New Laws on Wearing Mandatory Face Masks in NSW - Criminal Defence Lawyers Australia

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As at 5 January, by about 9:30am, Burwood police officers were in Strathfield when they arrested a man for allegedly stealing an energy drink form a grocery shop close by. The man who was arrested allegedly took off his mask and refused to properly wear it.

Police officers took the man back to the Burwood Police Station where he was charged with stealing, resist police, intimidate police and failing to wear fitted face covering in retail business premises.

Following this, up till about 5pm the day before on 4 January, police issued penalty infringement notices to two people for failing to wear a mask in Sydney. One of them was a 35-year-old man at seven Hills Railway Station, while the other was a 39-year-old man in a shopping centre in Parramatta.

Our criminal lawyers Parramatta branch outline the existing law on wearing face masks during COVID in NSW.

A police officer or authorised officer may issue a penalty notice fine of $200 to any person if it appears to the officer that the person’s failed to wear a fitted face covering in specified circumstances, outlined in schedule 4of the Public Health Regulation 2012 (NSW).

The new directions to wear a fitted face covering in certain circumstances commenced on Monday 4 January 2021.

According to the Public Health (COVID-19 Mandatory Face Coverings) Order 2021 and the Public Health Act 2010 (NSW), all persons in the Greater Sydney area are required to wear a fitted face covering in certain circumstances or else face heavy penalties.

If a person issued with a penalty notice fine doesn’t wish to have it determined by a court, the person may pay the specified fine and will not be liable to any further proceedings for the alleged offence. It will not result in a criminal record or finding of guilt.

Should a person issued with a fine wish to have it determined by a court, the person may ‘court elect’ the penalty notice without paying the fine. By court electing it, the court will require a plea of ‘guilty’ or ‘not guilty’ to be entered. The matter will be dismissed with no further penalty if a verdict of ‘not guilty’ is returned or the court imposes a non-conviction section 10 penalty on sentence.

The court will impose a penalty that may be greater than the initial fine if a finding of guilt is returned either upon pleading guilty or upon the court finding guilt after a defended hearing (on a ‘not guilty’ plea).

In the event a person pleads guilty or a court finds the person guilty, the court can impose a maximum penalty of up to $11,000 fine or 6 months imprisonment, or both. In addition, if it is a continuing offence, a further $5,500 for each day the offence continues, pursuant to section 10 of the Public Health Act 2010 (NSW).

In the event a corporation commits this offence and it ends up being dealt with by a court, the maximum penalty a court can then impose upon a corporation is $55,000 fine, or in case of the offence continuing, a further $27,500 fine for each day the offence continues.

The maximum penalties are rarely imposed by courts, and usually reserved to the most serious of cases.

Table Of Contents

What you need to know about the new law on wearing face masks
Exceptions to the Rule
What is the “Greater Sydney” Area?

What you need to know about the new law on wearing face masks

A person is now required to wear a fitted face covering all the time when in an indoor area in Greater Sydney, in any of the following retail or business premises (or part premises):

Bank branches
Post office
Hairdressing or nail salon
Beauty, tanning, or waxing salon
Spa
Tattoo or massage parlour
Betting agencies
Any part of premises primarily used for gaming or gaming lounge under the Liquor Act 2007
Pubs, registered clubs and casinos
Entertainment facilities
Places of worship, being used for public worship or religious services
Residential aged care facilities

If premises are used for the purposes of providing a health service, the premises is not considered retail premises or business premises.

According to rule 5 of the Public Health (COVID-19 Mandatory Face Coverings) Order 2021 (NSW) A person in Greater Sydney is also now required to:

Wear a fitted face covering at all times when he/she is at a public transport waiting area, or in a vehicle including train or vessel being used to provide a public transport service such a taxi, rideshare or community transport service.
Wear a fitted face covering at all times while carrying out the functions working at a hospitality venue whose functions require him/her to deal directly with members of the public.

In addition, an operator of a hospitality venue in Greater Sydney is now required to ensure that all people working at the venue comply with the requirement to wear a fitted face covering at all times if their functions require them to deal directly with members of the public.

Exceptions to the Rule

Exceptions to the requirement to wear a fitted face covering in the above circumstances include, if you’re aged 12-years or less, or if you have a physical or mental health illness or condition, or disability, which causes wearing a fitted face covering unsuitable i.e. skin condition, intellectual disability, trauma or autism.

If you are a resident of a residential aged care facility, you are not required to wear a fitted face covering within the facility (within Greater Sydney).

Otherwise, a person is permitted to remove a fitted face covering in circumstances one is otherwise required to wear one if:

Eating or drinking
Communicating with another person who’s deaf or hard of hearing
At work where the nature of the work makes wearing a fitted face covering a risk to the person’s health and safety (or to another person’s), or clear enunciation or visibility of the person’s mouth is essential
If requested to remove the fitted face covering to ascertain identity
Emergency
Removal of the fitted face covering is necessary for the proper provision of the goods or services i.e. having a beard trim or facial.

If you are permitted to remove the fitted face covering under one of the above exceptions, you are required to resume wearing it as soon as practicable after the circumstances come to an end.

While breach of the direction attracts a $200 on-the-spot fine, there is up to a $1,000 fine if an individual operator of a hospitality venue in Greater Sydney fails to ensure that all people working there comply with the direction. If this is breached by a corporation, the on-the-spot fine is up to $5,000.

What is the “Greater Sydney” Area?

Greater Sydney area is the Greater Sydney region, including the following government areas- Bayside, Blacktown, Blue Mountains, Camden, Canada Bay, Burwood, Central Coast, Canterbury-Bankstown, Fairfield, Cumberland, Hawkesbury, Hornsby, Georges River, Hunter’s Hill, Inner West, Ku-ring-gai, Lane cove, Liverpool, Mosman, North Sydney, Northern Beaches, Parramatta, Penrith, Randwick, Ryde, Strathfield, Sutherland Shire, Sydney, The Hills Shire, Waverley, Willoughby, Wollondilly, Wollongong and Woollahra.

Published on 06/01/2021