With COVID-19 public health orders and rules constantly being amended and updated, business owners and consumers can be forgiven for the confusion.
The 2021 Public Health (COVID-19 Mandatory Face Coverings) Orders* made under the Public Health Act 2010 (NSW) are no exception. In NSW, we must now wear face masks over our noses and mouths at all times while at indoor non-residential premises. In some local government areas, people must carry a face mask with them at all times. However, a person is exempt from wearing a face mask if they have “…a physical or mental health illness or condition, or disability, that makes wearing a fitted face covering unsuitable including, for example, a skin condition, an intellectual disability, autism or trauma.” The NSW Health website sets out that if a person cannot wear a face mask because of a disability, physical or mental health illness or condition, then they must carry either: 
- a medical certificate or letter signed by a registered health practitioner (such as a doctor) or a registered NDIS provider; or
- a statutory declaration.
This leaves business owners in a quandary: firstly, are business owners tasked with the responsibility to enforce customers to wear face masks? And secondly, what do business owners do if customers refuse to wear a mask and/or state that they have proof of exemption but do not provide evidence? The NSW Small Business Commissioner’s fact sheet provides some guidance to the first question stating: “Businesses are encouraged to promote the wearing of face coverings on their premises, however there is no obligation on a business to enforce mask wearing by customers entering their premises.” However, there is, in our view, a contradiction with an employer’s obligation for the health and safety of everyone in their workplace. In any event, the Commissioner states it is the NSW Police Force’s responsibility for enforcing any face covering non-compliance in non-residential premises. The NSW Small Business Commissioner’s fact sheet also states: “…Businesses can decline service to a customer if they do not comply with face covering rules – this is the business owner’s decision.” Applying Lord Denning’s infamous view of what he considered is reasonable sufficient notice in Thornton v Shoe Lane Parking Ltd [1971] 1 A11. E.R. 686, a notice “...to be effective it would need to be printed in red ink with a red hand pointing to it or something equally startling.” Take a look at the NSW Government and Australian Government’s poster and signage packs for face masks. If a business owner displayed one of these bright and “startling” signs on their front door, clearly stating that a wearing a mask is a condition of entry, then arguably the customer either accepts the contractual term and enters the premises wearing a mask, or breaches the contractual term upon entry with no mask (and no exemption).
So what do business owners do if a customer states they have an exemption to wearing a face mask? A business owner or service provider can request another person to provide information about a medical condition if it is not for the purpose of discriminating that person on grounds of their disability. The Australian Human Rights Commission provides an insightful resource regarding face masks and federal discrimination law, the Disability Discrimination Act 1992 (Cth). Generally, the public health orders for face coverings can be considered as indirect discrimination to someone who cannot wear face masks due to their medical condition or disability. However, in a defence to a claim of indirect discrimination, a business owner would have to prove the “reasonableness” on the person to comply with the condition of wearing a mask upon entry of the premises, examples include the physical space of the shop or premises, how long the people generally stay indoors of the non-residential premises, or whether the business owner has a close contact who is vulnerable to COVID-19 health impacts etc.
Further, if a business or premise owner inspects a patron’s proof of exemption for wearing a face mask, then the business owner should carefully consider whether there has been collection of personal information, and whether the business is regulated by the federal privacy laws. The business owner check their compliance with the Privacy Act 1998 (Cth) and the Australian Privacy Principles. It may be a timely reminder for businesses to consider their privacy policies.
*We note at the time of publishing this post, we could not see Public Health (COVID-19 Mandatory Face Coverings) Order (No 4) 2021 published on the NSW Legislation website which is why we have sourced NSW Government Gazette on 26 June 2021.
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