Many Victorians are now being asked to wear a mask in public if they can’t socially distance.
It is possible this practice may be encouraged more widely across Australia, amid a push from health professionals to increase mask-wearing.
People will of course still want to visit private spaces, including offices, GP clinics and churches. They will want to go shopping and visit cafes.
So, can businesses refuse entry to customers who are not wearing a mask? Similarly, can they refuse entry to anyone not sanitising their hands?
What are our rights and obligations when it comes to mask wearing?
Business owners can set the rules
Australian law, quite simply, says that private landowners or occupiers can take reasonable steps to protect themselves, their employees and people on their property.
So it would be legal for businesses – including cafes and supermarkets – to make it a condition of entry that customers wear a mask and sanitise their hands.
It makes little difference whether the business is a GP clinic rather than, say, a greengrocer, in establishing their right to exclude patrons. However, in practical terms, people should realise the increased potential for catching/transmitting COVID-19 in a healthcare facility makes it even more important for the business owner to exclude those failing to wear a mask.
Entry conditions are nothing new
Entry rules and safety requirements are concepts we are already very familiar with in Australia.
We know and accept that nightclubs and private bars can enforce dress codes without fear of running afoul of the law. Indeed, you cannot board a plane or enter big public arenas without a bag check.
Schools have been instructing students’ families to accept “no hat, no play” for years due to the dangers of children being sunburnt.
Moreover, the law mandates seatbelts in cars and helmets for cyclists. These infringements on personal liberty are seen as acceptable – in both practice and law – because they protect both individuals and community safety.
It’s also about occupational health and safety
When it comes to businesses making customers wear a mask, there are important occupational health and safety considerations as well. The International Covenant on Economic, Social and Cultural Rights notes employees have a right to “safe and healthy working conditions”.
The United Nation’s 2011 Protect Respect and Remedy Framework also emphasises the need for businesses to take adequate preventive measures to ensure the health and safety of workers.
Following a major 2002 report to the federal government on negligence law reform, civil liability amendments were enacted in all jurisdictions across Australia.
South Australia’s Civil Liability Act provides a useful example of the scope of the reforms. It says when examining “standard of care”, a court must take into account, among other matters,
the measures (if any) taken [by the building occupier] to eliminate, reduce or warn against the danger; and the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger.
We don’t need ‘mask rage’ here
In the United States – where the political and COVID-19 situations are admittedly quite different from Australia’s – there is a heated debate about mask wearing. This has involved multiple cases of “mask rage”, featuring full-on scuffles in shops over people’s refusal to wear a mask.
This ongoing mask conflict recently gave rise to a sign, reportedly put up by a Portland bar, that was then shared widely on social media. It captures the essence of the legal position here in Australia, too.
DAMN, this is good. ???????????? pic.twitter.com/g1cCcGbOoP— Al Smizzle (@AlZeidenfeld) July 9, 2020
We can also use common sense
It is also important to note that that businesses, in setting their rules, cannot act in a discriminatory way. The law protects us against a range of discriminatory behaviours. The potential for, say, disability or religious discrimination might allow a person to legitimately refuse to wear a mask.
In that event, the shop would need to make alternative arrangements for that customer.
Ultimately, however, when it comes to taking protective action, as a community we need to rely as much on commonsense and common courtesies as anything else.Rick Sarre, Adjunct Professor of Law and Criminal Justice, University of South Australia and Juliette McIntyre, Lecturer in Law, University of South Australia