Over the weekend in Melbourne, there were several instances of “anti-maskers” making and publishing on social media video recordings of themselves telling various retail store employees and police that they did not need to wear a mask and there were no powers compelling them to wear a mask.
They are wrong. For those interested, this is where the power to compel mask wearing is derived.
Section 199 of the Public Health and Wellbeing Act 2008 (Vic) provides that the Chief Health Officer may make authorisations to exercise any public health risk powers and emergency powers if:
- a state of emergency has been declared under section 198 of the Act; and
- the Chief Health Officer believes it is necessary to grant the authorisation in order to eliminate or reduce a serious risk to public health.
Under section 200 of the Act, the emergency powers may include:
- detaining any person within the emergency area for the period reasonably necessary to reduce or eliminate the risk to public health;
- restricting the movement of any person or group within the emergency area;
- preventing any person or persons from entering the emergency area; and
- giving any other direction that the authorised officer considers is reasonably necessary to protect public health (this would include a direction to wear face masks or coverings).
A state of emergency is currently in place in Victoria (at this point, until 16 August 2020).
On 22 July 2020, the Deputy Public Heath Commander issued Stay at Home Directions (Restricted Areas) (No. 4) which directs that people must stay at home except for these authorised reasons:
- to purchase necessary goods or services (including food, drink, medical services and other necessary goods and services);
- for care or other compassionate reasons;
- to attend work or education;
- for exercise or outdoor recreation in a permitted category; or
- for other permitted reasons listed by the direction.
Clause 5(6) of the direction provides that a person may only leave their premises for a permitted reason if (subject to 16 permitted exceptions) they are wearing a face mask at all times.
A person refusing or failing to comply (without reasonable excuse) with a direction given under the Act is liable to a penalty of up to 165 penalty units, or $19,826.40, although the Government has indicated the fine for not wearing a mask is $200.
If you’d like to read a copy of the direction, it can be found here: https://www.dhhs.vic.gov.au/sites/default/files/documents/202007/Stay%20at%20Home%20Directions%20%28Restricted%20Areas%29%20%28No%204%29%20-%2022%20July%202020.pdf
Of course, a retail store may also set conditions of entry, provided it does not unduly discriminate. It is unlikely that refusal of entry constitutes discrimination unless the person seeking entry has a reason not to use a mask as set out in clause 5(7) of the direction.