A number of Victorian prisons may have to be renovated or rebuilt after the Supreme Court found that no “open air” was being provided to inmates in multiple units.
In a judgment handed down on Monday, Justice Claire Harris found that George Marrogi, who has been incarcerated at Barwon Prison and the Metropolitan Remand Centre (MRC), was treated in a way contrary to laws and regulations because he was denied his right to have at least one hour outside “in the open air”.
The court also found that Marrogi had his human rights breached on a number of occasions when he was strip searched in prison.
The judgment hinged on what constitutes “open air”, and whether the cell yards and exercise areas in many high-protection units in Victorian prisons were providing the minimum one hour outside that the Corrections Act requires.
After visiting the prison units in question in person, Justice Harris found that those incarcerated at the Acacia, Olearia and Melaleauca Units at Barwon Prison, and the Exford and Loss of Privileges Units at MRC, were being denied their right to have one hour per day in the “open air”.
The Victorian government will now likely have to renovate or rebuild these units to make them compliant with the law.
A spokesperson for the Department of Justice and Community Safety told About Time it would “take the time to fully consider the court’s findings”.
A number of Victorian prisons may have to be renovated or rebuilt after the Supreme Court found that no “open air” was being provided to inmates in multiple units.
In a judgment handed down on Monday, Justice Claire Harris found that George Marrogi, who has been incarcerated at Barwon Prison and the Metropolitan Remand Centre (MRC), was treated in a way contrary to laws and regulations because he was denied his right to have at least one hour outside “in the open air”.
The court also found that Marrogi had his human rights breached on a number of occasions when he was strip searched in prison.
The judgment hinged on what constitutes “open air”, and whether the cell yards and exercise areas in many high-protection units in Victorian prisons were providing the minimum one hour outside that the Corrections Act requires.
After visiting the prison units in question in person, Justice Harris found that those incarcerated at the Acacia, Olearia and Melaleauca Units at Barwon Prison, and the Exford and Loss of Privileges Units at MRC, were being denied their right to have one hour per day in the “open air”.
The Victorian government will now likely have to renovate or rebuild these units to make them compliant with the law.
A spokesperson for the Department of Justice and Community Safety told About Time it would “take the time to fully consider the court’s findings”.
Justice Harris said the requirement for all people in prison to receive at least one hour in the open air was not dependent “in any way” on the behaviour of that person, and is a minimum standard.
“There is no clear bright line delineating what will constitute a space which enables a prisoner to ‘be in the open air’,” Justice Harris wrote.
“It is to a significant degree an evaluative exercise having regard to factors including whether the space permits access to the sun, rain, wind and other aspects of the prevailing weather, and whether it otherwise provides a sense of being exposed to the weather and in the open air.”
The Court also considered factors such as the size of the area, whether it allows for exercise and walking around that is not possible indoors.
“A space that is barely larger than a prisoner’s cell is unlikely to satisfy the implicit requirements of the space being an ‘open air’ space by enabling movement and a sense of being outdoors,” Justice Harris said.
It is also relevant whether a person can look out to more open space or vegetation, and whether they are able to move around in the space, the Court found.
The protection units at MRC and Barwon Prison have rear yards attached to the cells, allowing those being held there to go outdoors at specific times of the time, but the presence of concrete walls, layered mesh, metal roofs and limited space meant these areas did not amount to providing open air, Justice Harris found.
After visiting the rear yards in the Exford unit at MRC, the Court found that “there is no possibility of feeling the rain” and “no sensation of being exposed to the sun”.
The exercise yards at Olearia and Acacia do have enough exposure to weather and enough room to move to constitute providing open air to those incarcerated there.
The Court also declared that every time Marrogi was strip searched from May 2023 to June 2025 he was not allowed to dress privately immediately afterwards, in breach of the Corrections Regulations and his human rights under the Charter of Human Rights and Responsibilities.
A similar legal challenge centred on the right to one hour of open air each day has been launched by a number of men incarcerated at the newly opened Western Plains Correctional Centre, and by a man incarcerated at the Melaleuca unit at Barwon.
Justice Harris said the requirement for all people in prison to receive at least one hour in the open air was not dependent “in any way” on the behaviour of that person, and is a minimum standard.
“There is no clear bright line delineating what will constitute a space which enables a prisoner to ‘be in the open air’,” Justice Harris wrote.
“It is to a significant degree an evaluative exercise having regard to factors including whether the space permits access to the sun, rain, wind and other aspects of the prevailing weather, and whether it otherwise provides a sense of being exposed to the weather and in the open air.”
The Court also considered factors such as the size of the area, whether it allows for exercise and walking around that is not possible indoors.
“A space that is barely larger than a prisoner’s cell is unlikely to satisfy the implicit requirements of the space being an ‘open air’ space by enabling movement and a sense of being outdoors,” Justice Harris said.
It is also relevant whether a person can look out to more open space or vegetation, and whether they are able to move around in the space, the Court found.
The protection units at MRC and Barwon Prison have rear yards attached to the cells, allowing those being held there to go outdoors at specific times of the time, but the presence of concrete walls, layered mesh, metal roofs and limited space meant these areas did not amount to providing open air, Justice Harris found.
After visiting the rear yards in the Exford unit at MRC, the Court found that “there is no possibility of feeling the rain” and “no sensation of being exposed to the sun”.
The exercise yards at Olearia and Acacia do have enough exposure to weather and enough room to move to constitute providing open air to those incarcerated there.
The Court also declared that every time Marrogi was strip searched from May 2023 to June 2025 he was not allowed to dress privately immediately afterwards, in breach of the Corrections Regulations and his human rights under the Charter of Human Rights and Responsibilities.
A similar legal challenge centred on the right to one hour of open air each day has been launched by a number of men incarcerated at the newly opened Western Plains Correctional Centre, and by a man incarcerated at the Melaleuca unit at Barwon.
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