Premier’s promised mask laws to fall short amid threat of legal challenge, internal revolt

Under Victorian law, police currently have the power to direct people to remove face masks if they are within a “designated area” – a geographical area formally controlled by police for the purpose of authorizing further searches.

If a protester refuses to comply, police may direct him or her to leave. It is a crime not to follow the instructions.

Under the proposed new laws, police will no longer need to designate an area to request the removal of face masks, but will instead have to comply with the reasonable suspicion provision.

The government’s attempt to strike a balance between legal concerns and its promise to crack down on extreme behavior at public demonstrations will be cautiously welcomed by libertarian and legal advocates, but will disappoint Jewish community organizations.

It is also likely to spark heated debate at the cabinet table on Tuesday.

Opposition police spokesman David Southwick said the proposed changes were too little, too late and would disappoint people waiting for strong action from the government.

“This will just give more protection to people who want to break the law,” he said.

The Opposition has promised that the Coalition government will ban face masks and restore police powers to take action to help deal with violent and disruptive protests.

Allan’s government will make a separate pledge to ban public displays of symbols of banned terror groups such as Hezbollah and Hamas, as well as the use of glue, ropes, chains, locks and other attachment devices used by protesters to resist police.

The legislation would include provisions that would limit protests outside synagogues, mosques and other places of worship, but would not impose a blanket ban. There was general agreement that an outright ban would have unintended consequences, including for victims of child sexual abuse who had previously protested outside churches.

When the changes to the law were first promised by the government, Police Minister Anthony Carbines said balaclavas were for Mount Buller, not Melbourne’s streets.

“If you stand for something you can’t hide behind a mask here in Victoria,” he said.

Following clashes with police at the Army’s arms fair in 2024, then-superintendent Shane Patton said demonstrators intended to cause violence.

“They were standing there wearing ski masks, full-face ski masks. There was no snow there,” he said. “They wore these for one reason: [capsicum] “When they come with the intention of provoking or attacking, they spray.”

The legislation was drafted after extensive consultations with human rights advocates and Jewish, Islamic and other community groups.

The Human Rights Law Center expressed concerns about the legal validity of the face mask ban, arguing that it would criminalize people who wear masks for health or cultural reasons, to protect their privacy, or as a form of political communication or art.

Sarah Schwartz, the centre’s legal director, said on Monday that the Supreme Court had confirmed that laws restricting peaceful protests must be justified and proportionate.

“A complete ban on face coverings at protests would not only be a clear overreach, but would also likely violate the freedom of political communication implied by the constitution,” he said. “A proposed mask ban would discourage participation in peaceful protests, especially among racialized communities, religious minorities, and people with disabilities.”

Schwartz, who is also chief executive of the pro-Palestinian Jewish Council of Australia, said if the government was serious about tackling extremist behavior it should not impede people’s right to peacefully protest.

The center also opposed bans on the use of docking devices, the display of terrorist symbols and protests outside places of worship.

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