Unmasking the truth: An investigation into some of the legal claims by COVID-19 sceptics

It must be hard to be a Victorian at the moment. With a second wave gripping the State and no sign of the COVID-19 virus abating, many Victorians are once again confined to their homes except for essential activities, not knowing how long they’ll have to live like this. Some are clearly taking this regrettable situation harder than others, and have decided they’re no longer going to let some so-called virus dictate their lives. They are asserting their rights, reclaiming their liberty, proudly defying health advice and, quite often, filming themselves as they do it. 

The Law Society is usually first in line to challenge greater incursions on people’s freedoms by the State, and we encourage the public to interrogate Governments whenever they move to further control our movements or intrude on our privacy.  However, there is an alarming trend of conspiracy theorists spouting bogus, quasi-legal gobbledygook to justify their irresponsible actions. 

Let’s take a look at some of the conspiracy theories doing the rounds.

Forcing me to wear a mask violates my human rights.

Many will have seen the video of the woman arguing with Bunnings staff members who have patiently asked her to wear her mask, as per the Victorian Government’s emergency directive. The woman refuses, crying discrimination and claiming it is a violation of the “1948 Charter of Human Rights” to be ordered to wear a mask. Presumably the woman was referring to the Universal Declaration of Human Rights, proclaimed by the UN in 1948. 

Victoria also has its own Charter of Human Rights, which sets out the basic rights, freedoms and responsibilities of Victorians. The enactment of laws and the conduct of State authorities must be compatible with these rights. So is a direction to wear a face covering a contravention of international or State human rights instruments? The short answer is no.

Victoria’s human rights charter provides for limits on certain rights if necessary and reasonable to impose those limits. Like all states, Victoria has legislation which enables the State to make lawful directives when a state of emergency is declared. These emergency laws essentially give the government to make directives they usually wouldn’t be able to make in normal circumstances, in order to protect the community. 

However, there are some exceptions to the order to wear a mask, such as if you have a serious skin or respiratory condition, a disability or mental health condition. For everyone else in the Melbourne metropolitan area and Mitchell Shire (and as of 11.59pm 2 August, the rest of Victoria), there is a legal (and, arguably a moral) obligation to wear a mask in public.

You cannot legally refuse to take my cash.

Another viral video, again taking place in Bunnings, features a woman filming herself proudly voicing her intention to pay for her items in cash, despite the hardware store requesting contactless card payments only. Her reasoning? The COVID-19 “pandemic” is actually a ruse to usher in a cashless society.

Notwithstanding the fact that the use of cash in our society has been rapidly diminishing well before the pandemic, the decision of businesses to only accept card payments is not part of a sinister plot. As a matter of fact, businesses are well within their rights to refuse to accept cash. According to the Reserve Bank of Australia, businesses have the right to set their own payment terms. 

In a random survey of 470 businesses conducted by the Reserve Bank over January and February this year, only three businesses did not accept cash, while eight did not accept card.  It appears that in normal circumstances, most businesses are happy to accept legal tender in any form, and the decision by many to only accept cashless payments during COVID-19 has been made primarily for safety reasons. 

Interestingly, the RBA’s Consumer Payments Survey, conducted pre COVID-19, revealed that in-person cash payments made up 19% of the total value of payments in 2019, down from 30% in 2016.

The next question is, why does Bunnings seem to be the epicenter for these sovereign citizen protests? Perhaps because the ability to do home fix-up jobs is the only saving grace for many people who would otherwise go stir-crazy in quarantine, the sheer volume of people heading to Bunnings naturally increases the likelihood of “free thinkers” walking among the aisles.  

You have no right to stop me crossing the border

This is actually more of a difficult one. With different states implementing different border control measures, there have been questions raised over the constitutionality of denying cross-border access. 

S 92 of the Australian Constitution states: “On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.”

The High Court has on more than one occasion examined the meaning of this section. Without suggesting for a moment that complex High Court judgments by the most eminent legal minds can be surmised in a sentence, the basic gist of the judgments is that while movement across borders should not be impeded, border restrictions can be lawfully imposed if they if the public interest in doing so is compelling enough and the nature of the restrictions are proportionate in response to the public interest. 

S 92 has never been tested in the context of a pandemic, and so the question of the constitutional validity of border restrictions remains unresolved, although it appears that the majority of constitutional experts who have publicly weighed in agree that there are lawful exceptions to the free movement rule, and that the current public health crisis is probably one such reasonable exception.

Thus, the woman who, reading from pre-prepared script, asked the police at a border checkpoint whether she had disrupted the peace or committed a crime, and received a polite “no” in response, was likely to have broken the law when she subsequently drove across the border. The woman has reportedly since been arrested.

It might be tempting to dismiss these incidents as the rantings of a few fringe conspiracy theorists, but the truth is that the wilful adoption of misinformation is alarmingly common. A video claiming anti-malaria drug hydroxychloroquine could cure COVID-19, was viewed over 17 million times on Facebook before the social media company took the video down under its Covid misinformation policy. The World Health Organisation recently said there was “currently no proof that hydroxychloroquine or any other drug can cure or prevent COVID-19."

So what is the overriding message here? Don’t rely on unsubstantiated information. Be open-minded and diligent in your research. Seek expert advice. Scrutinise the evidence. Investigate the veracity of the claims made on that Facebook group. And if in doubt, see a lawyer.