Refusing entry and service to someone not wearing a face mask

By Ryan Attard, Law Clerk, and Alicia Hill, Principal

With face coverings (e.g. face masks) now mandatory throughout Victoria and other states now encouraging mask use, there is increased pressure on businesses as to whether they are allowed to, or whether they have to, serve customers who are not wearing them. This has become a more prominent issue in the past few weeks with increased media scrutiny over the issue due to some asserting their ‘human rights’ not to wear one.

Legal basis

Police are able to enforce the wearing of a covering in public under the Public Health and Wellbeing Act 2008 (Vic) which gives them the power to enforce directions issued by the Chief Health Officer.

Under the direction given by the Chief Health Officer, face coverings must be worn whenever leaving home. This will be the case unless there is an exception as detailed below.

Refusal of entry/service

Under the Chief Health Officer’s direction, you can refuse entry to premises if the person is not wearing some form of face covering unless they are excused.  

This is in addition to the usual rights if you are the owner or tenant of a premises to restrict entry or to nominate conditions of entry for those coming onto your premises. For example, nightclubs who enforce dress codes for patrons wanting admittance.

If you require verification of someone’s identification for security reasons, you are able to ask them to remove their face mark temporarily. You can refuse to verify their identity if they fail to do this.

If a customer enters your premises not wearing a covering, you will not be liable for their breach of the direction and they will be directly fined. They will attract a $200 fine if they fail to provide a valid excuse.

However, business owners must take reason steps to ensure an employee wears a face covering at all times. WorkSafe is currently conducting worksite checks and any business not encouraging the wearing of coverings may be fined $9,913.

When can you be excused from wearing a mask?

There are 13 reasons when a person is not required to wear a face covering:

1. Infants and children under the age of 12 years;
2. A person who is affected by a relevant medical condition (e.g. breathing issues), a disability or a mental health issue (a medical certificate is generally required to be sighted if this is given);
3. Persons who are deaf or hard of hearing and require the sight of a person’s mouth for communication;
4. When there may be a risk to OH&S guidelines in the workplace;
5. Persons whose professions require clear enunciation or visibility of their mouth (e.g. broadcasters);
6. Professional sportspeople when training of competing;
7. If you are on your own property and there are no staff or contractors present;
8. When you are doing exercise or physical activity and you are out of breath (excludes walking);
9. When directed to remove the covering to ascertain identity;
10. When travelling in a vehicle by yourself or other household members;
11. When consuming food, drink or medication;
12. When undergoing relevant dental or medical treatment; and
13. During emergencies.

People who satisfy one of these reasons will be exempt. They do not need to show proof of their exemption and only need to indicate the reason for not wearing a face mark to Victoria Police if stopped.

If the reason becomes inapplicable as an activity concludes such as eating or exercising, the mask must then be put straight on. This is why it is important for individuals to always carry a mask with them when leaving home.

Steps businesses can take

In order to safeguard your businesses under these restrictions, you should ensure all employees wear face marks at all times unless there is an exception. In addition to this, clear signage can be put up indicating to customers that they will be refused service and entry if they are not wearing a covering and do not have a lawful exception.

With these and other measures coming into effect state wide due to Regional Victoria also moving to stage 3 restrictions, it is more important now than ever to understand your and others rights during this pandemic.

If you are concerned about the new restrictions and require further advice please contact Alicia Hill (03) 8450 0200 or email Alicia.hill@mst.com.au.