FACEMASKS IN VICTORIA – BREACH OF YOUR HUMAN RIGHTS OR NOT?
Do you get your news and information exclusively from YouTube and questionable Facebook sources? Do you find yourself constantly invoking the Magna Carta? Do you consider yourself a Sovereign citizen? Have you have been called “Karen” by someone in a public place after you have embarrassed yourself with a particularly loud, expletive laden and misguided outburst? Or are you scared of 5G? If you answered yes to any of the above, then we suspect you probably think the Victorian Government’s mandatory facemask order is a breach of your human rights. It is also likely that you are displaying symptoms of the highly transmissible Dunning Kruger Effect. We advise that you wear a face covering to avoid spreading your dangerous misinformation.
Is the mandatory facemask directive lawful?
The Victorian Government’s mandatory facemask directive is lawful, and it does not breach the Victorian Charter of Human Rights and Responsibilities Act 2006 and neither does it violate any international human rights instruments. The Victorian Government is empowered to implement protective policies due to the State of Emergency declaration made in early 2020. This has been confirmed by the Victorian Equal Opportunities and Human Rights Commission. Additionally, unlike other State and Territory legislation Victoria’s State of Emergency directive is finite and cannot extend indefinitely.
Where does the power to enforce mandatory face masks come from?
On or around 16 March 2020, the Victorian Premier Daniel Andrews announced a State of Emergency had been declared across Victoria to provide the means to more quickly combat the spread of COVID-19. The State of Emergency has since been extended, recently for a further 6 months by Parliamentary vote overnight on 1 September leading into 2 September 2020. This extension does not mean the current stage 4 restrictions will persist for a further 6 months, the directive just allows the State government to continue to act expeditiously to combat the spread of Covid-19 where necessary. Without the declaration of a State of Emergency, the response to any future Covid-19 outbreak will be bogged down in parliamentary process which will detrimentally impact our ability to respond to any threats. The State of Emergency declaration provides a scope for the government to exercise its power to implement certain measures as they are required until such time as Covid-19 no longer poses a considerable threat or until the State of Emergency expires. The stage 4 restrictions will ease upon the advice of leading medical professionals. The State of Emergency declaration came pursuant to the Public Health and Wellbeing Act 2008 (Vic). Once a State of Emergency is declared the Victorian Chief Health Officer is empowered to act to eliminate or minimise a serious risk to public health by restricting movement, detaining people, preventing entry to premises or providing any other directions considered reasonable to uphold public health and reduce the spread of infection and lower the burden on the health system.
Only certain authorised officers who have been appointed by the Victorian Chief Health Officer may exercise Emergency Powers, but they are restricted in what powers they can exercise. One such directive implemented under these powers is the use of mandatory face coverings when leaving your house for one of the permissible reasons.
The Victorian Charter of Human Rights compels public authorities like Victoria Police or the Department for Health and Human Services to take steps to protect and enforce rights, which includes the right to life. As such, any directive to wear a face covering and enforcement measures used to ensure this directive is adhered to, is satisfactory, if the measures are appropriate to protect the health of Victorians. This means that the face mask directive falls in line with the Victorian Charter of Human Rights. Furthermore, there are exceptions to the mandatory face mask directive. If you have a medical condition that is detrimentally impacted by wearing a mask, then you can be excepted from the obligation. Further exceptions include if you are involved in strenuous exercise, eating or drinking or communicating with someone who has impaired hearing.
Also, businesses are entitled to refuse service to protect and maintain the health and safety of their staff and other customers, should you refuse to wear a mask.
You may have grounds to claim discrimination if you are refused service by a business when you are not wearing a mask and the reason why you are not wearing a mask is because of a disability. You must be able to show the close association between not wearing a mask and the disability to have any basis in your assertion.
Wearing a mask is a lawful directive in Victoria. It is not a breach of your human rights. The directive is merely a small check on your own personal freedom, which is worth it if it will save the lives of your loved ones and others within the community. Do the right thing.
This article is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this article without first obtaining specific professional advice.
DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can get from De Marco Lawyers and other relevant experts.