Victoria’s First Nations body breaks new ground in support of prisoners’ ‘open air’ rights

For the first time since its creation, Gellung Warl has used its powers to challenge the Victorian government on a legislative bill that passed parliament last week.

Gellung Warl is Victoria’s official, permanent representative body for First Peoples. It was established in May this year, under the state’s Treaty Act.

It is opposing a bill that will remove the right of people in prison to at least one hour in the open air each day.

The Labor government’s Corrections Amendment Bill 2026 gives authorities the opportunity to deny prisoners this crucial outdoor time “subject to operational considerations” or inclement weather.

The power to oppose legislative reform has been invoked for the first time because Gellung Mar believes restricting open-air access in prisons is contrary to Treaty obligations.

A litmus test for Treaty

Gellung Warl is Australia’s first state-wide First Peoples representative body. In 2018, the Victorian government committed to advancing a treaty process with Aboriginal Victorians, which encompassed Truth Telling and the establishment of the First Peoples’ Assembly of Victoria.

Gellung Warl can provide advice to parliament and government on matters that affect First Nations peoples. It can also make recommendations in relation to Closing the Gap commitments.

Now, for the first time since its creation, Gellung Warl has used its powers to challenge the Victorian government on a legislative bill that passed parliament last week.

The co-chairs of Gellung Warl, Meriki Onus and Djaran Murray-Jackson, wrote to key ministers claiming the bill was “inconsistent with the spirit and intent of Statewide Treaty”.

They identified:

• the law would have a disproportionate impact on First Peoples
• parts of the bill were inconsistent with the Treaty
• it “undermines the renewed relationship between First Peoples and the state”.

However, the bill passed and the government now has 60 days to respond to the concerns expressed by Gellung Warl.

Why is open air so important?

Access to open air for people in prison is a fundamental human right. The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) stipulate there must be a minimum of one hour in the open air per day.

Exposure to open air is essential for the physical and mental health of people in prison, enhances emotional regulation, and improves prison safety.

While in open air, prisoners should be able to walk around in relatively large areas and should also, if possible, be able to see natural growth and vegetation.

The practice in some countries of placing large numbers of prisoners into small walled yards, which are in effect cells without roofs, does not satisfy the obligation to give the opportunity to exercise in open air.

Early in 2026, the Supreme Court of Victoria determined the Victorian government failed to meet its open-air requirements for people in prisons. Before the amendment, Victoria already had one of the weakest provisions in the country for open-air access in prisons. In comparison, New South Wales and Queensland provide for a minimum of two hours per day.

First Nations prisoners may be more affected

The impact of ongoing confinement in cells will impact First Nations peoples disproportionately.

In 2025, the proportion of First Nations peoples in Victorian prisons increased by 26%. Although constituting 1% of the general Victorian population, First Nations peoples are 14% of the Victorian prison population.

The increasing imprisonment of First Nations people undermines the Closing the Gap justice targets that continue to worsen.

This crisis is more intolerable and threatening to the lives of First Nations people when it is matched with inhumane conditions in prisons.

First Nations peoples’ access to sunlight, greenery and fresh air is crucial for their physical and spiritual health.

Where to now?

The Victorian government’s commitment to Treaty has been eclipsed by a renewed emphasis on “law and order”.

The willingness to proceed with legislation inconsistent with the Treaty and the position of the Gellung Warl co-chairs may suggest the Treaty is a box-ticking exercise.

The Coalition has indicated it will scrap the Treaty if elected in November.

This state of affairs is an ominous start to Treaty commitments that threaten to return to business as usual where the gap widens, especially in relation to justice, and First Nations peoples continue to suffer from government policies that undermine their social, cultural and emotional health and wellbeing.