Prisons are inherently brutal places where cruel and degrading practices are rife. With people in prisons across the country being subjected to an “epidemic of prison lockdowns”, it is important to note that bare minimum safeguards exist in law, in most jurisdictions, that purport to guarantee at least some time ‘in the open air’ each day for people behind bars. A high level summary of the relevant laws are as follows:

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Western Australia

There is no statutory entitlement to open air access pursuant to the Prisons Act 1981 (WA) or the Prisons Regulations 1982 (WA). The Prisons Act 1981 (WA) does, however, authorise the CEO of the Department of Justice to administer Prison Rules and the Operating Policies and Procedures.

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Prison Rule 10 provides a minimum entitlement to “access to open air for a minimum of three hours each day”, weather permitting. Where a person is, however, subject to a restrictive regime pursuant to the law, the Operating Policy and Procedure provides that a person’s entitlement is reduced to “access to open air for a minimum of 1 hour each day” should the weather permit.

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Victoria

Section 47(1)(a) of the Corrections Act 1986 (Vic) provides that every person in prison has “if not ordinarily engaged in outdoor work, the right to be in the open air for at least an hour each day, if the weather permits”.

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Queensland

There is no statutory entitlement to open air access pursuant to the Corrective Services Act 2006 (Qld) or the Corrective Services Regulation 2017 (Qld).

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The Inspection Standards for Queensland Prisons do, however, provide at standard 53 an expectation that “all prisoners can spend two hours recreating in open and fresh air every day”. While these standards are not binding, they do operate as a benchmark for the Inspector of Detention Services’ reporting on prison conditions.

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Where a person is, however, subject to separate confinement, they are guaranteed “the opportunity to exercise, in the fresh air, for at least 2 daylight hours a day, unless a health practitioner advises that it would not be in the interests of the prisoner’s health to exercise for a stated period or indefinitely” pursuant to regulation 4(1)(d) of the Corrective Services Regulation 2017 (Qld).

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New South Wales

Section 53 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) provides that people are “to be allowed at least 2 hours each day for exercise in the open air”.

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Exceptions exist for people confined to a cell pursuant to sections 53 or 56 of the Crimes (Administration of Sentences) Act 1999 (NSW) – which refer to penalties that may be imposed by the governor or visiting magistrate – who are “to be allowed at least 1 hour each day for exercise in the open air”.

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South Australia

There is no statutory entitlement to open air access pursuant to the Correctional Services Act 1982 (SA) or the Correctional Services Regulation 2016 (SA).

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While not publicly available, the Department of Correctional Services also applies a range of Standard Operating Procedures which may include a minimum entitlement to open air access.

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Tasmania

Section 29(1)(a) of the Corrections Act 1997 (Tas) provides that “if not ordinarily engaged in outdoor work, the right to be in the open air for at least an hour each day if the facilities of the prison are suitable for allowing the prisoner or detainee to be in the open air”.

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Australian Capital Territory

Section 45(1) of the Corrections Management Act 2007 (ACT) requires that the Director-General must ensure, as far as practicable, that people in prison “have access to the open air for at least one hour each day” and “can exercise for at least one hour each day”.

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Northern Territory

There is no statutory entitlement to open air access pursuant to the Correctional Services Act 2014 (NT) or the Correctional Services Regulations 2014 (NT).

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Section 205 of the Correctional Services Act 2014 (NT) vests broad authority in the Commissioner to issue directions which may include a minimum entitlement to open air access.

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While all states and territories subscribe to the national, non-binding Guiding Principles for Corrections in Australia which provide for a minimum of one-hour of open air access a day, minimum entitlements vary in the law as set out above.

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Whether a lockdown or other restrictive prison practice unlawfully reduces outdoor time depends on the facts of each case, including the nature of the outdoor space to which access is offered or provided, and how much outdoor time is provided.

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In jurisdictions where there are human rights laws – Victoria, the ACT and Queensland – prison authorities must properly consider and act compatibly with those laws, including the right to be treated with dignity when deprived of liberty. The laws will, so far as possible to do so consistently with their purpose, be interpreted in a way that is compatible with the rights protected under the human rights laws.

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New Case

The recent Victorian case of Marrogi v Secretary, Department of Justice and Community Safety & Ors (No 1) [2026] VSC 4] shows how restrictive conditions of confinement can be tested against statutory rights to open air. In that case, Mr Marrogi brought judicial review proceedings in the Supreme Court of Victoria challenging his inadequate access to open air by reference to section 47(1)(a) of the Corrections Act 1986 (VIC), as well as his right to humane treatment in prison pursuant to the Charter of Human Rights and Responsibilities Act 2006 (VIC).

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As part of the case, the Judge conducted a ‘view’, or inspection, of certain cells and went on to find that some of the yards that Mr Marrogi was offered or provided access to – for example, some which were closed by concrete walls, mesh or steel coverings, limited sunlight and/or fluorescent lighting – did not constitute being ‘in the open air’. In closely considering the text of section 47(1)(a) of the Corrections Act 1986 (VIC), the Judge found there was no “bright line” as to whether particular conditions comply with the right, but it instead required “an evaluative exercise”.

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The Supreme Court of Victoria declared that, on relevant days and in relation to specific yards, prison authorities acted unlawfully by denying Mr Marrogi his right to be ‘in the open air’ and by acting incompatibly with his right to humane treatment.

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What to Do if Subjected to Lockdowns? Keeping Records and Making Complaints

When people in prison are being subjected to lockdowns or other restrictive prison conditions, they should keep records of their experiences. For lockdowns, this could include the frequency and length of lockdowns (for example, any in excess of 24 hours); time out of cell and time interacting with others; unscheduled lockdowns in addition to the rolling schedule; experience of lockdowns with reference to the type of unit they are housed in; interference with appointments; interference with ability to connect with children, family and other supports; interference with programs (for example, offence-specific programs required for parole eligibility); interference with access to cultural spaces and supports; and psychological and wellbeing impacts.

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Complaint pathways differ in each jurisdiction, but people in prison can generally complain to the Ombudsman and could also consider raising their concerns with any independent visiting services that attend their prison. The treatment outlined above can also potentially be relevant to submissions a criminal lawyer might make about bail and/or sentencing and will also be relevant if a person in prison seeks legal advice about the lawfulness of being subjected to lockdowns, including sentence remissions, judicial review and civil claims.