was that the First Peoples’ Assembly was in caretaker, and then it took some time for them to be set up, as we know. At the moment they are still hiring some of their leadership team. I understand that. I understand that our department does still have, obviously, channels to the Aboriginal Justice Caucus and other stakeholders. It is fair to say – I do not want to verbal – that they were non-supportive or against this bill, I understand.

Katherine COPSEY: Can I clarify: was an attempt made to contact the First Peoples’ Assembly?

Enver ERDOGAN: I understand that once the decision was made to proceed with the bill a briefing was offered, and I understand that briefing offer was not taken up. I will just get clarification.

Sorry, Ms Copsey. I understand a summary was provided to their representatives and to the Aboriginal Justice Caucus – I guess a summary of the intention to make these changes. That is what I am informed.

Katherine COPSEY: You are confirming that there was not an attempt made to consult with the First Peoples’ Assembly?

Enver ERDOGAN: I would say a summary was provided of the action that was planned in relation to rectifying and addressing this court decision and the dilemma it left Corrections Victoria in. I guess people might have a different view. As I said earlier, the First Peoples’ Assembly was in caretaker mode, but representatives there were informed or advised of the intention to proceed with a proposal to address the court decision. The level of consultation, because I was not a part of that, is difficult to describe, but some may say that was consultation. We told them, ‘This is what we’re going to do to address the legislation,’ but I would totally understand on the other side that people might say it was not really the level of consultation expected.

Katherine COPSEY: Yes, that is very clear from Gellung Warl’s statement today. I feel really frustrated because I feel we have had this exact conversation previously. I have asked you why the government has not complied with its own treaty obligations in relation to several justice bills that we have considered in this place. How can you reconcile the continued failure of this government to comply with treaty processes with your stated commitment to treaty?

Enver ERDOGAN: Ms Copsey, I think the government would accept in part that the approach to this legislation has been incompatible with treaty. Clearly the intention was to address this court decision and the impact it had on open air in correctional facilities for this cohort, but I think the government would accept that its approach to this is partially incompatible with its treaty obligations.

Katherine COPSEY: Why does the government keep failing to meet its treaty obligations?

Enver ERDOGAN: I can only speak in relation to this bill, but I think that we would say that because the bill was confined to mitigating the impact of the court decision and our understanding of the existing operational practice, in this instance we felt that it was necessary to proceed, to be frank. That is why this course of action was taken, but we accept and need to be up-front that in the spirit of treaty it is partially incompatible.

Katherine COPSEY: Minister, I just do not understand how the statement you just made is factual. This legislation is not confined to addressing the circumstances of a single court case. This legislation changes the rights of people across Victoria’s entire corrections system. Would you like to clarify?

Enver ERDOGAN: We say we do not accept the interpretation that the court found about the access to open air. There are no plans to change practice. The existing practice with open air will continue. The legislation provides more flexibility to cover the situation that arose in that specific case, so this is about that specific case. But obviously the law has been drafted more broadly, and I explained that in my earlier answers I think to Mrs Deeming, who asked the question about why we did not just make a separate ruling about open air. It was because the advice was that this would provide the greatest flexibility and the greatest protection to corrections if these matters were to be appealed.

Katherine COPSEY: How is retrospectively legislating away liability for conduct that a court has already found unlawful consistent with the rule of law?

Enver ERDOGAN: I accept that as a legal principle retrospective law is not necessarily best practice. I do accept that, but there are always exceptions to that practice. This is one of those instances where we believe it is appropriate. It does not happen often, retrospective laws, but in this instance we believe it is proportionate to the level of risk and proportionate to corrections’ conduct, which we believe was always lawful and was the regular operating mode for corrections in relation to this cohort of prisoners.

Katherine COPSEY: If a private citizen engaged in conduct of this kind, the person harmed could pursue damages without any statutory ceiling. Why should the state, the most powerful entity in Victoria and one of the ones with the best ability to raise resources, face a lower ceiling of liability than any individual would?

Enver ERDOGAN: I cannot speak generally, but in this instance it is because we believe the decision was wrong. We believe we do provide open air that is reasonable in the circumstances of this cohort of prisoners. That was the understanding for 20 years. We clearly did not agree with the court’s decision. That is why we are coming here to fix the law, like we did in the Bird case earlier this year.

Katherine COPSEY: As set out in the Mandela rules, the requirement for 1 hour of access to open air per day reflects the minimum conditions considered necessary for humane detention. It is part of the general living conditions which shall apply to all prisoners without exception. Why is your government locking people up in inhumane conditions?

Enver ERDOGAN: I reject that premise. We say we comply with our open-air access. You will see that that was effectively our case in court: that we believed that our settings provided open-air access in the circumstances of the cohort of prisoners that was the subject of that case. Obviously the court disagreed, but our view is and we maintain that our actions are appropriate – that we do provide access. It is in a different circumstance because of the cohort of the prisoners and the risk they pose to others in the system. Therefore we say we comply, but this legislation needs to be updated to allow that flexibility because of that court decision.

Katherine COPSEY: Minister, I understand the state’s argument, but the fact remains that you have been found to have breached a person’s human rights, and that judgement stands. I understand that the state might be appealing parts of it. I will ask you again: you have been found at law to be detaining people in inhumane conditions – why are you persisting with it instead of fixing it?

Enver ERDOGAN: We would say we are fixing it. We clearly do not agree with the court decision. We say the court got it wrong. That is why we are here.

Katherine COPSEY: Deputy President, can I clarify: do the standing orders state that the minister needs to make factually correct statements during the committee stage?

The DEPUTY PRESIDENT: The minister does need to make factual statements, but I cannot judge the truth. If the minister believes he is telling the truth, that is it.

Katherine COPSEY: Minister, do you understand the difference between the argument that the state wants to continue making in court and the findings of the court?

Enver ERDOGAN: I am focused today really on the legislative correction that is needed to support the operation of the system. That is why we need to provide this flexibility to corrections to be able to provide open air as it sees fit for this cohort of prisoners based on their risk, and we believe that the courtyard approach for this is appropriate. If we did not think it was appropriate, we would not be here today. That is my view in relation to the court findings, and I am sure there will be a number of appeals. But the fact of the matter is we will be changing the laws today.

Katherine COPSEY: The retrospective provision in this bill extinguishes compensation for people whose right to open air has already been unlawfully denied. That is the finding of the court. That applies to people who have been held unsentenced on remand – people the state is holding before there has been any finding of guilt, and in some cases before charges that are later withdrawn. Minister, can you confirm that section 111AA applies equally to people who were never convicted of anything?

Enver ERDOGAN: I can confirm that it will apply to everyone in custody, including those in remand. I can confirm it does apply to people on remand equally, but our view is the practice should be the status quo.

Katherine COPSEY: I just want to understand: the minister is going to remove rights to compensation for people who have been held in inhumane conditions and who are later found not to have been convicted of any offence?

Enver ERDOGAN: We are updating the laws so that they reflect the practice in relation to people’s access to open air, and therefore, when the laws are updated, it will not be illegal, because the laws are updated to reflect the practical reality of the corrections setting. That is the democratic will of the people.

Katherine COPSEY: That was a doozy. Can you explain the principle, Minister, on which the state denies a remedy to someone it has detained, who it has unlawfully deprived of fresh air and then released without a conviction? What is the principle that underlies that?

Enver ERDOGAN: I think we are moving away from this subsection of the act. I think the act changes are about ensuring access to open air and our interpretation of what is access to open air, and therefore we do not view it as unlawful detention. The people that are in corrections are there as a result of sentences of courts. Courts have the powers to sentence people or to confine people to a custodial setting. This is not about changing whether someone goes into custody or not. This is about their access to open air whilst they are in custody. Our view is that the existing practice for some of this high-risk cohort, where they go to a courtyard, is appropriate, and therefore the law is being updated to reflect that practice that we believe is appropriate and common in other jurisdictions, like New South Wales.

Katherine COPSEY: Minister, if your appeal is unsuccessful, will you repeal this law?

Enver ERDOGAN: No.

Katherine COPSEY: Wow, that is just lowering the bar so low that you cannot even fall over it. Minister, in the statement of treaty compatibility the government has admitted that some aspects of the bill will limit rights and intent protected under treaty. How do you consider the limitation of rights in this case to be proportional?

Enver ERDOGAN: We believe it is proportional because the risk that this cohort has to other prisoners and staff is so great. If we were not able to change the legislation today to keep the status quo practice of the courtyards, then that means the operations in prison would need to be changed, where there would be far more risk of injury to other prisoners and to staff. We have had to balance those, so we believe it is proportional, because we do not believe there should be an increase in risk to staff. We want to keep the current arrangements in place, and this legislative change allows that.

Katherine COPSEY: Minister, I just do not understand how that is a correct statement about what the bill does, because you have already admitted during this committee stage that these changes do not just apply to the particular cohort that you keep alleging represents a threat, they apply to everybody across correctional settings. Do you want to revise that answer? Because I do not think it was correct.

Enver ERDOGAN: No. I have said the legislative change is to the whole act that applies to all prisoners, but the cohort that is affected from this court case is the one in the high-security management units in particular. The existing law says minimum 1 hour. You can look; we publicise our out-of-cell average hours. It is many more hours than 1 on average across our system. Therefore for many prisoners there will be no change to the status quo. The operations will not change, and this legislative change will allow us to continue our existing practice.

Katherine COPSEY: You have not answered how you think that that is proportional when it applies to everybody across the corrections setting. You talked about it affecting a particular cohort. That is not the function that the bill puts into law, it applies to everybody, so how is that proportional?

Enver ERDOGAN: The legislation only sets the bare minimums. Most prisoners – almost all prisoners – get a lot more than the minimum. That will not change, because those are operational matters decided at the departmental and correctional level. The legislation sets the bare minimums, and those prisoners are not affected by the bare minimum, because they do not get bare minimum out-of-cell hours.

Katherine COPSEY: The cultural review into the adult custodial system found that abuse and misconduct are rife in Victorian prisons, and it recommended a new corrections act that would enshrine additional legal protections for human rights. Where is the action on that recommendation, and why have you gone down this path instead?

Enver ERDOGAN: These reforms were really in response to a court case, and that is why they came about. I am a big fan of law reform, and I think the Corrections Act could assist with further modernisation. From when it was drafted in 1986 to now there have been a lot of changes. Society has changed. I think the community’s expectations, particularly on the prospects of rehabilitation for those that enter into custody and the causes of crime and causes of incarceration, have changed, and we do have a better understanding. I think that bigger law reform is out of the scope of today’s legislation, and I would prefer that we just stick to the specifics of the causes before us, if that is possible.

Katherine COPSEY: In the statement of treaty compatibility the former corrections minister noted that incarceration can have profound impacts on Aboriginal people’s physical and mental health and family and cultural connections and that that will be compounded by the limitations on the right to open air. Does the government accept responsibility for the physical and mental harm that will be inflicted on Aboriginal people through its passage of this bill?

Enver ERDOGAN: I think we all accept that Aboriginal people are over-represented – that is just factual – in our justice system. The underlying cause, Ms Copsey, as you would understand better than many others, is the disadvantage that Aboriginal Australians and Aboriginal Victorians find themselves in in our country because of the way our nation and state were constructed and what Aboriginal people faced in the way our state was formulated. They find themselves in an inherent position of disadvantage as a result. This law is not targeting any group of people in our corrections system, but it has a disproportionate effect on Aboriginal people because Aboriginal people are disproportionately in correctional settings full stop. They are in the settings already, so it does have a disproportionate impact on them for that reason. But this legislation is not targeted to Aboriginal people; it is targeted to this cohort in the higher risk group in corrections, and that is where our focus is at.

Katherine COPSEY: On a point of order, Deputy President, I do not understand how the minister can keep making the statement that this legislation is targeted at a particular cohort. It is inconsistent with what he has also said in this committee: that it affects everybody who is in our corrections system. I would ask you to ask him to withdraw it, because I do not think it is factual.

The DEPUTY PRESIDENT: The minister’s answer is the minister’s answer; I cannot direct the minister how to answer questions. It is up to the minister whether he wants to withdraw anything that he said or whether he stands by what he said. I am sorry, I cannot direct him to do what you are asking.

Katherine COPSEY: Minister, I am going to ask you again, because you keep making this statement, and I do not understand how you are mentally reconciling the two statements that you make.

Enver ERDOGAN: The legislative change is general in application, so it changes the legislation for everybody. But the application will only impact those in these settings, because the court decision is about this maximum-security setting with a courtyard. Most prisoners, almost all prisoners – a very small cohort excepted – are not in those settings, so they will not face the specific implementation. The implementation will mean that cohort will continue to get their open air but it will be in the courtyard. For everyone else – it will not impact them because they get to go outside. Operationally it does not impact the broader population, because they do not get the minimum 1 hour.

Katherine COPSEY: I appreciate you saying that on the committee record, and I hope that this is looked at, but I just do not understand how you can give assurances that a law is only going to be applied in a limited fashion when the law creates an ability for corrections officers to apply it in a much broader fashion. I just do not understand how you can assert that.

Enver ERDOGAN: That is a fair concern. I am not going to dismiss Ms Copsey’s statement there, and that is why the government does intend to accept an amendment from Ms Payne to have a review in three years time to see what is the practical effect. Our view at this point in bringing this legislation is that the practical implementation should be the status quo. But that is why we have accepted an amendment to do a review in three years time.

Katherine COPSEY: That is very nice, but it does not explain how you can keep making the assertion that you do. I invite you to reflect on that, and I would be really happy to hear an answer to that question at some point during the committee if it comes to you. I would like to understand: if the government’s intent was for this change only to apply to people in similar settings to the claimant in Marrogi, it would have been entirely available to the government to draft a more specific piece of legislation that only applied to particular maximum-security prison settings, would it not?

Enver ERDOGAN: I understand different drafting proposals were explored, but this provided the state or corrections with the greatest protection. And as I said, it brings us more into line with New South Wales drafting in that sense. We need operational flexibility to operate safely. But I do take your point. It was a point that Mrs Deeming also made, I will add.

Katherine COPSEY: So you agree that there could have been a narrowly drafted piece of legislation, and this is not it?

Enver ERDOGAN: I understand that in drafting the department acted off advice. Options were explored, but this was the one that provided the greatest cover in terms of making sure that corrections do not find themselves back in court with a similar type of claim to that decision earlier this year.

Katherine COPSEY: I will invite you then to stop claiming in this place, where our words matter, that this is a targeted piece of legislation, because that is just not accurate.

The statement of treaty compatibility recognises that:

… racism persists in the Victorian justice system, including the corrections system, and drives overrepresentation and poor treatment of Aboriginal people in prisons.

The statement also recognises that Aboriginal people will be particularly impacted by this bill because they are over-represented in prisons. Why, Minister, is your government introducing a bill that is perpetuating racism?

Enver ERDOGAN: What I do agree with is that racism is a real societal issue. Of course it plays out more sharply in the justice system, but it is a societal issue. It plays out in workplaces, in the sporting arena. It plays out everywhere, and clearly Aboriginal Victorians are greatly affected. The change is not targeted to them, but because Aboriginal people are over-represented in our justice system, they are more greatly impacted by these changes. That is right.

Katherine COPSEY: Do you understand that by continuing to implement regressive criminal laws that impact the rights and wellbeing of Aboriginal people, this perpetuates, and I would argue increases, the risk of another Aboriginal death in custody?

Enver ERDOGAN: We know, and I stated earlier, that this is about ensuring operational safety outcomes and managing the risk in particular of the cohort in relation to the court case that our goal is to focus on. Therefore it is necessary because there are competing rights, there are competing interests, so to speak, and we believe an operational approach that provides greater safety – the status quo, which provides a lot of safety and consideration for other prisoners and staff that work in these facilities – is important. Therefore the current arrangements should be able to be continued in a lawful way, and the only lawful way, we say, to continue the current operating system for this open-air access would be by changing the laws.

Katherine COPSEY: What safeguards are there for people in Victoria’s corrections settings that are outside of high-risk courtyards?

Enver Erdogan interjected.

Katherine COPSEY: What safeguards are there for people who are not in high-risk courtyards?

Enver ERDOGAN: In what setting?

Katherine COPSEY: You keep speaking about a particular cohort and a particular arrangement in corrections settings. What safeguards are there for people outside of that cohort and outside of those settings to ensure that this bill will not be applied to them?

Enver ERDOGAN: In the end prisoner placements are a decision that corrections takes very seriously. As I have stated, people in lower risk prisons, such as minimum-security prisons, get greater out-of-cell hours. In medium security you get fewer hours, and in maximum you get even fewer out-of-cell hours, and that is based on the risk of the prisoner not only hurting themselves but also hurting others in those facilities.

Ultimately, those arrangements will not change. Like I said, the practical impact is the existing law says ‘minimum 1 hour’ and they get many more hours than 1, which is a good thing. I think the more out-of-cell hours the better, because we know out-of-cell hours are good for rehabilitation, for their prospects of successfully reintegrating back into the community. In that sense the current legislation already sets a floor, and people are getting more out-of-cell hours than that floor. This legislative change will not change that for the other prisoners, let us say, in the general prison population.

Katherine COPSEY: The Victorian Aboriginal Legal Service is currently supporting a client who spent nine consecutive months in solitary confinement while he was on remand. He described his experience as if he was being mentally and physically tortured. Throughout this time he was repeatedly refused access to the outdoors. Is one of the aims of this bill to ensure that people like this client – who has, I would argue, experienced cruel, inhuman and degrading treatment and even torture – will not be able to access monetary compensation for the harm they have suffered?

Enver ERDOGAN: Ms Copsey, you would appreciate that the way the legislation is now being drafted, the right to open air still applies to all prisoners, with the exceptions. So the presumption is a right to open air, and unless those reasonable exceptions are met, then people should have access to open air. But in relation to a specific case, I do not want to comment because, as you stated, every circumstance is different, and it would not be right for me to comment on individual matters.

Katherine COPSEY: But, Minister, you earlier confirmed that it is no barrier to someone being denied compensation that they were in corrections settings on remand or later had their charges withdrawn without conviction.

Enver ERDOGAN: Could you just repeat that?

Katherine COPSEY: Earlier in the committee debate I think I heard you confirm that it is no barrier to someone being denied compensation that they were imprisoned on remand or that they were in custody and later had charges withdrawn without a conviction. Someone in those circumstances would still be denied compensation. It is the effect of this bill.

Enver ERDOGAN: Ms Copsey, yes. They would not get compensation for the open-air element. They might have another legislative reason or legal reason to get compensation, but for the restriction of open air, they would not have a legislative redress.

Katherine COPSEY: Minister, on 28 May last year in your capacity as the Minister for Corrections, you told this chamber – it was in response I think to a question without notice – in your own words that record keeping in corrections was a ‘gripe’ of yours, that you only received, in your capacity then, records of disruptions above 15 minutes and that you could not distinguish between a person who was locked down for 15 minutes and a person who was locked down for much longer. You spoke about the data and the need to digitise it, and this was one of your concerns on coming into the portfolio. Minister, was this problem fixed when you exited the portfolio?

Enver ERDOGAN: I can say now, as the Minister for Government Services, that digitisation is still a challenge. I have not heard anything to the contrary, but I still believe it is so in our corrections system and across our justice system. I understand that you would know the courts well. It is still a challenge. I think digitisation of record keeping and extraction of data are still an issue. A lot of it is still very manually heavy across government, and that is why, as Minister for Government Services, I am excited by my new role.

Katherine COPSEY: Minister, it is still not possible to distinguish between someone who has been locked down in prison for 15 minutes or for much longer. Is that your understanding?

Enver ERDOGAN: Obviously it has been a few months now, so I might just seek clarification if something has changed in that time.

Of course our general managers and the leadership of our prisons know what is happening in their prison system. The usual practice when I left the portfolio – and it is my understanding that this continues to be the case – is that these matters are recorded after 15 minutes, and that is the level of recording unless there is a bigger incident. Again, it may have changed from prison to prison since I left, but I do not have that kind of level of detail at hand.

Katherine COPSEY: Minister, how can you be asking Parliament to grant powers to corrections that on your own evidence the department has no reliable way to measure, monitor or report?

Enver ERDOGAN: Because general managers and prison officers know what is happening in their prisons. If there is something that is not right, there are applicable bodies to make complaints to. We have a modern corrections system with some of the best health care. We have Aboriginal wellbeing officers. We have a number of support networks that are already in place. There are other bodies to report to if there is a belief that somebody has not been treated fairly, and obviously where there is a clear breach, to the relevant agencies – the Ombudsman and IBAC – and directly to the department as well. I think there is quite considerable oversight of our system. It may not necessarily be the level of detail or specifics that are easily publishable, understanding it is a big network with over 15 prisons and thousands of people in it. Nonetheless it should be a focus. Across government services we need to digitalise going forward, and I think that is one key area where technology could assist us.

Katherine COPSEY: Minister, you just said that the people who will know what is happening here will be general managers of prisons. How will the department find out if people’s right to open air is being regularly denied?

Enver ERDOGAN: We need to be clear: people in prison still have rights. They can report it themselves as well. Calls to the appropriate bodies – prisoners can exercise those rights. In fact in some of our prisons we have introduced new technologies and ways of communication for prisoners. Especially during the pandemic, that was one of the opportunities we had with the Zoom calls that we implemented, which meant people had opportunities to raise their concerns.

Katherine COPSEY: On a point of order, Minister, I am not asking for a general rundown of prison programs. I want a specific answer, because I am concerned by the answers you are giving in this committee stage. How will the department know if people’s access to open air is being routinely denied?

Enver ERDOGAN: The way they know now. People are not being denied access to open air. The court decision was about the specific cohort that this prisoner found themselves in. We say that person did have access to open air, albeit in a courtyard structure that the court did not approve of that we believe is access to open air.

Renee Heath interjected.

Katherine COPSEY: I will take up Dr Heath’s suggestion. It is a good one. What is the current process for prison operational officers to monitor whether a prisoner is getting the minimum 1 hour of access to air per day?

Enver ERDOGAN: For the general population there are certain out-of-cell hours that operate. For example – I have not visited, but just in my practical experience – for many of the minimum-security prisons it might be, say, 8 am to 5 pm that people are out of their cells. That just applies to everyone, so they do not need to keep a detailed record for each individual. But people in management units, they do have a profile and make sure, because there are legislative requirements about checking on their wellbeing and so on. There are records on each person’s file, so to speak, in relation to if the legislative requirements about health checks. Out-of-cell hours or open space would be recorded on that individual’s file.

Katherine COPSEY: So this data does exist. Is it reported to the department?

Enver ERDOGAN: A lot of the systems are kept at the prison level, or corrections might have some of the data on individuals. But I believe for the general population it is just the hours that apply across the prison, because they are participating in employment programs and so on. In relation to where that data is kept, let me get clarification.

I will need to take that on notice because I do not have an answer for that one.

Katherine COPSEY: I appreciate that. I just want to ask one more time: how is the department and the minister of the day to know if people in correctional facilities in Victoria are routinely missing out on their minimum 1 hour access to open air per day?

Enver ERDOGAN: As I said, there are existing practices. If they are denied open space, I can tell you, prisoners have very strong support networks, so they can provide that information, report it to the appropriate agencies, and action will be taken. But I think prison general managers are a very competent group of people. Units keep records in their daily logbook of lockdown times, depending on the unit and depending on the prison. That is what management does. They set the program for each prison and each unit, and that is applied to the prisoners in that unit. Therefore there is a process at each prison that the general manager manages to ensure people have access. I guess if a prisoner did not have access to out-of-cell hours or open air, which we say they do, then they would be able to report it to the existing bodies, and many of them have access to legal services – the same legal services that wrote to you. They would raise it with those legal services and those supports.

Gaelle BROAD: I understand with that information at the moment the data needs to be FOIed to be accessed. Would you be able to make it publicly available so that there is a record of those that are not able to get that minimum 1 hour?

Enver ERDOGAN: We would not report on individuals in the corrections system, because it becomes more identifiable, especially when you are talking about the high-risk cohort. A lot of them are public figures, so to speak.

Gaelle BROAD: Would it be possible to record a percentage perhaps, so it is not individualised, to make that information publicly available?

Enver ERDOGAN: The challenge would be to collate it at each prison site where that has happened. There may be a reason, but there is a legislative requirement that they get open air. I think there might be the same sort of data collection challenge, because each prison is managed by effectively a general manager or what used to be called a governor.

Renee HEATH: What I am picking up from the room here is there seems to be a massive concern about this change, which is meant to be a very targeted change, which came into place because of one court case. It says in the charter of human rights compatibility statement that this is a very targeted change to deal with this one outcome from the Supreme Court judgement. But what we are hearing here is because of that change there is now going to be a blanket change that could possibly – well, this is what we are trying to get to – affect every single prisoner in the state of Victoria, and that is factually correct. What we are trying to get to here is: how do we know that an unintended consequence of this bill is not going to be that there are going to be breaches of the human rights of prisoners by depriving them of open air? What we are trying to ask is: how can you guarantee to us that that is not going to happen? Does that make it clear?

Enver ERDOGAN: The published data point is the out-of-cell hours, which are published annually, so you will be able to see if there is a trend of those declining and if that decline is due to this legislative change. But also, as I stated earlier, we will be accepting an amendment by Ms Payne, which will mean that after the commencement, no later than three years after, there will be a review of this new clause.

Katherine COPSEY: Minister, it is good to hear that there is one open public data point that we can access. I am disturbed, though, by your suggestion that if the state is to assure itself that people’s access to open-air rights are being met, it falls to individuals to make complaints rather than there being a proactive approach by the state to ensure that occurs. To take a really live example in our prisons, how are people supposed to make a complaint if they are experiencing prolonged lockdown in a correctional facility where they do not have access to a telephone and cannot raise the complaint with their lawyer? How are they supposed to do that?

Enver ERDOGAN: Exactly the way that it happens now – the same way. They do have access, because prisoners have a right to access health care, wellbeing checks et cetera, so there are many avenues for them to raise issues, and those checks and balances are in place depending on the cohort of prisoner. We do have oversight bodies that look at corrections and its operations, from WorkSafe to the Victorian Auditor-General’s Office (VAGO) to the Ombudsman to IBAC. They do periodically look at the corrections system and write reports on the corrections system. We have independent prison visitors that visit most of our prisons, and they give a full and frank – I have met with the beautiful volunteers – assessment of what they have observed. They hear comments, sometimes positive, but a lot of complaints and concerns of prisoners, and they feed that back to the department. So there is an existing kind of ecosystem, if you like, of people that operate in our correctional system for Aboriginal prisoners, because I know you have expressed concern. We have Aboriginal wellbeing officers in prisons that would raise those concerns. To take this view of prison staff being anti and being people who would mistreat prisoners, I do not accept that premise at all, to be honest. I think that is the way it sounds, and I do not accept it. A lot of prison officers care about the people in custody and do their job lawfully, just like a lot of police officers. I know you might not accept that either. They do. They take their duty seriously. If there is a legislative requirement, prison officers have a legal duty but also an ethical duty to treat prisoners within the law, which they overwhelmingly do.

Katherine COPSEY: No, I am not reflecting on the conduct of corrections officers.

Enver ERDOGAN: Yes, you are.

Katherine COPSEY: No, I am not. I am – do not argue with me.

Enver ERDOGAN: You are.

The DEPUTY PRESIDENT: If we can just draw it back to asking questions.

Katherine COPSEY: I am not going to let you put words in my mouth, Mr Erdogan. I am reflecting on what you have told this chamber tonight, and I am reflecting on a concern that I am hearing from stakeholders across the board that there is routine failure of people in correctional settings in Victoria to get access to open air at present. What you have told this chamber tonight is that the way that people are supposed to guarantee that right is not on the state. You told us that the way that people are to secure that right –

Enver Erdogan interjected.

Katherine COPSEY: and the way that the minister would know and the department would know, you said, was that people would make complaints. I am concerned from your comments that there is not a proactive monitoring stat that is available to the minister and the department. If I am wrong about that, please correct me, because that is the impression I have gotten from your answers so far.

Enver ERDOGAN: There is a legislative duty on employees to follow the law, and they do that overwhelmingly well. We will always back our prison officers.

Katherine COPSEY: Once again I am not talking about the conduct of prison officers. I am talking about how the department or the minister will know if there is routine failure to meet this target.

Enver ERDOGAN: General managers and prison staff take their obligations seriously, and they overwhelmingly comply with the legislative requirements. When there is a failure, it is usually reported by prison officers themselves or management at those prisons to the corrections commissioner and to the department. Usually it is self-reported when something goes wrong. But if that system does not and the quality assurance processes there do not pick it up, there are outside bodies. I have named a number of them, a large number, from WorkSafe to VAGO to the Ombudsman to IBAC to the Aboriginal wellbeing officers we have in place. We have visitors, we have legal practices that come into our prisons, including independent prison visitors, but to the utmost I have trust in our prison officers. They overwhelmingly do an amazing job.

Katherine COPSEY: If the record keeping was inadequate for monitoring existing lockdowns a year ago, and this bill now adds a further ground to deny people time in the open air, do you accept that the exercise of this new power will be effectively invisible?

Enver ERDOGAN: No.

Katherine COPSEY: That is good. How will it be visible?

Enver ERDOGAN: I just outlined the existing mechanisms.

Katherine COPSEY: So it is going to be on individual people in prison and their representatives to report if this power that is being granted results in additional people being denied access to open air for an hour a day.

Enver ERDOGAN: This is asked and answered. As I have said, prison officers overwhelmingly take their job and duties seriously. They comply with the law. If they were not complying with the laws, there would be a report from within prison usually in the first instance, but if there were not, it would be picked up by all these other agencies. I feel like I am repeating myself now.

Katherine COPSEY: I would like to understand if you and the government are interested in how frequently the powers under this bill are going to be exercised. Would you undertake to publish on a regular basis how often operational considerations are relied on when people are denied access to open air?

Enver ERDOGAN: I believe there are a range of existing publicised reports, and so we are not committing to any further reporting.

Katherine COPSEY: Minister, could you please tell me what those reports are?

Enver ERDOGAN: It is a good question. I like that. I understand there is a budget paper – BP3 – that reports, for example, on out-of-cell hours. But there are internal systems. I know you would appreciate the public service have their own quality assurance processes for reporting on the operations of prisons on a whole set of criteria. A lot of it is internal. There are obviously outside agencies that they report to also, but the most public facing one I can refer to is probably the budget papers.

Katherine COPSEY: Would I be right to assume that that out-of-cell-hours reporting is aggregated across the entire correctional system, or do you have data that is available at the individual facility level?

Enver ERDOGAN: I think that the data that is published in the budget papers is across the system.

Katherine COPSEY: All right. I understand that you have shared with the chamber that the government will be supporting Ms Payne’s amendment for a statutory review. Minister, that review will only be as good as the data it can draw on to see how this is working in practice. You have confirmed to the chamber tonight that the information on the prolonged use of lockdowns, the data that is coming through to corrections, has not been fixed in the way that you hoped it would be when you were the minister, and you have now told the chamber that publicly we can only see out-of-cell hours at the general level of the entire corrections system. To make this review functional and worthwhile, Minister, would you undertake to publish the frequency, the duration and who has been affected by the powers granted in this bill to deny people open air, and will you collect those and make them public from the day that these provisions commence?

Enver ERDOGAN: We cannot do that, because I think that would be a very big operational burden on corrections staff to undertake. They already have a range of responsibilities, and I think to commit to that tonight without the broader resource implication and practicality would be reckless.

Katherine COPSEY: Minister, though, you did earlier in the committee stage say that corrections officers are keeping data around people who are in prison and their access to out-of-cell hours. So the data exists, doesn’t it, but you will not make it public?

Enver ERDOGAN: I think there are a whole range of data. Some of it is protected because of privacy in relation to prisoners. Some is more challenging to collate and to properly process, because it is a complex system. People come in and out, they move. It is a big administrative challenge.

Katherine COPSEY: How will we know if this bill that is being debated tonight results in an increase in people losing access to open-air rights?

Enver ERDOGAN: I think we have been clear that that is not the intention. But more importantly, I think in the broader out-of-cell data you would see a long-term trend in that data in the public-facing angle. But more importantly, I think that is not the case. We believe this is just continuing the existing practice, and in particular in response to that case that this legislation was drafted from.

The DEPUTY PRESIDENT: Ms Copsey, I invite you to move your amendment 1, which is a test for all your remaining amendments.

Katherine COPSEY: I move:

1.   Clause 1, line 5, after “considerations” insert “and to further provide for persons detained in police gaols”.

The function of these amendments I did speak to during my second-reading contribution, but just to be brief, this relates to the decanting issue. We have spent a lot of time talking about the substance of the bill, but another existing problem is the continued over-reliance on police cells in Victoria to house people outside of the actual corrections system. What my amendments do is place a legislated upper limit of 14 days on the length of time a person can be held in a police jail. They also provide that in calculating that 14-day maximum time, any time that a person has previously served in a police jail is counted towards that 14-day total. The intent of these is to stop the decanting process whereby the clock is reset when someone is moved around between police jails. This is not a good process. This is not a good reality that anyone is experiencing at the moment. The conditions within police jail are not suitable for longer term detention. There are people going missing within this system at the moment. Legal representatives and family members are not aware of where people are being incarcerated. The conditions in police jails are not suitable to meet people’s human rights, and they are losing access to legal support, medical appointments – there is difficulty even getting people a change of clothes or a change of underwear while they are located in these cells. So they are not a humane way for people to be held in Victoria. They are also a huge drain and burden on police resources. This is not a burden that should be borne through the police jail setting. My understanding is that it is taking police and diverting resources to transporting people across the state, sometimes hundreds of kilometres, which is not a good use of anyone’s time and is inhumane. The effect of these amendments will be to limit that practice, and I commend them to the chamber.

Enver ERDOGAN: I want to thank Ms Copsey. I stated earlier that the government normally would not accept out-of-scope amendments, but in the interests of this legislation the government will not be opposing this amendment. If I could – not to verbal you, but to take out of those comments – I think it is a fair reflection that custodial settings are definitely preferable for people in these circumstances than a jail cell. Obviously corrections is set up to accommodate people when they find themselves on the alleged wrong side of the law, because we are talking about people that are not yet convicted. On that point the government will not be opposing this amendment.

David LIMBRICK: The Libertarian Party will also be supporting Ms Copsey’s amendment. I think that the timeline here is reasonable – two weeks, 14 days. Police stations are not meant to be long-term holding facilities, they are meant to be short term. The issues at the moment with decanting and this sort of thing are a symptom of a bigger problem. My main issue with Ms Copsey’s amendment is I am not convinced that the government would actually be able to implement it in time. Therefore I will also be supporting the government’s amendment, which pushes the date back to September 2028. It pushes it out for two years. I do not want the current situation to go on any longer than is possible. But at the same time I do acknowledge that it will take a fair amount of work to fix this issue, and it seems appropriate that we would need time to do that.

That said, I urge the government to move quickly on this. Two years can go pretty quickly, and if you need new facilities or something, they take a lot of time to build. I do not want to be in a situation where we are forced to let people out or something. It makes sense to keep them in the police station jail for as short a period as possible, but it is not possible to keep them out of there and put them into a remand centre because of the current system. I do think that it requires a bit of time to implement this. That said, I think that two weeks is a reasonable timeframe. In fact it is probably too long. I would hope that most prisoners would stay there for far shorter periods than that. Two weeks should be the maximum, as Ms Copsey has outlined. I think that this is a good amendment. It improves an otherwise awful bill, in my opinion, but it is a small improvement that I hope will result in better prisoner management.

Renee HEATH: The Liberals and the Nationals will also be supporting this amendment. I also want to point out that, yes, I think two weeks is still a very long time to be held in a situation like that. But like the minister said before, we are legislating a minimum standard, so we still hope that people will be in there for much less time and then put into more appropriate environments. Yes, we will be supporting that. We will also, the same as Mr Limbrick, be supporting the government’s amendment to the Greens amendment to allow time for the right staffing and the right conditions to be put in place to be able to achieve it.

Katherine COPSEY: To clarify the intent of the amendment based on just a couple of the contributions then, this will put in place a maximum 14-day period. However, it does not alter where in the order establishing a prison jail there is a lower maximum time for that jail. That should remain in place. That is how the amendment will function.

Amendment agreed to.

Rachel PAYNE: I move:

1.   Clause 1, line 5, after “considerations” insert “, to provide for a review of the operation of certain amendments to that Act”.

Just to add to that, I want to thank everyone for their engagement on this – for a statutory review to be conducted no later than three years after the day of royal assent of this bill. Considering that there are so many stakeholders raising concerns around breaches of human rights, around the issue of the breach of the charter of human rights and also around issues that have been raised by the First Peoples’ Assembly, I think a review is warranted. I appreciate both the government and the opposition supporting this.

Enver ERDOGAN: I want to thank Ms Payne for her engagement with the government in relation to this legislation. I think it is clear from discussions across the chamber on all sides that there is need for a review to see how the practice is operating, and I think this is a sensible improvement to the legislation.

David LIMBRICK: The Libertarian Party will be supporting this statutory review. I think the date is appropriate. Assuming that the government’s house amendment passes, that will be two years in the future and this will be one year after that, so I think the timing of it is probably appropriate. It means it will have been operational for approximately a year, and that probably gives us enough data to see how things are working and have a look at it. If something is not working well, hopefully we can fix it quickly. I think that that is a good idea.

Renee HEATH: The Liberals and the Nationals will also be supporting this amendment for the statutory review. I think that, if anything, the last hour has really proved the incredible need for it. I am very happy, because it does amaze me that we can override a human right; it is, quite frankly, a concern. When we do that, I think we have got to hold the bar a lot higher, so I think that this is a very sensible idea, and we are happy to support it.

Katherine COPSEY: The Greens will be very happy to support Ms Payne’s amendment for a statutory review. I note that we were just having a short discussion, and the statutory review is, at the latest, after three years. I would hope that if it is apparent that as a result of this bill we are seeing a deterioration of people’s rights in custody, that intervention could be made earlier. The Greens are deeply concerned and share the concerns of stakeholders not only that the current circumstances in corrections settings in Victoria create the risk of imminent deaths in custody, but also that this bill the chamber is debating tonight will exacerbate that risk. I would certainly hope that should we see deterioration we could see this review earlier, but I think it is nonetheless an excellent idea in response to a really far-reaching change that is being made to people’s rights this evening.

The DEPUTY PRESIDENT: The question is that Ms Payne’s amendment, which tests her amendments 6 and 7, be agreed to.

Amendment agreed to; amended clause agreed to.

Clause 2 (20:55)

The DEPUTY PRESIDENT: I invite Mr Erdogan to move his amendments 1 and 2, which also test his amendment 3.

Enver ERDOGAN: I move:

1.   Clause 2, page 2, line 1, after “of this Act” insert “, other than sections 5AAA, 5AAB and 5AAC,”.

2.   Clause 2, page 2, after line 3 insert –

“(3) Sections 5AAA, 5AAB and 5AAC come into operation on 8 September 2027.”.

I think Mr Limbrick already spoke to my amendment. This is just giving time, in light of the amended legislation, to be able to implement the changes to the police custody arrangements and the new maximum, and therefore this is just a practical change to give two years time. For any operational changes of this magnitude you do need time for them to filter through from police practice to corrections practice and to build in that capacity and capability. This will give us that time to get it right.

Katherine COPSEY: I do have a question actually for the minister, as this was circulated as we came into committee. Minister, I heard outside this chamber that the government was proposing a 12-month delay to the commencement of this provision. However, you keep referring to two years. Can you please explain to the chamber – I am sorry if I am muddying the waters here – what this amendment does in terms of the commencement of the bill and the delay that it effects?

Enver ERDOGAN: I will get clarification on that for you.

I just want to confirm it is one year for implementation into operation. My amendment to section 3 is about a repeal of that section of the act. Yes, it is within two years, but within one year it is going to be operationalised.

Katherine COPSEY: Thank you very much, Minister, for clarifying that. It is hard sometimes to make sense of an amendment sheet in isolation. The Greens will not be supporting this amendment. I was very open to having discussions with the government about the commencement date for the amendment that I have moved this evening. We unfortunately were not able to receive a response from the government to some of the proposals that we put forward, and the government has not had the opportunity to explain the precise operational barriers that prevent this change coming into effect before 12 months have elapsed. Just on that basis, we do not support this, although I acknowledge there could be some operational requirements that need to be met in order for it to come into effect.

As I said, I remain very concerned, and stakeholders that have been contacting me remain very concerned, about continuing deaths in Victorian custody. We have seen, very sadly, recent examples of that, and the Victorian Aboriginal Legal Service have very publicly said that they are very worried about the risks that decanting raises to continuing deaths in custody. If the current situation persists for another year, I do not think that is actually an acceptable period of time for that risk to continue. I would have liked to speak to the government about a sooner commencement date. However, should the amendment come into law, I am very pleased that we will be making progress on this, but the Greens would have preferred to see it happen sooner.

David LIMBRICK: As indicated earlier, the Libertarian Party will be supporting this amendment. I share Ms Copsey’s concerns about the current operation of the system. However, I do also appreciate that operationally this seems like a large project. I am not an expert in these things, but it seems like it is a large project that will require a lot of coordination and work, and therefore it is reasonable to allow some time to do that and not rush it. The last thing that we want to do is rush any of these changes. Mistakes happen, and when you rush things it can make things worse. I do not want to see undesirable outcomes from rushing things, so I am comfortable with delaying the implementation date.

Renee HEATH: The Liberals and the Nationals will be supporting this. We also would love to see an earlier implementation date. But we also know that, with the shortage in the police force and these sorts of issues that are facing Victorians at the moment, it quite frankly probably would not be achievable on an operational level. We will be supporting this amendment.

Amendments agreed to; amended clause agreed to; clause 3 agreed to.

Clause 4 (21:02)

Rachel PAYNE: I move:

2.   Clause 4, after line 28 insert –

“(1A) In determining whether a prisoner is to be denied access to the open air, regard must be had to –

(a)   any medical, psychiatric or psychological condition of the prisoner that may be adversely affected by the denial of access to the open air; and

(b)   in the case of a prisoner who is an Aboriginal person, any issues that arise due to the person’s Aboriginality.”.

I did speak to this in my second-reading speech, but essentially it is in relation to considerations for determining access. There are two parts to this. Proposed subsection (1A) provides that, in determining whether a prisoner is denied access to the open air, regard must be appropriate to, per paragraph (a), any medical, psychiatric or psychological condition of the prisoner that may be adversely affected by the denial of access to the open air.

Under the Victorian Charter of Human Rights and Responsibilities Act 2006 prisoners retain human rights, including section 10, protection from cruel, inhumane or degrading treatment, and section 22, the right of a person deprived of liberty to be treated humanely and with dignity. This is identified by the Victorian Equal Opportunity and Human Rights Commission. They recognise that these protections continue to apply in prisons, notwithstanding that some restrictions on rights are necessarily associated with imprisonment.

David LIMBRICK: If this amendment had been talking just about medical, psychiatric or psychological conditions of prisoners, I would have supported it. Unfortunately, it has a second paragraph where it talks about Aboriginality. This type of race politics is sort of getting out of fashion and pretty soon will be considered very old-fashioned in Victoria. Victorians are sick of it. It is a breach of the principle of equality under law. I am not going to support anything that entrenches race in the Victorian statutes, so I will be opposing this.

Rachel PAYNE: Please forgive me. I have realised that I did not speak to new subsection (1A)(b) in this amendment – thank you, Mr Limbrick, for highlighting that to me – which is in regard to the case that a prisoner is an Aboriginal person and issues arise due to the person’s Aboriginality. This amendment is consistent with the approach already recognised in section 3A of the Bail Act 1977. That is why it has been equated with this bill. That provision expressly requires decision-makers to consider, in the case of an Aboriginal person, any issues that arise due to the person’s Aboriginality. I will point to the fact that Aboriginal people who may find themselves incarcerated may have particular cultural, family, community and connection-to-country considerations that are relevant to their wellbeing and to the impact that decisions made in custody can have on them.

Renee HEATH: The Liberals and the Nationals will not be supporting this one. We have been quite collegiate up until this point, but this one we are not supporting.

Enver ERDOGAN: The government will also not be supporting this amendment.

Katherine COPSEY: The Greens will be supporting this amendment, and I thank Ms Payne for bringing it. We have already canvassed really extensively, but the bill’s own statement of treaty compatibility refers to the fact that people of an Aboriginal background are more at risk in correctional settings. It is entirely appropriate that in order to try and reduce the inequality of outcomes we take factors such as that into consideration. It is very important, given the devastating impacts that the provisions granted by this bill can have on the welfare of individuals who are within Victoria’s justice system, that factors such as the mental wellbeing and mental health risks of the denial of open air be taken into account. I thank Ms Payne for bringing these amendments, and the Greens will be supporting them.

Council divided on amendment:

Clause 5 (21:14)

Rachel PAYNE: I move:

3.   Clause 5, line 11, omit “No amount is” and insert “The total maximum cumulative amount”.

4.   Clause 5, line 19, omit “47(1)(a).” and insert “47(1)(a) –”.

5.   Clause 5, after line 19 insert –

“must not exceed $1 000 000.”.

Essentially this amendment impacts the total maximum liability – it sets a maximum cap of $1 million. The bill retrospectively removes the government’s liability for violating the rights of prisoners, even though the Supreme Court’s decision is subject to an ongoing appeal. Removing payment liability also breaches the International Covenant on Civil and Political Rights, which Australia is a signatory to. I think it also should be noted that there have to be consequences to corrections decisions on what are considered operational considerations, and having a cap on the maximum liability I feel is appropriate.

Katherine COPSEY: The Greens will be supporting this amendment.

David LIMBRICK: I feel a little bit of deja vu here because we had a similar conundrum before when we had to face the possibility of people that had been wronged by the state having no compensation or people that had been wronged by the state having infinite compensation. We had to make a compromise of a cap, which would result in people that were wronged being able to get some sort of compensation – but cap it here. So I think that what we are doing here is actually a reasonable compromise that allows actions to be taken. When the state does something wrong, it allows someone to sue the state, but it also ensures that taxpayer resources are not bled dry in the process. I think that this is a reasonable amendment, and for consistency I will be supporting it.

Renee HEATH: The Liberals and the Nationals will not be supporting this amendment.

Enver ERDOGAN: The government will not be supporting this amendment.

Council divided on amendments:

New clauses 5AAA, 5AAB and 5AAC (21:19)

Katherine COPSEY: I move:

2.   Insert the following new Clauses to follow clause 5 –

‘5AAA Police gaols

In section 11(3) of the Corrections Act 1986 –

(a)   for “The” substitute “Other than in circumstances of extraordinary emergency, the”;

(b)   for “(if any)” substitute “(not exceeding 14 days)”.

5AAB General power to authorise transfers of detained persons

After section 104DF(2) of the Corrections Act 1986 insert –

“(3)   In determining the maximum period for which a person transferred from a police gaol to another police gaol under this section may be held in the police gaol, any period that the person was held in a police gaol prior to the transfer must be included.

Note

See also section 11.

5AAC New section 133 inserted

At the end of Part 11 of the Corrections Act 1986 insert –

“133   Transitional – Corrections Amendment Act 2026

Section 104DF(3) applies, on and after its commencement, in relation to a detained person whether they became a detained person before, on or after that commencement.”.’.

Renee HEATH: The Liberals and the Nationals will be supporting this.

New clauses agreed to.

New clause 5AA (21:20)

Rachel PAYNE: I move:

6.   Insert the following New Clause to follow clause 5 –

‘5AA New section 111AB inserted

After section 111A of the Corrections Act 1986 insert –

“111AB   Review of certain amendments

(1)   The Minister must cause a review to be conducted of the operation of the amendments made to this Act by the Corrections Amendment Act 2026 (other than section 5A of that Act).

(2)   The review must be commenced no later than 3 years after the day after the day on which the Corrections Amendment Act 2026 receives the Royal Assent.

(3)   The review must be completed no later than 6 months after it commences.

(4)   The Minister must cause a report of the review to be laid before each House of the Parliament no later than 14 sitting days after receiving it.”.’.

Just briefly, I want to thank the Federation of Community Legal Centres and Victorian Aboriginal legal centres for their engagement on this bill.

New clause agreed to.

Clause 6 (21:21)

Enver ERDOGAN: I move:

3.   Clause 6, lines 12 and 13, omit “the first anniversary of the day on which it receives the Royal Assent” and insert “8 September 2028”.

Amendment agreed to; amended clause agreed to.

Long title (21:22)

Katherine COPSEY: I move:

3.   Long title, after “considerations” insert “and to further provide for persons detained in police gaols”.

Amendment agreed to.

Rachel PAYNE: I move:

7.   Long title, after “considerations” insert “, to provide for a review of the operation of certain amendments to that Act”.

Amendment agreed to; amended long title agreed to.

Reported to house with amendments, including amended long title.

 Enver ERDOGAN (Northern Metropolitan – Minister for Finance, Minister for Casino, Gaming and Liquor Regulation, Minister for Government Services) (21:23): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

 Enver ERDOGAN (Northern Metropolitan – Minister for Finance, Minister for Casino, Gaming and Liquor Regulation, Minister for Government Services) (21:23): I move:

That the bill be now read a third time and do pass.

Council divided on motion:

The PRESIDENT: Pursuant to standing order 14.28, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill with amendments.