• Alyce Cooper

Do you have to pay the $200 fine if you’re caught not wearing a mask?

Updated: Aug 10, 2021

Alyce Cooper, our Hawkesbury-based legal expert, lays down the law…

Since the new legislation came into force requiring people in Greater Sydney – which includes the Hawkesbury – to wear face masks in some indoor settings, there are people – usually on Facebook – who say you don’t have to pay the fine and the case would be thrown out of court.

The short news is – that’s not true.

If you are not wearing a mask in any of the legislated paces – I’ve put a list below – and a police officer asks you to wear a mask and you refuse, you could be handed a $200 PIN. This is a Penalty Infringement Notice and is a legal fine.

Once issued with a penalty notice you have a few options available to you.

You may pay the fine and you are not liable to any further proceedings. It is not a criminal conviction and will not appear on your record.

If you do not intend on paying the fine you may elect to have the matter determined by a Court. If you make that decision, you will be given a date to attend the Local Court. You must appear before the Court on that date and enter a plea of Guilty or Not Guilty.

If you plead not guilty there will be a short hearing where the police give evidence and you can give your evidence. The magistrate then makes a decision whether the fine stands or not.

If you are found not guilty by the Court, that is the end of the matter, and there is no fine payable.

If you plead guilty, or are found guilty after a hearing, the Court can impose a fine of up to $11,000 - or six-months' imprisonment, or both, depending on the circumstances around the incident.

Generally the Court would enforce the original fine amount, or perhaps add a small sum in addition. It would be extremely rare for someone to receive the maximum fine allowed. I imagine a hefty fine (but still not the maximum), would be imposed if you are someone who continually breaches the legislation.

Lastly, if you receive the penalty notice and do not pay the fine, this will result in penalty fees being added and may result in the loss of your driver’s licence, and could include other enforcement proceedings.

You can take your mask off to have a drink in a cafe...

The new legislation for mandatory face covering in Greater Sydney came in on January 3. Officially called the Public Health (COVID-19 Mandatory Face Coverings) Order 2021 – it essentially states that it is mandatory to properly wear a face covering in Greater Sydney, if you are in certain indoor areas, unless an exception applies.

Indoor areas are defined as ‘an area in a building or other structure, whether or not temporary, that has a roof, ceiling or other top covering, but does not include an area with at least 2 sides open to the weather’.

The main areas the legislation applies to are:

Retail premises, or business premises, that provide goods or services to members of the public who attend the premises, including supermarkets, shopping centres, banks, post offices, hairdressing, beauty, tanning, waxing and nail salons, spas, tattoo and massage parlours, and betting agencies.

Interestingly, premises that are used for the purpose of providing health services are not retail premises or business premises, so in theory are not covered – which is unusual.

Specifically, these places listed here demands face masks to be worn:

· pubs, registered clubs and casinos

· entertainment facilities

· places of public worship

· on public transport

· residential aged care facilities (not including residents) and hospitality workers

The legislation says a person may remove their face covering in the following circumstances:

· you are eating or drinking

· you are communicating with another person who is deaf or hard of hearing

· you are at work and the nature of your work— (i) makes the wearing of a fitted face covering a risk to the person’s, or another person’s health and safety, or (ii) means clear enunciation or visibility of the person’s mouth is essential

· you are asked to remove the fitted face covering to check your identity

· because of an emergency

· the removal of the fitted face covering is necessary for the proper provision of the goods or service. Example. A person having a facial, or a beard trim.

Exemptions also include

· anyone aged 12 years or under

· a person with 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.’

Of course, if you are relying on physical or mental health illness/conditions, it would be prudent to always have medical evidence of this with you.

A police officer or authorised officer may issue a penalty notice for a fine of $200 to any person if it appears that they have failed to wear a fitted face covering as per the legislation.

Alyce Cooper is the Principal Solicitor at AKC Legal. Ms Cooper specialises in traffic law, criminal law, civil law, family law, Estate Planning and Probate matters.

The contents of this article should not be construed as specific legal advice to any individual reader’s situation. If you would like legal advice tailored to your situation, please contact AKC Legal on 0401 451 322.

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