The requirement to wear face masks: the Law in NSW

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The Victorian government has now made face masks mandatory in which residents in metropolitan Melbourne and Mitchell Shire must wear a face-covering whenever outside the home, or they will be liable for a $200 fine. In NSW, however, no such direction has yet been issued. 

Am I required by law to wear a face mask in NSW?

Under the Public Health Act 2010 (NSW) (‘the Act’), State officials can implement and enforce a range of directions and orders to deal with public health risks posed by COVID-19.

Section 7 of the Act allows the Health Minister to deal with public health risks where the  Minister considers on reasonable grounds that a situation has arisen that is a risk to public health. In these circumstances, the minister may take such action or give such directions that are necessary to deal with the risk and its possible consequences.

This allows the minister to issues directions and orders to:

  • Reduce or remove any risk
  • Segregate or isolate inhabitants, or
  • Prevent, or conditionally permit, access to areas.

 

Under the section, a wide range of orders can be made without the need to seek approval from parliament and could include the wearing of masks.

At present, however, no such direction or order has been issued meaning that failure to wear a face mask is not a failure to comply with a public health order.

 

What is the offence of Failing to comply with a public health order?

Under section 10 of the Act when a direction is issued under section 7, 8 or 9, a person must not, without reasonable excuse, fail to comply with that direction.

 

For an individual failing to comply,  the maximum penalty is 100 penalty units ($11,000), or imprisonment for 6 months, or both. If this is a continuing offence, a further 50 penalty units ($5,500) for each day the offence continues applies.

 

For corporations, the maximum penalty is 500 penalty units ($55,000) and, in the case of a continuing offence, a further 250 penalty units ($27,500) for each day the offence continues applies.

 

These penalties apply where the matter is dealt with by the court. The alternative is for police and public health officials to issue an infringement notice (fine) of $1,000 in the case of individuals or $5,000 in the case of corporations.

 

What is the NSW position on Masks?

NSW Health has issued a Media Release strongly encouraging people to wear masks when unable to physically distance. This applied particularly in indoor settings such as on public transport and in places where people congregate, such as entertainment venues, services at places of worship, and in hospitality venues such as pubs, clubs and restaurants.

 

When wearing a face mask, NSW has advised that it is important to use a mask properly by:

  • Washing or sanitising your hands before putting it on or taking it off;
  • Ensuring the mask covers your nose and mouth and fits snugly under your chin, over the bridge of your nose and against the sides of your face;
  • Refraining from touching the front of your mask while wearing or removing it;
  • Not allowing the mask to hang around your neck or under your nose.

 

The NSW Chief Health Officer has also advised that masks should not be worn by young children, anyone who has trouble breathing or anyone unable to remove the mask themselves without assistance.

 

There is currently no public health order in New South Wales which makes it mandatory to wear a mask and there is also no law prohibiting a business from requiring a face mask to be worn as a condition of entry.

 

If you or someone you know needs advice or representation for an alleged criminal offence, contact the team at Hamilton Janke Lawyer 24 hours a day, seven days a week by calling 4038 1666.

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