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Don't mask what is a human right, and what is not


The pandemic has revealed confusion about legally-defined human rights, and legal rights in general. Morry Bailes unpicks the arguments.

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A little knowledge is a dangerous thing.

Examples of aggrieved citizens asked to comply with such pandemic requirements as wear face masks, socially distance, and adhere to State borders, are turning to some rather tenuous legal reasoning to back their rule breaking.

Take the Victorian wannabe Bunnings customer, who cited discrimination against her as a woman to defend failing to comply with a requirement to don a face mask on entry to the store.

According to this legal wisdom, the UN Charter of Human Rights was breached by Bunnings staff by requiring a man or a woman to wear a face mask. It’s pretty tortured legal logic and I can’t sensibly connect the dots of the argument myself.

In another example of a border runner from Victoria to South Australia, his legal argument was a that he was a ‘sovereign citizen’ not subject to Australian law. The sovereign citizen argument is not new. It supposes that you may live in Australia, but owing to a claim by you that you enjoy individual sovereignty, you are not subject to the law of the land.

His Honour Justice Livesey, in a recent judgment of Rossiter v The Adelaide City Council, gave short shrift to the same argument, in circumstances where the appellant Mr Rossiter claimed because he was a ‘free spirit’ he was not liable to pay a parking fine, by describing it as ‘pseudolegal’ and ‘legal nonsense’.

Such utterances have been going on for sometime however, and not just in the current context. There has been for some years a growing trend by some commentators of seeking to elevate an asserted entitlement by erroneously cloaking it in an argument that it is human a right. A basic understanding of what is and what is not a human right is required.

There is no bill of rights or equivalent in Australia. Some states have introduced a states-based rights system, but in Australia our human rights are protected by the Australian Constitution, by the common law, and by some statutes that have enshrined rights – where the Constitution and the common law did not cover the field – including some laws regarding discrimination on the basis of sex or age, for instance.

We are of course party to the UN Universal Declaration of Human Rights, which deals with our inalienable and universal human rights that we ought to enjoy by just being human. The right to life, liberty and security. The right against torture and execution. The right to a fair trial, and so on. The type of right that you traditionally think of when someone mentions human rights.

Other human rights exist, but they are subject to limitations. Our freedom of expression now has limitations that in the US for instance don’t exist. We may argue on the periphery of these laws as to whether for example in the Racial Discrimination Act we have overly curtailed our freedom of expression, but our right to freedom of expression remains, limited now by law as it is.

What concerns me however, is an emerging confusion of what is asserted as a human right when it is plainly and demonstrably not. The right to a certain level of social welfare in Australia is most certainly not a human right. It is downright mischievous for some commentators to ‘mock up’ something that they would like to see happen as a human right. Is it an attempt to impress the Australian voters in public debate? It can be confusing and can be misleading. I have noticed it is also often by non-legal commentators, so it may just be ignorance.

There was an interesting argument at the time of recent amendments to the Marriage Act in Australia as to whether who you might marry was a human right. I saw it as a right conferred by statute. That seemed to be the view when the Howard government altered the Marriage Act. It was also the view of the Gillard government, presumably who you would not expect would have opposed same sex marriage as it did if it had thought it was a breach of a human right. Later, others saw it differently. And there is no harm in philosophising on reasonable points as to whether something might be considered a human right.

But I’m sorry Bunnings lady, enforcing a government regulation by requiring a customer to wear a face mask during a viral pandemic is most assuredly not a breach of some concocted human right. As with other spurious arguments asserting rights that don’t exist, it is very important to appreciate that whereas we definitely enjoy certain rights that are absolute, many rights are subject to evaluation and limitation.

As I recently wrote about border closures, there is a genuine constitutional argument about whether s92 of the Australian Constitution means borders can be closed. Likewise there also exists a right to move freely in one’s own country, conferred by the International Covenant on Civil and Political Rights to which Australia is a signatory.

All that said, our High Court has found that it is constitutional to prevent a person crossing a state border if the law is not directed at preventing the movement per se, but aimed at another proper purpose. Stopping the spread of viral disease, for instance.

Thus it must be appreciated that even if a right is conferred by the Australian Constitution, implied by common law, or bestowed by statue, it is often accompanied by limitations, and although legal commentators may differ in their interpretations around the limitations, nonetheless there are only a few rights that are absolute.

As for the ‘imagined’ human rights so favoured by commentators who seek social change, they are more often than not just that – imagined.

Whilst I am firmly of that view, it must be acknowledged that from the outset of the negotiations regarding human rights covenants in the 20th century, there were two schools of thought. On the one hand, a view that human rights should be contained to civil and political rights. On the other, the view that they should include social and economic rights. Also acknowledged is that our international human rights instruments are often expressed in aspirational rather than legal words. An example is the Universal Declaration of Human Rights itself.

So where does it leave us? Bad states still do bad things. There exist some pretty cynical examples of countries who sign international human rights agreements with no intention of compliance. Saudi Arabia ratifying the treaty against discrimination of women in 1977 is a good example. Yet states continue to try to drape themselves in a legitimacy of lawfulness. Perhaps it is for their domestic audiences or for the gullible. China, with an appalling record on human rights abuses, persists in a ludicrous pretence of upholding the rule of law.

So it is legitimate in our own country to debate the topic of human rights, but when everything seems to be a human right we have clearly gone too far, and some of our commentators have lost the plot. A serious discussion about our rights as citizens is always warranted, but let’s not fool ourselves. It is doubtful that the observation of human rights in pariah states is any better now – with our intricate web of international human rights laws – than before they existed, and developed countries have gone overboard in the other direction where everything seems to represent an infringement of human rights. Just look at the EU, stifled by its regulatory frameworks.

A balance is a genuine observance of our accepted human rights with which we as a nation comply, but with an understanding of the need for legitimate limitations, for our security and protection as a citizenry, welcomed and respected by the majority of Australians. As ever, our courts are there to guard against the excesses of executive government and to ensure the bona fide and constitutional nature of law, and in a democracy such as ours, any law may be tested for its legitimacy in our courts.

Meantime, there are restrictions, likely lawful restrictions, that we as a community will have to tolerate due to the current viral pandemic. And neither the invoking of the UN Charter of Human Rights or a claim to sovereign citizenry is going to change that.

And spare a thought for the unfortunate staff at Bunnings subjected to such nonsense. When we cite an infringement of human rights, let’s talk about the real thing.

Morry Bailes is senior business advisor to  Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia. 

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