To be published in the October 2021 edition of the Queensland Hotels Association's QHA Review.
With government health directions coming and going, many of our pub and hotel clients have asked us whether they can refuse entry to someone for not wearing a mask. The short answer is, it depends. Unfortunately, this is still a grey area with strong arguments for and against. In this article, we talk through where you can (and can't) deny entry to non-mask wearing patrons.
Under the Human Rights Act 2019, public entities (such as Queensland Health) are obliged to take positive steps to protect rights, including the right to life.
Mandating mask wearing is an example of complying with this obligation. Under the Public Health Act 2005, Queensland Health have the power to issue health directions that must be complied with by the public in affected local government areas.
Under the current direction, patrons are required to wear a mask inside unless eating or drinking. And pubs are required to enforce this direction, or face hefty fines.
It is important to note that the direction to wear a mask does not apply to a person who has a physical or mental health illness or condition, or disability, which makes wearing a face mask unsuitable.
There is no requirement under the public health directions for those claiming a medical exemption to provide proof such a condition exists (i.e. produce a medical certificate).
Further, under the Disability Discrimination Act 1992, it is unlawful to discriminate against another person on the ground of the person's disability. This includes refusing access to any premises that the public (or a section of the public) is entitled or allowed to enter or use (i.e. a pub).
Therefore, declining a patron entry to your venue for not wearing a mask, may be considered unlawful discrimination, as their disability renders them exempt from the original direction to wear a mask.
However, under Anti-Discrimination legislation, a person may do an act (i.e. refuse someone entry to a venue for not wearing a mask) if it is 'reasonably necessary' to protect public health or protect the health and safety of people at a place of work.
Arguably, it is reasonably necessary to require patrons to wear masks to protect staff and other patrons against the risk of COVID-19.
It can also be argued that allowing anyone to claim a medical exemption without providing proof (which they are currently not required to do), will open the floodgates for other patrons to claim unsubstantiated medical exemptions, potentially endangering your patrons and staff.
Depending on the situation, it may be worth considering other laws that may provide you the right to refuse a patron from your venue. For example, the Liquor Act provides that a licensee has an obligation to provide a safe environment in and around their premises. It also does not limit the rights a licensee might have under another law to prevent entry to a premises – such as the right of a property owner or tenant to exclusive possession and quiet enjoyment of their premises.
This has certainly been a challenging time for the hospitality industry, and these grey areas can produce very difficult situations for staff, owners and managers. Your decision to refuse entry to a patron on the basis of them not wearing a mask will depend heavily on the circumstances at hand. Should you find yourself in need of urgent advice on this or any other legal matter to do with your venue, please contact me on 07 3224 0230.
Article written by Curt Schatz (Managing Partner) and Jake Breydon (Solicitor).
"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."