So what are you rights when asked to wear a COVID-19 mask?
As Australia joins the ranks of the face mask-wearing world in response to COVID-19, some people have raised the issue of when, or even if, we can be compelled to wear a face mask. Here is a look at the laws around face mask-wearing.
Many, often angry, readers point out that WeekendNotes is a place that provides information on what they can do on the weekend and that articles about COVID-19, face masks somehow don't fit into this. Yes, WeekendNotes is not a news site, but as a writer for WeekendNotes, I have a moral obligation to talk about things that keep readers safe when doing things on the weekends.
I will point out safety issues on a hike, list public transportation options for an event where people might be drinking, and have even written articles pointing swimmers to safer beaches. For some reason, COVID-19 articles tend to make people upset and the others don't.
In this article, I am focusing on the issues around the rights of governments to impose face masks rules, the rules for businesses imposing face mask rules, and your legal obligations around wearing face masks, as well as the human rights issues around this which have been raised by various angry people refusing to wear face masks. If you don't want to read this, don't, but it turns out going out on the weekend now can be a human rights and constitutional law issue. Such is life in 2020.
This article should not be used in replacement of legal advice. The legal issues here are complicated, and many have not been tested in a court of law. You should use this article as a general guide, but if you want to implement or oppose face mask laws, and have specific legal questions, you should contact a legal professional.
The requirement to wear a mask
Every state in Australia has passed similar laws which essentially empower the states Health Officer to issue directives, which have to be listed on their website, for the safety of individuals and the community. At the time of writing this article, only Victoria has made face mask wearing a requirement of going out in public in some parts of the state.
Other reasons to wear a mask
Even when we have not been compelled to wear a face mask, other legal principles come into play. The main one being that it is generally illegal in Australia to pass on a disease to others. Given that Coronavirus can kill or cause long term health effects on some of the people who get it, the legal penalties would be appropriately severe if you had Coronavirus symptoms and exposed others to the disease.
There is also a legal obligation to work in a safe manner. This means, if you are at work, your company can compel you to wear a face mask for your own protection. Failure to do so could mean that you can be stood down. It is like wearing work boots and a hard hat on a construction site. The failure to implement these standards could leave a company liable of people becoming infected at work.
The suggestion to wear a mask
One of the most common misunderstandings is that, while many regions of Australia do not require people to wear face masks, the advice is that face masks are recommended where social distancing is not an option, for example, on crowded public transportation. Remember, this is a suggestion and not a requirement. You will not be fined if you don't wear a face mask.
Any private business can set requirements to access their premises or services, as long as these don't break anti-discrimination laws. For example, bars have long had a dress code, and wearing a face mask can be seen as merely an extension of this.
Shops can require that you wear a face mask without any government restrictions (image courtesy of Gilbert Mercier @ flickr)
However, setting and enforcing government rules, versus your own rules can be more complicated. A lot of businesses have their own plan to meet COVID-19 restrictions, especially restaurants and gyms. It is recommended that businesses setting up any rules that might exceed government legal requirements display the rules prominently outside the of the premises. The business also needs to be careful not to provide service or make a transaction prior to attempting to apply a restriction.
For example, Apple stores around the country have been restricting the number of people entering the store at any time and requiring people to wear face masks on entering the store. It makes sense that, as a private store, they can do this. But if you are returning an item under warranty, and they impose a new condition, such as wearing a mask, they are in violation of their warranty obligations. Mind you, I am sure Apple's lawyers are both well paid and very good at what they do, so it can be much easy to don a mask that they provide than turn it into a legal battle.
This is much more difficult to address. As they are not a private institution, the legal ramifications of imposing restrictions on people trying to access government services are much more complicated.
The Australian public service takes great steps in incorporating human rights in the way they provide service and in some states, this is an obligation. Which means if they refuse to provide you with service because you refuse to wear a face mask, and there are no government laws in place compelling you to wear a face mask, they could be ruled in violation of your human rights.
However, they also have a human rights obligation to protect other members of the public and their own staff from exposure to Coronavirus. It would mean that it is hard to argue that your rights have been violated based on them asking you to put on a mask. Especially as the government often has multiple ways to access their services.
Is it legal?
The government's of Australia have 2 relevant laws that allow them to impose restrictions. These are the Emergency Powers and the Public Health powers. They operate separately but can be used in conjunction with each other. The main power being used at the moment in Australia are the Public Health powers.
It can be very surprising to most people living in a democracy, the ability of the government to impose very severe rules and restrictions. However, the right to impose these can only be done so under specific circumstances and can be challenged in court.
Some lawyers have raised the possibility that some of the restrictions could be challenged under constitutional grounds, but at the same time, they have pointed out that such challenges are unlikely to succeed. In other words, if the government has a good reason to impose these restrictions for the purpose of protecting the community, they are able to do so.
One of the things about face masks is that it is a minor imposition compared with restrictions on social gatherings, protests, businesses operating, border crossings and the right to travel around the country or leave the country. That is to say, courts are unlikely to uphold a challenge to face mask-wearing rules.
What about human rights?
A lot of the people around the world opposed to mask-wearing state (or more like shout) that being forced to wear a mask is a human rights violation. However, they are rarely specific on exactly which aspect of human rights is being violated. So we will have to examine this in more depths.
Australia doesn't have a bill of rights, but Victoria and the ACT do, and Queensland requires that the public service act in a way that protects people's human rights. Every state and the Commonwealth have a human rights commissioner who oversees the implementation of anti-discrimination laws as well as looks into general violation of rights. In fact, the Queensland Human Rights Commissioner is looking into whether the application of COVID-19 fines by police has constituted a human rights violation.
If you believe that the requirement to wear masks is a human rights violation, then your first point of call is your state's human right commissioner. They can examine this matter and make a ruling. If you disagree with this ruling, you can then take the matter to court.
However, the question is, how is the requirement to wear a mask a human rights violation and how is that reflected by the law? Wearing a mask is a small imposition, that can be met simply as wrapping a tea towel, scarf or pillowcase around your face. This minor requirement is easily met. You can even write "Wearing face masks is a government plot" on your face mask if you want.
You would have to think hard to come up with situations where wearing face masks would actually impact on people's rights. Some examples include, a person who doesn't have a face mask cannot enter a store to buy a face mask. What about a person who needs to buy food for their family from the supermarket, and has just enough money for food, but can't afford to buy a face mask, and has nothing at home that they can wrap around their face. A person who has no money and lacks possessions, might not be able to get a face mask, and can't access social services without one.
Face mask restrictions might catch out a small number of people, and the government needs to be very careful in terms of how they address these issues. This is not the same as someone simply refusing to wear a face mask, no matter how earnest their beliefs are.
Your legal obligations
It is one thing to talk about your rights, and another to think about your legal obligations. For example, you have a right to your opinion, and you have the right to express your opinion, but you also have the obligation to express this opinion that doesn't make wild accusations, presents false or uninformed points of view, or promotes illegal actions, with the obligation specifically being, that you have taken reasonable care and effort to achieve this standard.
You also have a legal obligation to not engage in behaviours that will harm others or violate their human rights. Given that there is well-documented evidence on the virulence, mortality and other health consequences of COVID-19, wearing face masks in public when required by law is a legal obligation that assists in reducing harm to others that have been identified by healthcare professionals.
In regions of Australia where face masks are not required, you don't have any general obligation to do so, unless you are could be at risk of transmitting the disease to others. Should a business require that you wear a face mask when entering their private space, then you are obligated to follow their rules or take your service elsewhere. You are free to post a 1-star Yelp! review complaining about the rules.
Businesses are, of course, obligated to inform customers of their rules and ensure that they do so in a timely manner. That is before they engage in any transactions. They are also obligated to protect their staff and other customers.
So why are some people refusing to wear face masks
The core arguments tend to be a combination of the idea that COVID-19 is not that deadly, and they are generally opposed to government restrictions. Some people will say that the numbers of deaths are made up, or that the number of deaths in Australia is very small. But if we had the same number of deaths in Australia as they have had in the US, we would have had over 12,000 dead, and of course, many more people with long-term health effects.
Some of the issues are anger over the economic impacts of restrictions. This is the view that we would have all been better off just letting the virus run its course and keeping the economy open. The complexity of such economic and social arguments aside, surely wearing face masks would help keep the economy open. If you are angry over closures, wear a face mask and write on it "Open Up The Economy Already".
Other arguments are about the idea that supposedly some people are profiting. That is, the face mask manufacturers have conspired with healthcare professionals to somehow make a huge profit on face masks, while the rest of the economy tanks.
Mostly the main opposition is about their belief that the government can't impose rules on them. Though it seems to come down to this logic. COVID-19 is BS, and so rules about face masks are BS, and refusing to wear one and writing angry comments at the bottom of this article is their way to oppose something that they don't believe in. However, in the constitution, it turns out that the government can impose rules based on advice from health professionals on the grounds that the governments in Australia are required to use emergency powers more on scientific advice rather than random angry Youtube bloggers.
At the end of any legal discussion, some people will have one point of view or the other, and perhaps they will be confused that the article doesn't end up presenting a single clear idea. Well, this is why good lawyers make a lot more money than most of us. That is to say, the law is confusing and has lots of deliberate ambiguities for the purpose of creating flexibility to meet extraordinary times.
Governments have used the powers that they have been given under their constitution to enact restrictions for the public good. If you believe that face masks rules or even suggesting the benefits of wearing a face mask is a violation of human rights, lodge a complaint with your state's human rights commission. Otherwise, surgical masks cost $2 each retail.
A very detailed and balanced article. Thank you. I still find it amazing with all the knowledge and actual people we know who have had contact with this dreadful virus, that people will refuse such a simple life saving measure as wearing a mask. Will they feel the same if they or their loved ones get sick or die.
A wonderful article. Those who oppose the wearing of masks should remember that we naturally put our seat belt on when driving, or smoking inside is illegal. It is caring for human life, yours or others, that should take precedence over the simple imposition of wearing a face mask. At this stage it should be a short term measure however if you choose not to wear a mask this may well drag on well into the future. Please, for the sake of us who do not want to suffer this dreadful virus, just wear one.
This was mostly a good article but it fell down a bit towards the end when characterising opposition to masks as being due to contrariness. There are other reasons. One friend told me her mother won't wear a mask as it triggers her claustrophobia. They also make it harder for people with respiratory problems, e.g. asthmatics, to breathe.
Excellent article, Roy. I was once one of the readers who objected to articles that weren't about things to do on weekends, but I've come to my senses now!
My husband K. has severe COPD and hasn't been out of the house for months except to essential medical appointments. I asked our GP if he could provide a letter of exemption to K, and he said he has had many requests for exemption letters but K is the only genuine case. So he has the letter and will carry it with him any time he leaves the house, like today when he had an osteopath appointment. He sat in the car until he was called, took his own towels into the clinic, presented his exemption letter, and all was well.
Thank you for taking the time to comprehensively cover this issue. Your explanations were clear,concise and without prejudice. Your apparent familiarisation on the topic prior to submitting this article is much appreciated. Well done RC. Stay safe and sane. Hava gorgeous day. Cheers Jj
I have no comprehension why should some people object to such minimalist request to done a mask at this critical stage.
I think mandatory mask wearing should have no exception, to activities and ages.
Babies, children all manage to wear them, in a lot of oversea countries, if required. Joggers/runners and cyclists should not be allowed to engage in their activities, if they can't wear masks ( I run & cycle & I think it's putrid how much droplets and moisture my mask has, following my activities, and I hardly ever sweat!!). We are so lucky that Exercise is considered as Essential, in this country. Many oversea countries Lockdown means no walking, jogging, running, personal trainer nor any other activities outside the house!! Be thankful...
One of the obligations I failed to examine in detail, is the obligation for businesses and government services to provide service in a non-discriminatory manner. There are people out there with valid reasons to not wear a mask. This could be physical, such as respiratory issues or more likely, psychological, such as having panic attacks from wearing a mask.
In these circumstances, not allowing that person to access your business is a serious case of discrimination. Especially as everyone else in the business is wearing a mask, so they are well protected from that individual.
A business might ask a non-mask wearing person to wait until other non-mask wearing people have left. The business could also offer to provide the service in a different way, such as bringing items out to the front of the store for the person.
Remember, there are a wide range of masks, so that there is an obligation on the part of the person to try and find one that they are more comfortable with. This might include something such as a loosely wrapped bandana or other such oversized, less restrictive mask.
It is recommended that anyone with such physical or psychological issue that makes it difficult for them to wear masks, should consult a medical professional for advice and should consider carrying a letter or other proof of the issue.