The Public Health Act 2005 (Qld) (the Act) has been in force for over 15 years in Queensland. It gives broad powers to the government to take action to protect the health and safety of the public.
On 29 January 2020, under the Act, the Minister for Health and Minister for Ambulance Services made an order declaring a public health emergency in relation to the coronavirus disease (COVID-19). The public health emergency area specified in the order is for ‘all of Queensland’. Its duration has been extended by regulation to 27 September 2021 (and may be further extended).
The Act, in conjunction with the COVID-19 Emergency Response Act 2020 (Qld), gives the Queensland State Government the power to issue enforceable orders for limitations on gatherings, compulsory quarantine and compulsory self-isolation, in addition to other limitations as deemed necessary for the health and safety of the Queensland public.
On 8 August 2021, the Premier announced the Stage 1 easing of restrictions for Southeast Queensland following the 8 day lockdown for the region due to cases of COVID-19 in the community. As part of the easing of lockdown restrictions, high school students were required to wear face masks at school for a period of two weeks.
However, this restriction has continued to be in effect since 8 August 2021 in accordance with further public health directions of the Chief Health Officer (currently Restrictions for Impacted Areas (No. 15) (SEQ eased restrictions Stage 3) Direction due to end on 10 September 2021).
All businesses and organisations, including schools, are required to comply with the various public health directions made by the Chief Health Officer. A failure to comply with a direction, without a reasonable excuse, may result in a penalty (the maximum being a fine for $13,785 or 6 months imprisonment) according to section 362D of the Act.
There are, of course, several exemptions to the requirement for students to wear face masks at school (or anywhere else) and these are set out in the current health direction. Some of these exemptions apply to a person:
- who has a physical or mental health illness or condition, or disability, which makes wearing a face mask unsuitable;
- for whom wearing a face mask would create any other serious risk to that person’s life or health and safety, including if determined through work Occupational Health and Safety guidelines; or
- if it is not safe in all the circumstances.
Therefore, students do not need to wear face masks at school if they fall within the exemptions.
There is no requirement under public health directions for parents or students to have to provide a medical certificate or other documentation to prove that the student has an exception to the face mask requirements because of their medical condition or disability.
However, it is not unlawful under anti-discrimination laws for a school to request or require parents to provide information about their child/ren’s medical condition, provided that school can demonstrate that it is not in connection with, or for the purpose of, unlawfully discriminating against the student because of their disability or medical condition.
Discrimination – Anti-Discrimination Act 1991 (Qld)
Direct discrimination can occur where a student is treated differently because they are not wearing a mask or they cannot wear a mask because of a protected attribute, such as a disability or medical condition.
Indirect discrimination can occur when a person is required to comply with a general condition or requirement (such as mandatory mask-wearing), and they are unable to do so because of a protected attribute, such as a medical condition or disability, and this has the effect of disadvantaging them.
Section 124 of the Anti-Discrimination Act provides that a person (i.e. the School) must not ask another person (i.e. the student or parent), either orally or in writing, to supply information on which unlawful discrimination might be based. Where the school seeks further information regarding why a student is not wearing a mask (including evidence), the student/parent may respond by stating that this is unlawful discrimination.
However, in our view this is a misreading of the Act. Schools are requiring reasons/evidence of why a student is unable to wear a mask, in order to meet its obligations to provide a safe learning and environment to all persons. The information is not being sought for the purpose of discriminating against the student.
The legislation provides a helpful example of how section 124 applies, stating that “An employer would contravene the Actby asking applicants for all jobs whether they have any impairments, but may ask applicants for a job involving heavy lifting whether they have any physical condition that indicates they should not do that work.” Similarly, asking persons not wearing masks to provide a reason is not for the purpose of unlawfully discriminating against the person, but for the purpose of provide a safe workplace generally.
Additionally, the Anti-Discrimination Act states that a person or organisation may do an act that is reasonably necessary to protect the health and safety of people at a place of work, and they may do an act that is reasonably necessary to protect public health. Thus, a school’s decisions regarding the wearing of masks, and requests for information regarding same, are likely to be reasonably necessary to protect public health and reasonably necessary to protect the health and safety of all people at the school.
It should also be noted that a ‘political belief or activity’ is a protected attribute under the Anti-Discrimination Act. However, it is unlikely that this attribute would extend to a parent or individual’s view pertaining to the wearing of a mask or otherwise complying with directions issued by the Chief Health Officer. As such, if students do not have an exception but prefer not to wear a mask, treating the student differently or requiring the student to wear a mask when there are mask requirements in place is not unlawful discrimination.
Schools are required to comply with the various public health directions and should do all things necessary to ensure that students comply with the direction when on school campus. It is not likely to be discriminatory for schools to request parents provide information about their child/ren’s medical condition or disability for the purpose of the face mask requirements.
However, a school’s primary focus should always be the education of students. The school is ultimately not responsible for the overall enforcement or interpretation of public health directions. Parents who have any concerns regarding the scope of the public health directions on schools and students and have concerns whether their child should be exempted from the face mask requirement, should be directed to raise their concerns with the Chief Health Office and relevant authorities.
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