Victorian Traditional Owners say legislation that means prisoners are no longer guaranteed daily access to fresh air is "inconsistent with the spirit and intent of Statewide Treaty".

Last month, the changes to the laws allowing prisons to deny outdoor access due to "operational considerations" passed Victoria's lower house, despite criticism from the state's peak Indigenous legal body. They also contravene recommendations from the Yoorrook Justice Commission.

Under the current law, prisoners in Victoria who are not ordinarily engaged in outdoor work are entitled to spend at least one hour each day in the open air, weather permitting.

In response to a Supreme Court ruling, the amendments limit that entitlement in circumstances where it is "not reasonably practicable to provide the entitlement", including due to prison management requirements and the rights and safety of the prisoner or other inmates.

In response, the First Peoples' Assembly — the elected body representing Victoria Traditional Owners — submitted, as part of the new powers under the Statewide Treaty Act, that the "vague excuse of 'operational considerations' should not be relied upon to erode the basic rights and conditions of all people in prison".

"The Assembly shares the concerns raised by First Peoples Community experts, including those with lived experience," they submitted. "This Bill will have a disproportionate impact on First Peoples who continue to be significantly overrepresented in Victoria's correctional system."

The Assembly noted many First Peoples across the state are currently held on remand and argued they are "vulnerable to systemic neglect and solitary confinement".

"This Bill seeks to deny a critical lifeline for First Peoples' wellbeing and prevents rehabilitation. It will compound the harms experienced by all people in prison," they submitted.

Assembly Co-Chair Djaran Murray-Jackson said the legislation is "not in the spirit of Treaty, nor is it compatible" with the Treaty Act.

"Our submission calls on the State to listen to First Peoples and withdraw the Bill immediately," he said.

Last month, National Indigenous Times reported the legislation had drawn sharp criticism from the Victorian Aboriginal Legal Service (VALS), which said it demonstrated both the government and opposition had a "fundamental inability to care about risk to Aboriginal lives".

"We know from our clients' experiences that Corrections already use and abuse this excuse of 'operational considerations' to limit the rights of people in their care," VALS CEO Nerita Waight said. "This Bill gives them a license to withhold access to the most basic of rights, stripping away the wellbeing and dignity of people in prison."

Because of the recent implementation of Victoria's Treaty Act, the government stated that "it was not possible" to give the Assembly the "opportunity to advise on the Bill or for them to otherwise make representations about the effect of the Bill on First Peoples".

Youth Justice and Corrections Minister Paul Hamer told Parliament that while the bill does not contain provisions that apply specifically to First Peoples, "the practical effect of the Bill may be to undermine inherent rights, unacceptable disadvantage inflicted, human rights and fundamental freedoms of First Peoples, given Aboriginal people are significantly overrepresented in the prison population".

"Aboriginal people are also marginally overrepresented in the number of people in prison who are separated, where the provisions in the Bill are more likely to be relied upon, given the operational challenges of providing these individuals with access to open air," he said in a statement of treaty compatibility.

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

Furthermore, the government acknowledged the legislation is, in part, "incompatible with human rights as set out" in the Human Rights Charter. Those rights include protection from cruel, inhuman or degrading treatment and the right to humane treatment when deprived of liberty.

It is the second time in less than a year the Victorian Government has acknowledged legislation does not fully comply with the charter. In December, Labor's "adult crime for violent crime" laws prompted Attorney-General Sonya Kilkenny to admit they "constitute significant limits on the fundamental rights of children who are by their nature a vulnerable cohort".

In response, the Assembly argued the acknowledgement is "significant" as it "recognises that the Parliament is being asked to enact a law that is inconsistent with the commitments of Statewide Treaty".

"It undermines the renewed relationship between First Peoples and the State agreed to under Statewide Treaty," they submitted.