Recently there have been incidents of Australians being arrested by Victorian Police for not wearing a mask despite having a medical exemption. This highlights the hypocrisy of current legislation which provides loopholes for VicPol to arrest those who are not even breaking the law. This information is important to know for anyone with a medical exemption as they risk arrest and fines despite not breaking any laws.
According to the Victorian Equal Opportunities & Human Rights Commission (VEOHRC), “Treating someone badly for not wearing a mask due to a medical condition may amount to unlawful discrimination.” This is fair enough as many people have medical exemptions that would prevent them from wearing a mask and if they were to be discriminated against by shop owners and police then the burden of their medical condition would become much greater through no fault of their own.
When combined with the clear wording of the VEOHRC that “you do not need a medical certificate to prove you have a lawful reason for not wearing a face mask” this clarifies that there is a legal exemption for people with a medical condition from having to wear a mask and saves them from facing unfair discrimination as a result. This is supported by the Victorian Government website which states that “You do not need a medical certificate stating that you have a lawful reason for not wearing a face mask.” This makes sense as asking someone for their medical certificate is not merely only unreasonably rude but can also cause distress and embarrassment. Someone’s medical condition is a private matter that they may wish to keep to themselves and it is wholly inappropriate to force someone to reveal it. Being expected to disclose this information to every police officer you walk past is so clearly unreasonable that even the Victorian Government has recognised this in the law. Given this it is perfectly reasonable for someone with a medical exemption to want to keep that information to themselves and thankfully that right is backed by law.
The fact that it is perfectly legal to not wear a mask if you have a medical exemption may indicate that those with an exemption are likewise safe from harassment by VicPol. However, there remains a loophole that can be used to arrest and intimidate those not even breaking the draconian restrictions. The VEOHRC also includes the clarification that “Issuing a fine to someone who is lawfully excused from wearing a face mask would not be considered discrimination” seemingly contradicting its other statements about the matter.
So, to put it in plain terms:
You have a legal right to not wear a mask if you have a medical exemption.
You have a legal right to not have to provide a medical certificate if you have a medical exemption.
However, if the police issue you a fine anyway, this does not contradict your rights.
While this is patently absurd and can hopefully be disputed in court, this means that the police can still harass and fine you even if you are not breaking the law. The line “I can’t prove that you’re not lying about having a medical exception so I’d better fine you just in case” can be used here to circumvent your clear rights. This could potentially mean that those with a medical exemption may find themselves in practice having to endure the health affecting burden of wearing a mask at police request or having to provide proof of their medical exemption regardless of the breach of privacy just to ensure that police leave them alone.
It is technicalities such as this which allow VicPol to continue to make arrests and issue fines to people regardless of whether or not they have broken the law. While these fines may not hold up in court, this does little to protect Australians from police harassment at the time and make take years to resolve considering how overburdened our courts are with cases such as this.
During these troubling times it is important to know your rights, but also to be aware of the powers which VicPol hold. They have been given virtual carte blanche to act as they wish regardless of your rights, and it is important to remember this when dealing with police. Instead of pretending that we still have rights in this country we must face the reality of the situation and push for change to prevent this abuse of power.
To borrow a phrase from Andrew’s supporters: stay safe. Only it is VicPol and not the virus that you need to stay safe from.
To see Morgan C Jonas’ analysis of this issue, check out his video here: