Seeing the Sky, Feeling the Rain: The Basic Right of People in Prison to Access Open Air
Sohini Mehta
Monique Hurley
Sohini Mehta and Monique Hurley
25.6.2026
Solitary confinement is the practice of confining a person in prison for 22 hours or more a day without meaningful human contact. Despite its archaic and barbaric nature, this practice is authorised in all Australian states and territories under different guises: isolation, separation, seclusion, segregation and lockdown.
The cruelty of solitary confinement is compounded when prison authorities deny people in prison access to open air – even where, in some jurisdictions, bare minimum safeguards purport to guarantee at least one hour in the open air per day.
The humane treatment of people in prison demands that people in prison have adequate access to open air and can see the sky, be exposed to natural elements and surroundings, and to exercise outdoors. It also demands that solitary confinement be banned by law in all Australian jurisdictions.
This post charts recent public law challenges in the Australian Capital Territory (ACT) and Victoria, relying on human rights grounds, which clarify what the right to access open air means.
Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83 (Davidson)
In Davidson, the plaintiff was detained in solitary confinement in the Management Unit at the Alexander Maconochie Centre (AMC) for 63 days, during which he was denied access to the general exercise yard and had limited access to the ‘rear courtyard’ adjoining his cell, where there was no air circulation or breeze, no direct sunlight and inadequate space to exercise (at [44]).
Mr Davidson brought proceedings in the Supreme Court of the ACT to challenge the lawfulness of using the rear courtyard to discharge obligations in the Corrections Management Act 2007 (ACT) to ensure people in prison have at least one hour of open air and one hour of exercise daily.
The right to have ‘access to the open air’ in the ACT
Under s 45(1) of the Corrections Management Act 2007 (ACT) the Director-General must ensure, as far as practicable, that people in prison:
(a) have access to the open air for at least one hour each day; and
(b) can exercise for at least one hour each day.
The relevant 2019 Operating Procedure, made under the s 14 power under the Corrections Management Act authorising the Director-General to issue policies consistent with that Act, provided at clause 4.3 that ‘[t]he open rear cell door will count as the minimum one (1) hour of fresh air and exercise.’
Section 19(1) of the Human Rights Act 2004 (ACT) (the Human Rights Act) provides that anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
Section 30(1) of the Human Rights Act provides that so far as it is possible to do so consistently with its purpose, ACT laws must be interpreted in a way that is compatible with human rights, and s 40B of the Human Rights Act makes it unlawful for public authorities to act in a way that is incompatible with a human right or fail to giver proper consideration to a relevant right when making a decision.
Interpreting the open air right
Justice Loukas-Karlsson determined that the proper construction of s 45 of the Corrections Management Act 2007 (ACT) occurs against the background of the Human Rights Act, and interpreted the contents of the right to humane treatment when deprived of liberty by reference to international human rights law, including the International Covenant on Civil and Political Rights and the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
The conditions Mr Davidson was subjected to: Key evidence and findings
Mr Davidson provided evidence that:
he had to ‘pretty much beg for [AMC staff] to open the back door’ (at [60]);
there were occasions when he was ‘locked down 24 hours a day’ (at [74]);
when he requested access and it was denied, he generally would not ask again because he was ‘too ashamed’ and did not want to ‘beg’ (at [73]);
while detained in the Management Unit, Mr Davidson felt he was at the lowest point of his entire life and attempted suicide (at [68]); and
on an occasion where Mr Davidson spent 28 consecutive days in the Management Unit, he felt he was ‘never getting out and that he was going to be in the cell forever' (at [69]).
Justice Loukas-Karlsson conducted a view of a cell and rear courtyard in the Management Unit, as well as the two general exercise yards located nearby.
Justice Loukas-Karlsson found that the rear courtyard was not ‘in the open air’, but instead ‘in reality, another small enclosed room’ (at [332]). Her Honour observed that the mesh ceiling undeniably obstructed a clear view of the sky, impeded natural sunlight and crossflow of air, finding that ‘the impression of being outdoors is realised through the provision of a spacious area with free flow of fresh or open air, ample natural light, a clear view of the sky, exposure to the natural elements and preferably, a view of vegetation’ (at [244]).
Justice Loukas-Karlsson found that when the Director-General denied Mr Davidson access to the open air, they acted incompatibly with and failed to give proper – or indeed any – consideration to the right to humane treatment when deprived of liberty (at [414]). Her Honour additionally made observations about the importance of access to open air and exercise for people subjected to solitary confinement (at [386]):
In summary, a denial of open air and exercise is a failure to treat a detained person with humanity and dignity … [A]ccess to at least one hour in the open air and an adequate space to exercise is not ‘unavoidable in a closed environment’, particularly as the requirement is designed precisely for the closed prison environment. Such access has particular importance for detainees in segregation or separate confinement.
The outcome and its impact
The ACT Supreme Court made a number of declarations (at [439]), including that:
access to the rear courtyard of the Management Unit at AMC does not comply with s 45 of the Corrections Management Act 2007 (ACT); and
the Director General breached Mr Davidson’s human rights to humane treatment and dignity under s 19(1) of the Human Rights Act.
Justice Loukas-Karlsson refused Mr Davidson’s novel request for an order to have his sentence backdated by the 63 days for which his human rights were breached (see [422], [436]), noting that this would not be a proper exercise of judicial power in circumstances where the ACT Supreme Court was not sitting in review or appeal of Mr Davidson’s sentence (at [435]).
Mr Davidson, together with several other plaintiffs, also pursued claims for false imprisonment arising from the denial of the required minimum access to open air and exercise while held in the Management Unit at AMC (see Featherstone v Australian Capital Territory [2022] ACTSC 250). The status or outcome of that litigation is not known.
Subsequently, the 2019 Operating Procedure was amended to remove reference to the obligation to provide access to open air under the Corrections Management Act 2007 (ACT), reducing transparency around whether and how this right is being given effect. Subsequent reviews of AMC by the Inspector of Correctional Services indicate that access to open air may still be in issue, noting that exclusion zones around fences have meant that several units of the prison have ‘very little outdoor space to use for fresh air and exercise’.
Marrogi v Secretary, Department of Justice and Community Safety [No 1] [2026] VSC 4 (Marrogi)
More recently, in Victoria, Mr Marrogi brought judicial review proceedings in the Supreme Court of Victoria to challenge the lawfulness of using ‘yards’ at a number of Victorian prisons to discharge the right of people in prison to have an hour ‘in the open air’ each day under s 47(1)(a) of the Corrections Act 1986 (Vic). Mr Marrogi’s claims related to his imprisonment in restrictive high-security and management units at Barwon Prison and the Metropolitan Remand Centre (MRC) during specified periods of time.
The right ‘to be in the open air’ in 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’.
Section 22(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) provides that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
Section 32(1) of the Charter requires that, so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. Section 38(1) makes it unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a human right.
Interpreting the open air right
In Marrogi, Justice Harris found that, consistent with the purpose of the Corrections Act 1986 (Vic), s 47(1)(a) is directed at the welfare of people in prison, and that (at [66]):
Having a minimum amount of time in the open air furthers the physical and mental well-being of prisoners who may otherwise be confined for long periods to their cells.
On the proper construction of the right to be in the open air pursuant to the Corrections Act 1986 (Vic), Mr Marrogi referred the Court to three main authorities:
commentary on the Nelson Mandela Rules, which provide that ‘in the open air’ requires a ‘relatively large area’ where it is possible to ‘see natural growth and vegetation’ (at [51]-[52]);
the High Court of Ireland’s decision in Whelan v Governor of Mountjoy Prison [2015] IEHC 273, which found that a fully enclosed yard, roofed by steel was not ‘in the open air’, noting that ‘a person is in the open air when he/she can look up and see the sky and have the sun in his eyes or feel the rain on her face’ (at [55]-[57]); and
the aforementioned case of Davidson (at [60]-[62]).
While in Davidson, the Court’s interpretation of the right to open air was informed by international human rights standards, including the Nelson Mandela Rules, in Marrogi, Justice Harris did not accept that s 47(1)(a) imports a requirement to have an outlook on vegetation (at [68]). However, her Honour did state that it is relevant that an ability to see natural vegetation is likely to enhance the sense of being ‘in the open air’ (at [69]).
Closely considering the text of s 47(1)(a), Justice Harris found there is no ‘bright line’ as to whether particular conditions comply with the right to be in the open air, but it instead requires (at [70]):
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. Matters such as whether there is an ability to look out to more open space, or vegetation, and the extent to which it is possible to move around in the space to exercise will also be relevant to whether a space enables a prisoner to be ‘in the open air’.
The conditions Mr Marrogi was subjected to: Key evidence and findings
Mr Marrogi provided evidence of the restrictive conditions of his confinement, including in one instance no daily out of cell time apart from access to the rear yard connected to his cell (at [31]).
Similarly to Davidson, the presiding judge conducted a view of certain cells in Barwon Prison and the MRC to help determine whether they met the statutory right to be ‘in the open air’ (at [26]-[27]). In both cases, the judges appear to have been heavily informed by evidence gleaned from their inspections of prison conditions during the views in each case, with the assessment of whether or not particular ‘yards’ satisfied the statutory right to open air turning on the specifics of the particular spaces inspected.
At the MRC’s Exford Unit, the small yards attached to cells 1, 2, 12, and 23 were largely enclosed by concrete walls, mesh roofs, and overhangs, with limited sunlight, obstructed views of the sky, and no sense of wind or weather. Similarly, at Barwon Prison, the Olearia Unit’s small yards for cells 12 and 29, as well as the rear yards of the Melaleuca and Acacia Units, were heavily enclosed with mesh or steel coverings, dense walls, and had fluorescent lighting, offering no genuine experience of being outdoors. These yards were all found not to satisfy the statutory right to be in the open air (see [71]-[87]; [93]-[103]).
By contrast, Justice Harris found some of the larger yards in the Olearia Unit and Acacia Unit did give a sense of being outdoors and constituted being ‘in the open air’ within the meaning of s 47(1)(a) of the Corrections Act 1986 (Vic) (see [88]-[92], [104]-[113]).
The outcome and its impact
Justice Harris subsequently made a number of declarations, including that on certain days the defendants had:
denied Mr Marrogi his statutory right to be ‘in the open air’ and thus acted unlawfully, by offering or providing Mr Marrogi with access only to one of the following yards:
the rear yards for Cells 1, 2, 12 and 23 in Exford Unit, Metropolitan Remand Centre;
the rear yards for Cells 12 and 29 in Olearia Units 2 and 3, Barwon Prison;
the rear yards for Loss of Privilege Cells 1 and 2 and the Observation Cell in Melaleuca Unit 4, Barwon Prison; and
the rear yards for Cells 21, 23 and 24 in Acacia Unit 4, Barwon Prison.
acted incompatibly with Mr Marrogi’s human right to humane treatment in s 22(1) of the Charter, contrary to s 38(1) of the Charter, and thus acted unlawfully, by offering or providing Mr Marrogi with access only to one of the yards identified above.
While it is still too early to assess the full impact of Marrogi, in theory, the declaratory relief granted should prompt change and people in prison who have been subjected to similar conditions to those endured by Mr Davidson and Mr Marrogi may have grounds to challenge those conditions, including by way of judicial review.
The broader implications of Davidson and Marrogi
Both Davidson and Marrogi emphasise the importance of access to open air for people in prison and illustrate how the denial of open air to people in prison often coincides with other degrading features of imprisonment, including solitary confinement.
The cases additionally demonstrate how restrictive conditions of confinement can be tested against statutory rights to open air. International human rights law can inform the content of the right to open air, and other rights of people in prison, where international jurisprudence may be ‘read in’ consistently with statutory purpose. In the ACT and Victoria, interpretive provisions in the Human Rights Act and Charter permit this approach.
In both cases, human rights legislation enabled a remedy by way of declarations that prison authorities had breached people’s rights to humane treatment in prison. Such declarations should help drive systemic change away from reliance on harmful practices and towards greater compliance with bare minimum standards for the treatment of people in prison. Alarmingly, however, recent reporting indicates that the Victorian Government is attempting to narrow the scope of the open air right and access to remedy in light of Marrogi, which we also understand is the subject of an appeal by the State of Victoria.
Viewed more broadly, the cases of Davidson and Marrogi underscore that even the bare minimum standards for the treatment of people in prison are falling short in practice and systemic disregard for human rights prevails. Rather than relying on individuals to bring legal challenges after harm occurs, law reform is critically needed. This reform must be guided from the outset by Australia’s obligations under international law to treat all people deprived of their liberty with humanity and respect for their dignity, as reflected in human rights legislation in some Australian jurisdictions (the ACT, Victoria, and Queensland), and by international minimum standards for the treatment of people in prison. This reform starts with governments across Australia enacting legislation to ban cruel and degrading practices like solitary confinement.
Sohini Mehta is a Senior Lawyer at the Human Rights Law Centre, dedicated to challenging the systemic abuse of people in prison, police misconduct and other forms of state violence.
Monique Hurley is a human rights lawyer committed to working alongside people with lived experience of incarceration to hold governments to account for the mistreatment of people behind bars. She was formerly an Associate Legal Director at the Human Rights Law Centre.
Suggested citation: Sohini Mehta and Monique Hurley, ‘Seeing the Sky, Feeling the Rain: The Basic Right of People in Prison to Access Open Air’ (25 June 2026) <https://www.auspublaw.org/blog/2026/6/seeing-the-sky-feeling-the-rain-the-basic-right-of-people-in-prison-access-open-air>