Mask on, mask off?

Due to the huge spike in COVID-19 cases over recent days, it has become mandatory for Victorians to wear a mask or face covering when leaving their homes. What may be unclear to some is what exactly the law surrounding these rules are, and whether the mask policy can be enforced within private premises. The following will discuss the rules currently in place in Victoria (at the time this blog is written), and the basis for enforcement of these rules in private premises.

What are the rules?

From 11:59pm on Wednesday 22 July 2020, residents of metropolitan Melbourne or the Mitchell Shire must wear a face covering when leaving their homes unless they have a lawful reason for not doing so.[1] The face covering must cover both the nose and mouth, and can be either a face mask or shield. Whilst wearing masks, residents must maintain social distancing requirements of 1.5 metres. [2] People who do not comply with these requirements can be fined $200.00.

Lawful excuses for not wearing a face covering

The following are the circumstances in which a face covering is not required:

Infant and children under 12 years;
A person who is affected by a relevant condition, such as problems with medical conditions, breathing, a serious condition to the face, a disability or a mental health condition;
Persons who are deaf or hard of hearing, where the ability to see the mouth is essential for communication;
If wearing a face mask would create a risk to the OH&S in relation to their work;
Persons whose professions require clear annunciation or visibility of their mouth, including teachers or live broadcasting;
Professional sportspeople when training or competing;
When individuals are doing exercise or physical activity where they are out of breath or puffing. They must carry a face covering, and wear it when they finish exercise;
When directed to remove the face covering to ascertain identity;
When consuming food, drink or medication; when undergoing dental treatment or other medical care; and
During emergencies. [3]

So, can this policy be enforced on private premises? Can entry be refused if the rules aren’t complied with?

Simply put, the law says that private landowners or occupiers can take reasonable steps to protect themselves, their employees and other persons on their private property.[4] It is therefore legal for businesses to make a condition of entry to their premises for patrons to wear a face covering, or sanitise their hands. [5]

Conditions of entry are governed by the Australian Consumer Law. When entering a premises, a patron accepts the conditions of entry and enters into a contract. Should the patron fail to comply with these conditions, they are in breach of the contract and in practice would likely be asked to leave the premises. Accordingly, if a business requires a patron to wear a mask as a condition of entry and they refuse, the business is entitled to ask the patron to leave or refuse them entry.

Entry conditions for private premises are nothing new and are something that we are all used to in different contexts. If you go to a nightclub (prior to COVID-19 of course), you are subject to dress codes. At the airport, you cannot board the plane without having your bag checked. At a worksite, you are required to wear hardhats and high-vis vests. The wearing of masks and sanitation of hands is just the same – a condition that must be complied with so that the staff and other patrons can be protected against community transmission of COVID-19.

Along with this, there are important occupational health and safety considerations that businesses are required to keep in mind. The International Covenant on Economic, Social and Cultural Rights details that employees have a right to “safe and healthy working conditions”.[6] Further, the United Nation’s 2011 Protect Respect and Remedy Framework emphasises the need for businesses to take adequate preventative measures to ensure the health and safety of workers.[7]

The mask wearing requirements extend to the use of face masks in the workplace, and WorkSafe and Emergency Management Victoria and Victoria Police have outlined that they will focus on at-risk workplaces, and aged care centres in a bid to prevent casual workers from moving between various locations for work. [8]

The bottom line is this. As uncomfortable and inconvenient as wearing a face covering might be, having COVID-19 would likely be much worse. Rules for the protection of public health and safety are not rules that are meant to be broken, they are rules that can help save lives and stop the spread. If you want to leave your house, you must comply with the rules that are in place not only for your own protection, but for the protection of others such as vulnerable people within the community. Rules like this may also be introduced in other jurisdictions which are experiencing a spike in COVID-19 cases, and accordingly we must all be vigilant and continue to keep an eye on the rules, and maintain social distancing and hygiene requirements.

[1] Victorian State Government Health and Human Services ‘Face coverings – Metropolitan Melbourne and Mitchell Shire’ Victorian State Government Health and Human Services (Webpage, 24 July 2020) < https://www.dhhs.vic.gov.au/face-coverings-covid-19> .

[2] Ibid.

[3] Ibid.

[4] Rick Sarre & Juliette McIntyre, ‘Can Australian businesses force customers to wear a mask? Here’s what the law says’, The Conversation (online, n.d.) < https://theconversation.com/can-australian-businesses-force-customers-to-wear-a-mask-heres-what-the-law-says-142641>.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Stephanie Palmer-Derrien, ‘Face masks mandated in Melbourne workplaces: What you need to know’ Smart Company (Webpage, 20 July 2020) < https://www.smartcompany.com.au/coronavirus/face-masks-mandated-melbourne-workplace/>.

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Mask on, mask off?