The requirement to wear a face mask does not breach human rights
In recent days, we've heard a number of reports of people stating that the requirement to wear a face mask or covering in metropolitan Melbourne or Mitchell Shire is a breach of their human rights. However, this is a lawful directive that does not violate any rights set out under Victorian or international human rights law.
27 July 2020
Under the current emergency restrictions in Victoria, the requirement for residents to wear a face mask or covering when leaving the house for any of the four permitted reasons is a lawful directive that does not violate any rights set out under Victoria’s Charter of Human Rights and Responsibilities or any international human rights instruments.
The Victorian Charter requires public authorities – such as Victoria Police or the Department for Health and Human Services – to take proactive steps to safeguard rights, which includes the right to life. Directions given to wear a face covering, and to ensure compliance with this directive, are appropriate steps being taken to protect the health of all Victorians, and are in keeping with the human rights responsibilities of these organisations.
There are however some exceptions to this requirement – for example, if you have a relevant medical condition that affects your ability to wear a mask. This could include a medical condition that makes it difficult to breathe, a serious skin condition, or a disability or mental health condition.
There are also exceptions if you are communicating with a person with a hearing impairment, where they need to be able to see your mouth for communication; and if you are involved in strenuous exercise such as jogging, running or cycling.
Shops, businesses and workplaces are able to refuse entry to a person not wearing a mask in order to protect the health of their staff and other customers. There are only a few, limited exceptions to this:
- If you’re unable to wear a face mask or covering because of a disability, and you’re refused service in a shop because you’re not wearing a mask, this could be an example of disability discrimination. The Equal Opportunity Act makes is unlawful to discriminate against someone because of a disability – but you would need to be able to show the close link between your disability and your inability to wear a mask.
- Employers can lawfully direct employees to wear face coverings when at work. However, there are also exceptions to this requirement – for example, if an employee has a relevant medical condition, or if it would create a risk to the employee’s health and safety as determined through work health and safety guidelines. If the profession requires employees to enunciate clearly or to have their mouth visible, they may also be exempt for the requirement to wear a face mask or covering.
When deciding whether to issue a fine to someone not wearing a face mask or covering, Victoria Police must consider the human rights in Victoria’s Charter of Human Rights and Responsibilities. As a public authority, Victoria Police must act compatibly with the fundamental rights protected by the Charter.
If you are seeking more information about your rights, contact us.
You can also read or download our face masks FAQs.
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