ANTI-MASKERS’ DUBIOUS ‘LEGAL’ ARGUMENTS DEBUNKED
By Nic White for Daily Mail Australia
Groups opposing lockdowns, mask wearing, and police authority in general rely on a series of dubious arguments that are easily discredited:
Rules are ‘directives’ not ‘laws’
A common theme to infuriating exchanges with police is that the public health orders are invalid because Parliament never approved them.
They claim such ‘directives’ can only be enforced by ‘consent’ and thus can be ignored at will.
However, the Public Health and Wellbeing Act of 2008 does give state governments and their chief health officers power to impose restrictions.
Section 200 of the act explicitly states they can can restrict movement or ‘give any other direction that the authorised officer considers is reasonably necessary to protect public health’.
These powers kick in when a state of emergency is declared by the state government, which Premier Daniel Andrews did in Victoria on March 16.
Section 193 of the act allows for stay at home directions, which Deputy Chief Health Officer Finn Romanes enacted on July 22.
This directive also covers the wearing of face masks, as it states people can only leave their house while wearing one – exceptions notwithstanding.
Victoria also passed its own COVID-19 Omnibus (Emergency Measures) Act 2020 to strengthen these emergency powers.
State of emergency is invalid
Some conspiracy theorists claim the state of emergency shouldn’t have been imposed in the first place.
They quote what they believe to be the conditions that must be established, including that a deadly pathogen must be present around the country.
As they deny the seriousness of Covid-19, they declare there is ‘no deadly virus’ in Australia.
The 167 Australians who have died from coronavirus, and their families, would beg to differ.
Police don’t have authority to enforce orders
Many of the video feature coronavirus deniers refusing to answer police questions or give their details.
They make bizarre appeals to common law overriding state legislation, which are discussed at the end of this article.
Again, the Public Health and Wellbeing Act of 2008 comes into play as it empowers health officials to ask police for help enforcing directives.
Police officers can usually only ask for someone’s details if they are committing a crime or are reasonably believed to be about to be.
But the Act extends this to investigating, eliminating or reducing the risk to public health.
Police can also detain anyone deemed a ‘serious risk to public health’, so long as they are warned that refusal to comply would lead to their arrest.
‘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,’ Victorian Police said on July 26.
‘Police are working incredibly hard to keep the community safe and this type of behaviour is unacceptable and unnecessary.’
Police are violating human rights
Conspiracy theorists make frequent reference to the 1948 United Nations Universal Declaration of Human Rights.
This does not actually create any laws, it is just an undertaking to preserve and protect human rights around the world.
What rights citizens do have are in the Victorian Charter of Human Rights and Responsibilities Act.
This compels Parliament to balance any infringement on human rights, as laid down in the act, and produce a ‘statement of compatibility’.
This balancing act is known as ‘proportionality testing’ and weighs, in this case, forcing people to wear masks with the threat of illness and death.
Parliament took this into account when passing the Public Health and Wellbeing Act of 2008, and health officials have done the same this year.
Victorian Chief Health Officer Brett Sutton even explained on Tuesday that human rights laws enshrined the right to exercise during lockdown.
‘They are entitled to exercise within their home and their garden, ideally. People who have no garden and have no other option, have a right to exercise,’ he said.
‘The Victorian Charter of Human Rights and Responsibilities is pretty clear that if you aren’t giving people an option to exercise then you are effectively putting them in prison and that’s not something that can be done for a case of coronavirus or for anyone else for that matter.’
Mr Andrews has very little time for human rights arguments, pointing out that not dying of coronavirus is a rather important right.
‘Seriously, one more comment about human rights – honestly. It is about human life,’ he said.
‘If we continue with this stuff, standing in the car park of Bunnings reading whatever nonsense you have pulled up from some obscure website…’
Mr Andrews later apologised for losing his cool, but reiterated that police were doing what needed to be done.
‘[Police] are trying to be as fair as they possibly can be,’ he said, ‘but 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.’
Even Human Rights Law Centre executive director Hugh de Kretser isn’t giving the conspiracy theorists any cover.
‘Being required to wear a mask in public in Melbourne does not breach human rights,’ he said.
‘It’s a very small limit on personal freedom for a very good reason; saving lives and protecting public health. There are sensible exceptions set out in the rules.
‘Those who claim their rights are being breached are wrong.’
Businesses are discriminating by requiring masks before entry
Some anti-maskers have accused businesses of being in breach of anti-discrimination laws by refusing them entry.
The problem with this argument is that all the other regulations around mask wearing aren’t even relevant because businesses have the right refuse entry at their discretion.
Rick Sarre, the Adjunct Professor of Law and Criminal Justice at the University of South Australia, says Australian businesses have the right to require customers to wear face masks.
‘Australian law, quite simply, says that private landowners or occupiers can take reasonable steps to protect themselves, their employees and people on their property,’ he wrote in The Conversation.
‘So it would be legal for businesses – including cafes and supermarkets – to make it a condition of entry that customers wear a mask and sanitise their hands.’
Ms Nash claims she has a medical exemption to wearing a mask, which she never specified.
If she had produced proof of this, the whole situation could have been avoided.
Why these people are dangerous
Associate Professor Luke Beck Monash University’s law faculty said the group appeared to be an offshoot of the sovereign citizen movement.
‘These people make these kinds of pseudo-legal arguments, usually to try and get out of parking fines or paying council rates or things like that,’ he told SBS.
‘Some of these people think if you utter particular words or emphasise particular ‘facts’, it will somehow get you out of things.’
This is problematic for functioning society at the best of times, but University of Melbourne law Associate Professor Jonathan Liberman said it was downright dangerous during a pandemic.
‘These people are trying to encourage others to do things that put people’s health at risk and that will ultimately lead to these restrictions being in place for a lot longer,’ he said.
‘They are also promoting a rejection of the rule of law and a rejection of a harmonious society.’
- https://www.dailymail.co.uk/news/article-8579387/Coronavirus-conspiracy-theorist-Eve-Black-outed-topless-waitress-raunchy-stripper.html?ITO=applenews
- Images from “Kingdom of Australia” meeting on the forecourt of the Shrine of Remembrance 31 July 2020: https://www.theaustralian.com.au/news/latest-news/coronavirus-victoria-antimask-protesters-gathering-in-melbourne/news-story/56edf226ad4ef57114b42cd3256fb5f3
- https://www.sbs.com.au/news/the-pseudo-legal-arguments-used-by-melbourne-anti-maskers-and-why-they-are-so-dangerous