Prisoners in Victoria will no longer be guaranteed daily access to fresh air after legislation allowing prisons to deny outdoor access due to "operational considerations" passed the state's lower house, despite the Victorian Government acknowledging parts of the bill are "incompatible" with the state's Human Rights Charter.
The legislation has drawn sharp criticism from the Victorian Aboriginal Legal Service (VALS), which said it demonstrates both the government and opposition have a "fundamental inability to care about risk to Aboriginal lives".
In a statement of treaty compatibility, the government further acknowledged that, because of the recent implementation of Victoria's Treaty Act, "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".
VALS chief executive Nerita Waight said the "unconscionable" legislation should be scrapped by Premier Ben Carroll.
"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," she 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."
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.
The amendments limit that in circumstances where it is "not reasonably practicable to provide the entitlement", including because of prison management requirements and the rights and safety of the prisoner or other prisoners.
Youth Justice and Corrections Minister Paul Hamer 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.
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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".
Mr Hamer also 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."
Ms Waight said the legislation would not improve prisoner safety.
"Instead, it will undoubtedly cause even more compounding trauma on the lives of Aboriginal people," she said.
"This state so desperately needs to address its systemic issues of over-policing, racial discrimination, Aboriginal deaths in custody and the shamefully high levels of incarceration our people face.
"Until they are willing to authentically engage with and work with Gellung Warl, through Treaty, more Aboriginal lives will continue to be harmed by their policies."
