Canberra Airport is threatening legal action against the ACT government because it continues to mandate that passengers must wear masks inside the terminal.
The airport owners argue that insisting on a measure which health experts say is unnecessary and which has been removed in other areas in the ACT where people gather breaks the ACT's Human Rights Act.
"If you refuse to revoke the face mask mandate or otherwise provide a sufficient explanation for it, adversely affected airport workers and travellers may be compelled to commence legal proceedings against you in the ACT Supreme Court under section 40C of the HRA," the airport's lawyers have written to the ACT government.
The ACT government said the mandate was "in line with a nationally consistent approach agreed to by the Australian Health Protection Principal Committee and the Australian aviation industry."
The statement continued: "We can confirm that the ACT Chief Health Officer received correspondence from Capital Airport Group. This has been handled by the ACT Government Solicitors Office. As this is a legal matter, we have no further comment at this time."
The airport's argument is that the mask mandate was brought in when the pandemic was rampant but that is clearly not the case now.
On the legal argument, its lawyers say that the ACT Human Rights Act permits emergency measures to restrict citizens' behaviour only to the extent that any limitations "can be demonstrably justified in a free and democratic society", as the law puts it.
And this, the airport's lawyers argue in their letter to the government, no longer holds.
"To date," the lawyers write, "you have never explained - publicly at least - why a mandatory face mask requirement at Canberra Airport is 'demonstrably justifiable' and 'necessary to protect the ACT community.'."
The lawyers then list what they believe are the reasons why the airport mask mandate is unnecessary:
- Virtually all (97.2 per cent) ACT residents over the age of five are double vaccinated;
- People in the ACT don't have to wear masks in other indoor venues that frequently attract more people than Canberra Airport, such as shopping centres, Canberra Casino, the National Convention Centre, or the National Gallery;
- Or in restaurants, bars, nightclubs, movie theatres, or gyms;
- Or the Jolimont Centre for interstate bus travel;
- Passengers arriving at Canberra Airport can travel through the ACT without quarantine;
- The EU and US no longer require masks at airports.
- Canberra Airport does not have a higher proportion of elderly or vulnerable people than other commercial venues.
The legal letter was sent last Tuesday. The ACT government said on Thursday that it would respond "shortly". The airport's chief executive Stephen Byron said he was still waiting for a response on Monday.
He has grown increasingly frustrated by the mask mandate at the airport.
A month ago, he said: "The rule has passed its use-by date, and it is not acceptable for aviation to be left behind in the move to relax COVID rules."
Passengers were increasingly disobeying the law and he questioned why anti-terrorism police at the airport were expected to enforce it. He reckoned that a fifth of passengers and visitors didn't wear masks in the terminal.
The airport mask rule was imposed by the Commonwealth government but it is at the discretion of the ACT government to remove it.
Masks remain compulsory at both Sydney and Melbourne airports and on flights within Australia.
A spokesperson for Tullamarine in Melbourne said: "There's currently a disconnect, in that almost every weekend we will have passengers fly into the airport where masks are mandatory, only to then travel to the MCG when they can mingle with up to 80,000 other people without masks."
But epidemiologists said that the risks were different.
Mr Byron said he had spoken to both territory and federal governments. Both agreed the mask rule was now unnecessary - but yet it remained.
"I've spoken with the Commonwealth government. They have specifically advised that state chief health officers can implement a relaxation at airport terminals if they wish," he said.
He's now upped the ante by threatening legal action. In the letter sent last week, the airport's lawyers say: "The face mask mandate imposes a significant practical burden on airport workers and travellers, and amounts to an ongoing violation of their rights under the Human Rights Act 2004 (HRA) that can no longer be justified based on the current state of COVID-related regulations in the ACT.
"Moreover, the mandate creates a tangible stigma around attending Canberra Airport, sending the false message to would-be travellers that visiting the airport carries greater risk than visiting other ACT premises that are not subject to mask mandates (including pubs, nightclubs, strip clubs and brothels)."
The ACT's Chief Minister Andrew Barr said: "The policy is consistent across all airports in Australia, so for the ACT to move ahead of the rest of Australia would beg the question, 'why is Canberra Airport so different'?"
