The Mask Wars are one of the stranger offshoots of COVID-19, but I guess existential crises will produce the unexpected. And, judging by the delight with which its soldiers post their self-recorded victories over the authoratariat on Facebook, they’re not going to end any time soon.
Yesterday’s battleground was a Victorian outlet of Bunnings. Iconic, certainly, but not usually regarded as the birthplace of liberty. Anyway, a freedom warrior was on high alert as she arrived, proceeding to film her demands to be allowed in, against the objections of three (masked) members of Bunnings’ staff.
The practical problem was that our protagonist (I think I agree that we should be dropping the “Karen” thing, so let’s call her the neutral “Q”) wished to gain entry to Bunnings but did not wish to wear a mask, as mandated currently by Victorian law.
Q had three legal arguments which she had been workshopping with Wikipedia and her Facebook friends: the manager of Bunnings has no legal authority to make her wear a mask; the “1948 Charter of Human Rights”; and discrimination against her as a “living woman”.
It is true that the Victorian public health order which, since last Thursday, has made it an offence to not wear a face mask when outside one’s home in Melbourne, does not empower the staff of hardware retail stores to enforce the law. Q was absolutely right on this score.
Mind you, the Bunnings manager at no point suggested that she did think she’d been invested with police powers; the only thing she was keen for Q to understand was that she wouldn’t be allowed in if she wasn’t wearing a mask. We’ll come back to that.
The 1948 Universal Declaration of Human Rights (UDHR), presumably what Q was invoking as her legal authority for refusing to comply with the public health order, was made at the United Nations and signed up to by Australia. As is well known, it was a direct response to the horrors that unsuspecting shoppers had been experiencing at hardware stores between 1933-1945. It was either that or the Holocaust; sometimes it’s hard to keep track of these things.
Q obviously had a great point here; it would certainly be possible, among the 30 articles of the UDHR, to strangle the language sufficiently to extend its statement of human rights over an entitlement to not cover one’s face if one chooses not to. But to do so would require a deep misinterpretation of the UDHR.
More importantly, the UDHR is not and has never been part of the law of Australia. We never imported the UDHR into our law and it has no force here whatsoever.
Finally, there is the discrimination question. Q appeared not to be aware of the law of trespass, but Bunnings was on sure ground in refusing her entry. As occupier, it has free choice as to who it allows in and on what terms. Requiring the wearing of a mask, whether or not the same is required by law, is within its power.
That right is subject to anti-discrimination law, of course. Bunnings could not, for example, place a condition of heterosexuality on entry to its stores. Q’s reference to discrimination appeared to be a claim that Bunnings was engaging in sexual discrimination, given that she kept going on about being a “living woman” with the full rights of such a being.
True, it would be unlawful if Bunnings was allowing entry only to the blokes. It’s impossible to discern anything in the mask stipulation which is gendered, however. No joy for Q there either.
Where this leaves Q is on the footpath outside Bunnings, bereft of the flanges she needed to buy, but still fully in possession of her living woman rights.
The Bunnings staff will need therapy, but we should all thank God for the freedom warriors among us, preserving our non-existent rights in the cause of their grand delusions. So brave.