Explainer: Masks, COVID-19 and human rights

The Victorian Government is requiring people in Melbourne and the Mitchell Shire to wear a face covering or mask when leaving their home to help stop the spread of COVID-19. This explainer seeks to debunk claims that the requirement breaches people’s human rights.

This explainer focusses on the situation in Victoria in July 2020. Different considerations will apply in different Australian jurisdictions and at different times.

Where does the legal authority to require people to wear a face mask come from?

Under section 200 of the Public Health and Wellbeing Act 2008 (Vic), public health officials have powers in a state of emergency to make certain directions reasonably necessary to protect public health. The Deputy Public Health Commander has made the mask directions using these emergency powers. The mask directions are part of the broader Stay at Home Directions (Restricted Areas) (No 4) available here: https://www.dhhs.vic.gov.au/victorias-restriction-levels-covid-19

Is it a breach of human rights to require people to wear a face mask in public in Melbourne?

The short answer is no. Being required to wear a mask is a small limit on personal freedom which is completely justified in a pandemic with the current rates of community transmission Melbourne is experiencing.

Is there a human right not to wear a mask?

Victoria’s Charter of Human Rights & Responsibilities 2006 (Vic) protects a number of important human rights. The Charter rights were largely adapted from an international human rights treaty which Australia joined in 1980, called the International Covenant on Civil and Political Rights. The Charter requires government departments and public servants to give proper consideration to these human rights and act compatibly with human rights.

While there is no such thing as a human right not to wear a mask, the Charter does protect freedom of expression. Freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds. The forms of protected expression are broad and may include speech, writing, art and other mediums such as dress. Requiring someone to wear a mask potentially limits a person’s freedom of expression.

However, human rights under the Charter are not absolute. They can be subject to such reasonable limits as can be demonstrably justified in a free and democratic society, taking into account all relevant factors including:

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

The Charter also sets out specific circumstances in which restrictions may be placed on the right of freedom of expression. Restrictions may be lawfully imposed where they are reasonably necessary:

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

Restrictions to protect public health must be based on scientific evidence, be time-limited and be regularly reviewed. They must respect human dignity and the right to equality.

Applying this test, it is clear that temporary and tailored laws requiring people to wear a mask are justified, particularly considering:

• the serious risks to life and health posed by COVID-19;

• current rates of community transmission in Melbourne; and

• the medical evidence that masks will help to stop the spread of the virus (discussed below).

In short, requiring us to wear a mask outside of our homes is a small limit on our personal freedom for a very good reason – saving lives and protecting public health.

Protecting our right to life by requiring masks to be worn

It’s also important to remember that the Charter also protects the right to life. This means that the Victorian Government has obligations to take positive steps to protect life and health. By requiring people to wear masks in Melbourne, the Government is protecting our rights to life and health.

What about the right to equality and non-discrimination?

The Charter also protects the right to equality which, along with anti-discrimination laws, protects people from discrimination on the basis of certain attributes such as disability or race. In implementing the mask requirement, the government must act compatibly with the right to equality. For example, masks may make it harder for people with hearing loss to lip read and communicate. It is accordingly important that the mask requirement is properly tailored with sensible exceptions. These exceptions are discussed below.

Are masks effective in stopping COVID-19?

Medical experts from across the globe agree that masks help limit the spread of COVID-19, particularly in areas such as Melbourne where community transmission is taking place.

Australian infectious disease experts have backed the use of masks and the Australian Medical Association said in July that:

• “mask use in areas of community transmission was now essential, following on from the strong evidence around mask use that has been emerging.”

• "masks reduce virus spread when worn in areas where there is community transmission."

• “Masks add another layer of protection to the other significant measures of physical distancing, hand hygiene, and cough etiquette.”

The US Centers for Disease Control and Prevention said in July that:

• “cloth face coverings are a critical tool in the fight against COVID-19 that could reduce the spread of the disease, particularly when used universally within communities.”

•  “There is increasing evidence that cloth face coverings help prevent people who have COVID-19 from spreading the virus to others.”

The World Health Organisation has said in June that while there has been limited evidence on the effectiveness of non-medical fabric masks, “for areas of widespread transmission, with limited capacity for implementing control measures and especially in settings where physical distancing of at least 1 metre is not possible – such as on public transport, in shops or in other confined or crowded environments – WHO advises governments to encourage the general public to use non-medical fabric masks.”

What about the exceptions?

There are a number of exceptions under the rules which allow you not to wear a mask outside of your home in certain circumstances. These include:

• Where you have a relevant medical condition, such as a breathing problem or mental health condition

• While doing strenuous exercise, although a mask must still be carried and worn before and after exercising

• When eating, drinking or taking medication

• If you are under 12 years of age

• For health and safety reasons at work

• When communicating with someone who is deaf where seeing the mouth is essential for communication

• When travelling in a vehicle alone or with other members of your household

• During an emergency

These exceptions should continue to be reviewed and adjusted in line with the core principle that governments should use the least restrictive means to achieve the public health goal.

For example, this good article from the UK-based human rights organisation EachOther discusses some of the impacts of mask wearing on deaf people and ways to mitigate those impacts, including by using clear masks.

Fines, police discretion and free masks

Applying the principle of using the least restrictive means to achieve the public health purpose, police should take a sensible approach and issue warnings instead of fines where appropriate, and particularly in the early days as people adapt to the new rules.

It’s also good that the fine for not wearing a mask ($200) is not excessive. Police discretion and alternative options will be particularly important when dealing with children over 12 and people with low incomes who are not wearing masks.

The Victorian Government should also be providing free masks in hotspot areas and to people with low incomes. This article discusses the importance of providing free masks.

This explainer is not legal advice

The contents of this publication do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as legal advice. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.