Does a Face Mask Requirement Infringe on Human Rights?

By Poppy Morandin.

Victoria’s rapid outbreak of COVID-19 saw the state’s parliament introduce a face covering requirement for those leaving their own premises, sparking certain individuals to claim there has been an infringement on their rights.

Introduced under the Public Health and Wellbeing Act 2008 (Vic), section 5(6) of the Stay at Home Directions (Restricted Areas) (No 4) prescribes that it is mandatory to wear a face covering when leaving residences around metropolitan Melbourne and the Mitchell Shire.

A face covering includes a face mask or shield designed to be worn over the nose or mouth to provide the wearer protection against infection.

Contravening the direction comes with a $200 fine, by way of penalty infringement notice.

Exceptions are available in situations such as where the person is an infant or young child, a person cannot due to the nature of their work, and where a person has a physical or mental health condition which makes wearing a face covering unsuitable, with a full list provided under section 5(7).

No such order exists in NSW, despite rising cases and the Committee for Sydney, a think tank comprising of major companies, universities, not-for-profits, local and state government departments and key cultural, sporting and marketing bodies, calling for the Premier Gladys Berejiklian to mandate the use of masks.

The current advice regarding face masks in NSW is that it is recommended where social distancing cannot be guaranteed, but they are not required by law.

“Melbourne didn’t mandate its mask requirement until after it imposed a lockdown. Sydney can choose a different path and impose the mask requirement as a way to forestall and hopefully avoid a second lockdown entirely.

“By changing our habits to wear masks we can help to slow the rate of transmission, allowing the economy to stay open and life to go on as much as possible.

“The only way this will work is with a mandate. In the real world, it is not likely we will get above 80% compliance with wearing masks through a voluntary exhortation. It is simply too big of a cultural change”, said Gabriel Metcalf, chief executive of the Committee of Sydney.

Whilst asserting that a majority of the Victorian community have complied with the requirement, there have been incidents in which individuals seem to be wilfully engaging in disobedience.

“Whilst police will use discretion in the first seven days since the [Chief Health Officer’s] direction was issued, we will not hesitate to issue fines to people who are obviously and blatantly showing a disregard for community safety by failing to wear a mask,” said a statement by Victoria Police.

Discretion is available in certain circumstances to Victorian Police when imposing the new rule, such as in situations where a person is not aware of the new laws, perhaps for cultural or language reasons, where a person cannot afford a face covering (for example, homeless people); and where a person cannot wear the face covering, such as people with a disability.

A video has gone viral in which an anti-masker dubbed ‘Bunnings Karen’ waltzed into Maribyrnong Bunnings claiming that by asking why she wasn’t wearing a mask, and asking her to leave they were “discriminating against her…as a woman,” and that it was a “a breach of the 1948 Charter of Human Rights to discriminate against men and women,”.

The bizarre rant has been accompanied by many others, with numerous videos circulating on social media.

Premier Daniel Andrews has responded by stating: “if you’re just making a selfish choice based on your belief, your personal belief, quoting something you’ve read on some website, it’s not about human rights,”

Human rights in Australia are protected by the Australian Constitution, the Constitutions of the states and territories, various pieces of legislation, and the common law, which comes from the courts.

Australia is also signatory to various international human rights treaties

The debate has prompted organisations such as Amnesty Australia to come forward posting “Dear Australia, wearing a mask to keep everyone safe does not violate your human rights. Love, Amnesty International.”

“We’ve been standing up for human rights since 1961, we’d know.” the organisation continued.

The Law Institute of Victoria has furthermore endorsed the view that the direction to wear a face covering is not contrary to human rights.

In discussing the measures to respond to the spread of COVID-19, Jaclyn Symes MP, Minister for Regional Development announced in Parliament that: “if any rights are limited, those limitations are reasonable and demonstrably justified… The government is obliged to use all means necessary to protect the health and life of all persons in Victoria.”

As pointed out by the Law Institute of Victoria, the duty to protect the right to life includes an obligation to adopt any appropriate laws or other measures, to protect life from all reasonable and foreseeable threats.

In its statement the LIV confirmed it “supports the direction to wear a face covering, as a proportionate decision in line with current medical advice.”

The Victorian Equal Opportunity & Human Rights Commission has furthermore stated that the directive does not violate any international human rights instruments, noting the way in which rights compete with each other and are constrained accordingly, with the right to life ultimately triumphing over personal choice in this regard.

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