Your legal rights in the days of COVID-19, and does it really even matter?

If you live in Australia, you’ve probably seen recent media coverage of various people filming themselves and/or others while trying to exert their purported ‘rights’ to do or not to do certain things in relation to managing the outbreak of COVID-19. (Actually, it probably doesn’t matter where you live in the world—no doubt there’s a small number of people everywhere doing a similar thing). No, I don’t have to wear a mask, no, I don’t have to tell you where I’ve been, blah blah blah.

It’s had me seeing red. Really pissed off and angry red. Especially when you read in the next news article about the number of people dying, or a newborn baby being diagnosed with COVID-19.

It makes me really angry that a small minority of people can be so selfish and continue to put their own ill-informed opinions and often bizarre beliefs ahead of the health and safety of the rest of the community, and sometimes seek out fame and notoriety in doing so. Or do really important things like: drive 100 kilometres across Melbourne to buy takeaway curry from a particular restaurant, or have a dance party for 150 people, or sneak into another state from a banned location hiding in a boot, or refuse to wear a mask and make a song and dance about it claiming it violates their rights and freedoms.

But the thing that really gets up my goat even more than this is people falsely claiming that the law is on their side and trying to convince others of this in a totally inaccurate and ignorant way. I’m the sort of person that wants to delve into the detail of a matter and uncover the facts—and in this case the specific legislation—that would prove them wrong.

I haven’t had a lot of luck in finding any articles which set out how the laws work in Australia and what role our ”human rights’ play in this whole mess. So, being a bit of a stickler for verifiable sources of information and in the interests of community education, I’ve put together some facts about what the law actually says in Australia about the restrictions and regulations in place at the moment to manage the pandemic here. People in other countries—you’ll have to do your own research but I’m guessing if you live in a democratic society, it’s pretty similar.

What’s the legal basis for the current rules and regulations?

Do the police and other authorities have the right to compel you to behave in certain ways in this pandemic?

Yes, indeed they do, in many wide-ranging ways. In Australia it’s a combination of Commonwealth (Australian) government legislation (laws) as well as state and territory legislation—which is largely responsible for health matters—that allows this.

The Commonwealth powers come under the Biosecurity Act 2015. On 18 March 2020 in response to the COVID-19 outbreak in Australia, the Governor-General declared that a human biosecurity emergency exists. The declaration gives the Minister for Health (that’s Greg Hunt) expansive powers to issue directions and set requirements in order to combat the outbreak. This is the first time these powers under the Biosecurity Act have been used in Australia.

The Health Minister’s power under this act are expansive. They allow him to:

• regulate or restrict the movement of persons, goods, or conveyances (that’s what allowing the banning of international travel and compelling quarantine at the moment)
• require that places be evacuated
• make directions to close premises.

There are some limits to his power and other measures can only be authorised under a human biosecurity control order, made by the Commonwealth Chief Medical Officer or a biosecurity officer in relation to a person who may have a listed human disease (including COVID-19).

The act also recognises its limits on interfering with states and territories, who are largely responsible for health matters, so the two levels of government are working together in Australia.

During a public health emergency, as we’re in now, once a state or territory has declared a state of emergency, they have the legislative (legal) authority to give directions as required and apply penalties. This authority is passed onto members of the police force and other public officials.

For example, in Victoria, our worst affected state at the moment, The Public Health and Wellbeing ACT 2008 authorises Victoria’s Deputy Chief Health Officer the power to issue public health orders, and he did that here. Each state would have its own health act, which has been passed through both houses of parliament, that authorises someone to make rules in the case of emergencies. That allows necessary decisions to be made quickly in response to a fast-changing environment.

This week, big Clive Palmer is challenging that Western Australia’s decision to close their border for health reasons in the High Court claiming that it doesn’t have the constitutional authority to do so, so it will be interesting to watch what happens there and the dissection of the laws that take place. But until and unless that happens, the word is that yes indeed you do have to do what officials such as police and defence personnel are telling you – or suffer the consequences.

More info for those who love details

If you want to know more about how Australia is managing COVID-19, the Australian Government’s Health Department has information about who’s doing what.

If you want to know more about how the biosecurity legislation works in Australia in relation to COVID-19, there’s a really good explainer here.

Do businesses have the right to refuse entry?

Yep, they do. On private property, store owners have a legal obligation to keep their premises safe for staff and visitors. To do so, they’re entitled to set reasonable conditions of entry, especially if that protects the health and safety of their staff or customers. For example, you can’t wear sandals on a building worksite, you can’t wear a helmet into a bank, and you can’t wear certain clothes into clubs or restaurants.  We’re subject to all sorts of regulations in all sorts of ways, because that usually makes safer and more pleasant for all of us. Often the regulations came back to Health and Safety laws.

Declaration of Human Rights

“Karen from Bunnings” as she’s now known (with sincere apologies to all those sensible, decent community members out there who just happened to be called Karen and are being caught up in this name-calling, mud-slinging mess) claimed loudly it was her human right under the 1948 Declaration of Human Rights as a ‘living woman’ (not even sure what that means, but her words) to not have to wear a mask when she loops around Bunnings looking for nuts or bolts, or maybe rocks up just to antagonise the staff and police.

And what do you know? She’s dead set wrong. The Universal Declaration of Human Rights does not provide anyone with the right not to wear a mask. Surprise, surprise, it doesn’t mention clothing at all! But it does describe the right of community members to health and safety, which is what is being jeopardised by idiots like this.

But let’s look at where these ‘human rights’ come from.

The President of the Australian Human Rights Commission, Emeritus Professor Rosalind Croucher,  explained in an article this week that:

The Universal Declaration of Human Rights was adopted in 1948, as a consequence of the atrocities of World War II. This was followed two decades later by two other major components of what is known as the International Bill of Rights—comprising the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

The declaration is an aspirational document comprising 30 articles which set out a number of individual rights. These aren’t legally binding in themselves but may be in some cases be supported by other legal instruments or legislation.

Professor Croucher noted that while Australia was a founding signatory to these three legal instruments, little has been done to enact the rights and freedoms they describe into Australian law. So, even if they did mention mask-wearing or being denied entry into a shop, there’s no actual law to rely on for Bunnings Karen and they’re not enforceable in our justice system.

Importantly, the rights of one person are always balanced against the rights of another person. Professor Croucher goes on to explain that “even if there were direct laws about rights, it doesn’t mean that everything is a right; nor does it mean that rights are unqualified. And all human rights come with the corresponding responsibility to respect the rights of others.”

Have you ever heard the expression “Your right to swing your fist ends at the point my nose begins.”. You don’t just get to do whatever you want when that impacts negatively on others.

She also says that “… wearing a mask as a public health measure is a legitimate requirement when framed in that context. It is a minimal intrusion on our rights and freedoms. In fact, wearing a mask is the very thing that will protect our rights and freedoms – especially our rights to life and health, and to avoid another widespread lockdown that restricts our movements and activities even further.”

And just to be clear. I’m not including those who legitimately find mask wearing difficult or impossible for medical reasons. I’m talking about those making complete dicks of themselves by trying to whip up a media storm by their actions and trying to misinform others.

But even if it wasn’t the law …

But here’s the thing. Let’s put the legislation and human rights aside for a sec. Even if the laws didn’t exist (they do) and the Declaration of Human Rights covered the right to go maskless (it doesn’t), it shouldn’t matter. Why on earth would we insist on doing things that we know are endangering others, and possibly killing them, just because we can or think we should be able to? That’s just selfishness and narcissism at its finest.

Sure, it’s an inconvenience to wear a mask for a while in you’re out and about. It might be a bit uncomfortable and fog up your glasses, but it’s not as uncomfortable as having a tube stuck down your throat to allow you to breathe. Yes, it’s a pain not being able to visit family or friends in other places at the moment with current restrictions but it’s worse if they die and you never get to see them again.

Let the crazies of this world know it’s not just about them and their sometimes-imaginary human rights. It’s about common sense and common decency. We’re trying to prevent a European-style lock down here at the moment and we’re trying to save lives. The thing that’s causing the breakouts and the grief at the moment is largely people’s unwillingness to stay home when they should and play by the rules.

Get a grip Bunning Karens and Eve Blacks of the world, and get to know what the rules actually are.