The complexities of a ‘mask mandate’

As Auckland moved out of Level 3, the Government urged residents to wear face coverings whenever they are in public - but why haven’t they made it mandatory? Sam Sachdeva looks at the ins and outs of a possible “mask mandate”

“If you go to a shop, wear a mask. If you go to a mall, wear a mask. Basically, when you step out of your home, we are asking you if you can, please wear a mask.”

Jacinda Ardern’s words to Aucklanders last week, as the city prepared to move out of Level 3, were unequivocal.

But while face coverings must be worn on public transport nationwide, their use in public places more widely has merely been encouraged rather than required in other spaces, such as supermarkets or shops.

Asked by Newsroom on Sunday why the Government had not mandated the use of masks beyond public transport, Ardern cited the legal complexities involved in such a move.

“There are a range of issues that you have to become really mindful of: how do you make sure that you’re enforcing it? What’s the penalty regime? Who is responsible for enforcing - for instance, would you require retailers to bar people from entering a shop if they’re not wearing a mask?

“You then have to think about what happens in cases of escalation. It’s not a simple thing to ask to suddenly mandate and create a legal framework around that.”

The Government does already have the power to compel the wearing of masks under current Covid-19 health legislation, according to University of Otago law professor Andrew Geddis.

The law requires any orders made to be “proportionate” to the circumstances at the time, an important caveat that may explain the narrow scope of the Government’s current mandate.

“If you say to people, ‘You must wear a mask and shop’, and someone turns up at the doorstep of a shop without a mask, is the onus on the shop owner to say, ‘No, get out, you’re not allowed in here’, or is the shop owner fine to let the person come in without the mask and buy stuff, but if the person gets caught without the mask then the police can fine [them]?”

“If you’re...walking down the beach with no-one else around, a mask obviously is much less important in that situation than if you’re sitting in a close and totally confined space,” Geddis says.

“Partly I suspect the legal problem is they’re probably getting advice that just telling everyone, ‘You must wear a mask in all situations at the moment’, while Covid-19 doesn’t appear to be widely circulating in the community, could be a disproportionate response and therefore challengeable.”

If there was a widespread outbreak like the one in Melbourne, Geddis says it would be “absolutely zero problem” for the Government to institute a general mask mandate to curtail the spread of the virus.

However, that would need to be assessed on the merits of each outbreak, rather than a blanket requirement for masks to be worn at (for example) Level 3 and above.

Even in a situation where a widespread mask mandate was a proportionate response, Geddis says there is the more prosaic matter of how exactly to enforce it - and in particular, who would be liable for someone’s failure to wear a mask in a particular setting.

“If you say to people, ‘You must wear a mask and shop’, and someone turns up at the doorstep of a shop without a mask, is the onus on the shop owner to say, ‘No, get out, you’re not allowed in here’, or is the shop owner fine to let the person come in without the mask and buy stuff, but if the person gets caught without the mask then the police can fine [them]?”

Jacinda Ardern (centre) has been wearing masks in public more often, but cites legal complexities as to why the Government hasn't mandated their use more widely yet. Photo: Lynn Grieveson.

Retail NZ chief executive Greg Harford says his association does not have an explicit position on the value of a wide-ranging mask mandate, but is clear that any such move should not result in retailers policing compliance.

“It’s not a retailer’s job to be enforcing the rules, whether it’s contact tracing or mask use - it’s just really not what we’re there for, and I think you get pretty good levels of compliance from the public on these sorts of things anyway.”

Additional complexities related to the security of customers with obscured faces would also have to be addressed, Harford says.

Then there is the issue of verifying a customer’s age before selling restricted products like cigarettes and alcohol, with American teens purportedly taking advantage of face masks to impersonate senior citizens and buy booze.

Harford is unaware of any retailers who have made a face covering a condition of entry for either staff or customers, but says many are encouraging people to do so given the public health benefits.

“It would have been unheard of a year ago to suggest that retail staff have their faces covered, but I think that’s become quite accepted now.”

One potential benefit of a mask mandate would be if it, coupled with physical distancing rules, allowed a greater number of businesses to open at Level 3 or above.

“The reality is that e-commerce only takes you so far, and customers still like to be able to get out and buy the things that they need.”

Cabinet moves carefully on masks

There is a reasonable degree of political support for a mask mandate, including from unlikely bedfellows David Seymour and Winston Peters.

On Tuesday, Peters said New Zealand First had spent months advocating for the more extensive use of masks, “not as a 50/50 option but a smart option with proven results such as in Taiwan”, while the ACT leader was also in favour of a legal mandate where evidence backed it.

“My view is that if there’s strong public health evidence that something will reduce transmission and avoid unsustainable and damaging lockdowns, then we should make it a law to do it, because when people talk about civil liberties the real alternative is having more lockdowns that are simply unaffordable for a wellbeing approach,” Seymour said.

Ardern has said the Government is open to making wider use of masks a legal requirement in the future, should encouragement to do so voluntarily prove insufficient.

But the Cabinet is treading carefully for now, perhaps wary of moving too fast for public comfort given the fact masks have not been commonly worn in New Zealand before now, unlike other parts of the world.

So for now, it is up to Kiwis whether they choose to face the world with, or without, a mask.

Help us create a sustainable future for independent local journalism

As New Zealand moves from crisis to recovery mode the need to support local industry has been brought into sharp relief.

As our journalists work to ask the hard questions about our recovery, we also look to you, our readers for support. Reader donations are critical to what we do. If you can help us, please click the button to ensure we can continue to provide quality independent journalism you can trust.

With thanks to our partners