Source : the age
Wrongfully imprisoned academic Kylie Moore-Gilbert, the ombudsman and a chorus of human rights advocates have voiced serious unease about the Carroll government’s plan to curtail the right of Victorian prisoners to access fresh air daily.
Labor is poised to pass legislation with opposition support in the upper house this week to make the right to open air for at least an hour each day “subject to operational considerations” in prisons, despite conceding this breaches Victoria’s human rights charter.
The Victorian Ombudsman wrote to the leaders of both major parties this month to express concern about the bill, which opponents say does not adhere to the international minimum standards for prisoners, a set of rules named after Nelson Mandela.
The government argues the change is necessary to prevent lawsuits such as that brought by murderer and crime boss George Marrogi, who won a Supreme Court judgment in January that found some of his maximum-security units did not provide adequate open-air access.
Amendments to the Corrections Act would allow the state to limit a prisoner’s open-air rights “on an ongoing basis or for extended periods of time”, according to the bill’s explanatory memorandum.
The legislation also stops the state from paying damages for any previous breaches of a prisoner’s open-air rights, despite corrections being plagued with prolonged lockdowns in recent years.
Moore-Gilbert, who spent 804 days detained in Iran, said even the Islamic Revolutionary Guard Corps provided her access to fresh air while she was imprisoned.
“This terror organisation gave me a minimum of 30 minutes a day outside, even when I was held in solitary confinement,” she said.
“Why on earth is the Victorian government proposing to lower its human rights standards beneath those of even the despotic regime in Iran?”
Then-corrections minister Paul Hamer told parliament in June there “may not be any suitable infrastructure solutions available” to provide high-risk prisoners like Marrogi with open air, as the recent Supreme Court decision required.
The murderer and drug trafficker is one of the most challenging prisoners in Victoria, having run a $55 million drug empire from behind bars and once spraying prison guards with faeces.
Marrogi’s lawsuit revealed corrections officials believed he had previously plotted to break out from Barwon Prison via helicopter.
Prison managers argued different types of roof mesh were necessary for Marrogi’s rear yards to prevent escape, self-harm, weather damage, and contraband being thrown in.
Justice Claire Harris, however, ruled certain partially covered cells in the Exford unit at the Metropolitan Remand Centre, plus the Olearia, Melaleuca and Acacia units at Barwon Prison, did not provide adequate open-air access.
Harris said there was no “clear bright line” for what constituted being “in open air” but noted the current right relied on experiencing weather, suggesting exposure to the elements such as rain, wind and sun outside was required.
Her decision has been appealed.
Opposition police spokesman Brad Battin told parliament the Coalition would support proposed changes to open-air rights as it recognised they were not always practical.
“I think it is important that the management of the prison can make a decision in the best interests of staff – not in the best interests of prisoners – to protect the staff who are within that prison,” he said.
However, ombudsman Marlo Baragwanath told this masthead: “If these changes are passed into law, they’ll have wide-ranging and significant human rights implications for anyone in custody.”
Marrogi’s lawyer, Zyg Zayler, said changing the law after Harris’ decision reflected poorly on Victoria.
“The quality of our society is determined by how we treat our most difficult people,” he said. “Maybe their prospects would be better if we didn’t treat them inhumanely.”
Former prisoner Kelly Flanagan said her mental health suffered enormously when she was stuck inside at the Dame Phyllis Frost Centre, where an 18-year-old died last month.
“You’re stripping them of everything that makes them human by taking away their fresh air,” Flanagan said.
A state government spokesperson said the open-air right for Victorian prisoners remained, and the changes were “operational decisions” to ensure access could be managed safely.
“This brings us into line with other jurisdictions like NSW, and makes a longstanding practice clear in law,” they said.
NSW prisoners confined to their cell are allowed an hour each day for exercise in the open air subject to “practical limitations” but only those “that may from time to time arise”. Normal prisoners are allowed at least two hours outside.
The Victorian Aboriginal Legal Service said making open-air rights subject to “operational considerations” was a “vague and open-ended excuse” to deny prisoners fresh air.
Australian Lawyers Alliance spokesman Greg Barns, SC, also took issue with retrospective legislation removing compensation rights and called for it to be withdrawn.
Liberty Victoria president Gemma Cafarella said the bill marked just the fifth time a declaration to override Victoria’s human rights charter had been used since it was enacted in 2006.
Liberal MP Chris Crewther said last month the government had “not adequately explained why an indefinite exclusion is necessary” compared with a normal five-year exemption.
A protest against the bill is planned outside Victorian parliament on Wednesday before a vote in the Legislative Council is expected on Thursday.
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Lachlan Abbott is a crime reporter at The Age. He was previously a city reporter and covered breaking news.Connect via email.
