Can v State of New South Wales - [2021] NSWSC 1480 - NSWSC 2021 case summary — Zoe

NSWNSWSC

Can v State of New South Wales

[2021] NSWSC 1480

Supreme Court of NSW|2021-11-05|Before: Adamson J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-11-05

Before

Adamson J

Catchwords

[1932] HCA 9 Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493
[1980] HCA 53 Brown v Tasmania (2017) 261 CLR 328
[2017] HCA 43 Cotterill v Romanes [2021] VSC 498 Croome v Tasmania (1997) 191 CLR 119
[1997] HCA 5 Director of Public Prosecutions v Zierk [2008] VSC 184

Source

Original judgment source is linked above.

Catchwords

[1932] HCA 9 Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493[1980] HCA 53 Brown v Tasmania (2017) 261 CLR 328[2017] HCA 43 Cotterill v Romanes [2021] VSC 498 Croome v Tasmania (1997) 191 CLR 119[1997] HCA 5 Director of Public Prosecutions v Zierk [2008] VSC 184(2008) 184 A Crim R 582 Ex parte GrinhamRe Sneddon [1961] SR (NSW) 862 Kassam v HazzardHenry v Hazzard [2021] NSWSC 1320 Kuczborski v The State of Queensland (2014) 254 CLR 51(2020) 94 ALJR 502 Sorby v Commonwealth (1983) 152 CLR 281[1983] HCA 10 The Queen v Rogerson (1992) 174 CLR 268

Judgment (28 paragraphs)

[1]

NSWSC 1320 Kuczborski v The State of Queensland (2014) 254 CLR 51; [2014] HCA 46 Larter v Hazzard (No 2) [2021] NSWSC 1451 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 Pharmaceutical Society of Great Britain v Dickson [1970] AC 403 Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; (2020) 94 ALJR 502 Sorby v Commonwealth (1983) 152 CLR 281; [1983] HCA 10 The Queen v Rogerson (1992) 174 CLR 268; [1992] HCA 25 Texts Cited: Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW), cll 3.2, 3.13, 3.14, 4.3, 4.15, 5.3, 5.6, 5.8, 6.5, 19, 20, 23, 24, 24A Public Health (COVID-19 General) Order 2021 (NSW), cll 2.14, 3.15, 6.3, 7.2, 20, 21 Category: Principal judgment Parties: Ibrahim Can (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: S Prince SC / A Ahmad (Plaintiff) J Kirk SC / T Prince / D Reynolds (Defendant)

[5]

Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW)

On 20 August 2021, the Minister made Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (the Delta Order). It was subsequently amended on several occasions before its repeal on 11 October 2021. The plaintiff seeks to challenge the Delta Order, as at 16 September 2021. Accordingly, all references to the Delta Order are references to the version which became operative on 16 September 2021.
The Delta Order severely restricted the movement of people in New South Wales, and parts of it, subject to certain exceptions. It made provision for three categories of area, "the general area" (which was the whole of New South Wales apart from a "stay at home area" or "an area of concern"); stay at home areas (Greater Sydney and a regional NSW area other than a part of the regional NSW area that is an area of concern); and areas of concern (identified by Local Government Area (LGA) or suburb within a LGA).
Clause 3.2 in Part 3 of the Delta Order prohibited a person who had been in a stay at home area since the relevant date from leaving the person's place of residence, wherever located, without a reasonable excuse (which was defined as an activity specified for a stay at home area in Schedule 2). Clause 24A of Schedule 2 provided that in areas of concern a person may leave the person's place of residence for outdoor recreation no further than 5 kilometres away if the person is fully vaccinated or under 16 years of age and is with others in the same category. The duration of the activity was limited to two hours per day. Participants over 16 years of age were required to carry evidence showing the person's name and place of residence and vaccination evidence and produce it to a police officer upon request.
The Delta Order contained similar provisions which applied to those leaving Greater Sydney and, for example, those working on construction sites in Greater Sydney (who were required to be vaccinated before entering the site unless a medical contraindication was established by certificate, in which case a COVID-19 test result showing a negative result in the previous 72 hours was required). Those leaving a "stay at home" area were required to provide evidence to fall within the exemption. Those leaving home to obtain "goods and services" were also required to carry evidence of the person's name and address and produce such evidence if required.

[7]

Delta Order Clause Required information or evidence Activity Who may request information or evidence 3.13(1A)(b) Vaccination evidence Outdoor gathering of more than two persons in a stay at home area Police officer 3.14(2)(b) Evidence showing the person's name and place of residence Persons in vehicle with another person in a stay at home area Police officer 4.3(3A)(b) Vaccination evidence and evidence showing the person's name and place of residence Leaving an area of concern for work Person's employer, occupier of workplace, a police officer or an authorised officer 4.15(2)(b) Evidence showing the person's name and place of residence Persons in vehicle with another person in an area of concern Police officer 5.3(5) Evidence of COVID-19 test and evidence showing the person's name and place of residence Travelling more than 50 km from Greater Sydney for work Police officer 5.6(b) Evidence showing the person's name and place of residence Leaving Greater Sydney Police officer 5.8(3)(b) Vaccination evidence and evidence showing the person's name and place of residence Entering or remaining on construction sites in Greater Sydney Person's employer, occupier of workplace, a police officer or an authorised officer 6.5(5) Evidence of COVID-19 test and evidence showing the person's name and place of residence Testing of certain categories of worker Police officer 19(3)(b) Evidence showing the person's name and place of residence Obtaining goods and services in stay at home areas Police officer 20(2)(b) Evidence showing the person's name and place of residence Exercise or outdoor recreation in stay at home areas Police officer 23(5)(b) Evidence showing the person's name and place of residence Obtaining goods and services in areas of concern Police officer 24(2)(b) Evidence showing the person's name and place of residence Exercise or supervising children under the age of 12 playing in areas of concern Police officer 24A(3)(b) Evidence showing the person's name and place of residence and vaccination evidence Outdoor recreation for fully vaccinated people in areas of concern Police officer

[9]

The plaintiff

The plaintiff is an Australian citizen who is 21 years old. He resides in Auburn with his mother, her partner and his three siblings, one of whom is his twin brother. He works full-time as a first-year carpentry apprentice and earns about $700 per week. This amount is barely sufficient to cover his expenses. He will soon undertake the TAFE component of his apprenticeship. His twin brother was an apprentice electrician but, as at September 2021, was out of work due to the pandemic. Before the pandemic, the plaintiff's mother and her partner both worked as Uber drivers. Since the lockdown which commenced in June 2021, their capacity to undertake work has diminished and they had to rely on Government benefits.
The plaintiff's evidence was not challenged. He was not required for cross-examination. In his affidavit read in support of the relief claimed, he explained his reasons for bringing the proceedings as follows: "27. My concerns have gradually developed over the past several weeks as a result of being stopped by police and interrogated on no fewer than 5 separate occasions. 28. During each of my interactions with the New South Wales Police, I have found police to be confronting and intimidating. This is because on each of those interactions, I felt as though I was being interrogated in a manner where I had to prove my innocence even though I had done nothing wrong. The questions that police asked me on each occasion were very similar and included, the need to provide my identification, to answer where I was going, what I was doing, who I was with, and why I left my home. I was also asked questions about my health including being asked to produce evidence of my vaccination status. 29. During these interrogatory stops, the police did not caution me prior to questioning me, they also did not inform me that I have a right to object to answering their questions. The police asked me these questions in a manner that made me feel as though I had no choice but to answer them. 30. Despite the fact that I had not done anything wrong, the manner in which police interacted with made me feel scared and anxious. Having had extremely limited interaction with the Police prior to the Public Health Orders coming into effect, these experiences have led me to become concerned about the manner in which police are treating members of my community. 31. One interaction with the police which alarmed me most occurred approximately three weeks ago. I had been outside my home at a local park to exercise when I asked my twin brother to pick me up and drive me home. My twin brother and I live in the same residence. 32. As we were driving home, we were stopped by a Police vehicle. At the time that we were stopped, we were close to our home. My brother had not committed any type of traffic offence, so I was unsure as to why we had been stopped by the police. When the police officers approached our vehicle, they began questioning us about where we were going and what we were doing. The manner in which the police officers spoke to my brother and I was dismissive and discourteous. Despite this, my brother and I both provided our identification and we both answered all the questions that we were asked by the police. 33. During the interaction, one of the police officers then said something to the following effect: 'You are both in breach the Public Health Order because two people cannot be in a vehicle together, you will both be getting fines for breaching the Order.' 34. I did not understand why the police officer said this as the Public Health Order did not prohibit two people travelling in the same vehicle if both persons were members of the same household. 35. I questioned the police officer and said something to the effect of: 'The Public Health Order allows two people to be in the same vehicle if they are from the same household. He is my twin brother, and you have both our driver's licenses showing that we are from the same address.' 36. The police officer did not respond to this directly and after a short amount of time, the police officer said something to the effect of: 'I will let it go this time, make sure that it does not happen again.' 37. I felt as though if I had no knowledge about the Order, I would have been given a fine which I would have most likely paid. 38. While I considered complaining to the Police Local Area Command, I was shocked when I heard a video recording made by the Police Commissioner addressing Officers of the NSW Police, where he said: 'I have said before, if you write a ticket, and you get it wrong, I understand, and I won't hold you to account for that. We have to shape the behaviour of people to get out of lockdown, and I know all of us want to be out of lockdown by Christmas, so please take the challenge.' The Police Commissioners video was widely published and reported in the media, and the video I watched of the Police Commissioner can be found at the following link on the Sydney Morning Herald website [included]. 39. Listening to the Police Commissioner's Comments made me feel extremely uncomfortable and concerned. I felt as though the Police Commissioner gave police officers in New South Wales the greenlight to fine people without having to face any repercussions if they did so incorrectly. What concerned me most is that many members of my community, including some of my own family members, do not speak English and have very limited understanding of the Public Health Orders, and have limited capacity to challenge fines. 40. In addition to the 5 interactions, I have had with the police, I have on several occasions observed police shining lights into homes as they drive slowly in my street. This has happened to our home on several occasions. 41. Prior to the public health orders coming into effect, I rarely had any interaction with New South Wales Police in my community. 42. I have no issues with the NSW Police, and I have never had any adverse feeling towards police officers. Currently, one of my closest friends is in the NSW Police Force. Aside from my recent interactions, I admire and respect the work that the NSW Police do in our community. 43. I do believe in this existence of Covid-19. I equally believe and understand in the serious risks that the virus poses. I am not in any way against vaccination, in fact I have currently had one shot of the AstraZeneca vaccine. I am currently waiting to receive my second shot of the … vaccine. 44. I have in every way possible attempted to adhere with the Public Health Orders in order to keep my family and community safe and I will continue to do so. 45. My only concern is that the powers given to the NSW Police Force and other persons under the Public Health Order may not be lawful, and I wish to be able to exercise my right to silence, any right against self-incrimination that is available to me, and the protections afforded to me in Section 114 of the Public Health Act when dealing with police officers or any other person who demands for me to produce documents or answer questions under the Public Health Order."

[10]

Relevant legislative provisions

Section 7 of the Act relevantly provides: "7 Power to deal with public health risks generally (1) This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health. (2) In those circumstances, the Minister - (a) may take such action, and (b) may by order give such directions, as the Minister considers necessary to deal with the risk and its possible consequences. (3) Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary - (a) to reduce or remove any risk to public health in the area, and (b) to segregate or isolate inhabitants of the area, and (c) to prevent, or conditionally permit, access to the area. … (5) Unless it is earlier revoked, an order expires at the end of 90 days after it was made or on such earlier date as may be specified in the order. …"
Section 10 of the Act provides that it is an offence not to comply with a Ministerial direction, relevantly, under s 7 and that, in the case of an individual, the offence carries a maximum penalty of 100 penalty units, or imprisonment for 6 months, or both, and, in the case of a continuing offence, a further 50 penalty units for each day the offence continues.
Part 8, entitled "Enforcement of Act", has three Divisions: Division 1 - General inspections and inquiries; Division 2 - Power to demand information; and Division 3 - Offences. Division 2 contains ss 110-112. "Authorised officers" are persons appointed to be authorised officers under s 126. In respect of s 112(1) (see below), police officers are also authorised officers.
Section 110 relevantly provides: "110 Power of authorised officers to require answers (1) An authorised officer may, by notice in writing, direct a person whom the authorised officer suspects on reasonable grounds to have knowledge of matters about which he or she requires information in connection with the exercise of his or her functions - (a) to answer questions in relation to those matters, and (b) if a meeting with the authorised officer is reasonably necessary to enable questions in relation to those matters to be properly asked and answered, to meet with the authorised officer to answer such questions. … (5) An authorised officer may record any questions and answers under this section if the person to be questioned has been informed that the record is to be made. (6) A record may be made by any method, including sound or video recording. (7) A copy of any such record must be provided to the person who is questioned as soon as practicable after the record is made."
Section 111 deals with a requirement to provide information and documents as follows: "(1) An authorised officer may, by notice in writing, direct a person to furnish to the authorised officer such information or documents as the authorised officer requires in connection with the exercise of the authorised officer's functions. (2) A notice under this section must specify the manner in which, and the time by which, the information or documents to which the notice relates must be furnished. (3) A notice under this section may only require a person to furnish existing documents that are in the person's possession or that are within the person's power to obtain lawfully. (4) The person to whom a document is furnished under this section may take copies of it. …"
Section 112 provides: "112 Power of authorised officers to direct name and address to be provided (1) An authorised officer may direct a person whom the authorised officer suspects to have contravened or to be contravening any provision of this Act or the regulations, or who is apparently in charge of premises where such a contravention is occurring or evidently has occurred, to state his or her full name and residential address and (if the person is not the occupier of the premises) the name of the occupier of the premises. (2) In this section, authorised officer includes a police officer. (3) (Repealed)."
Section 112(2) was added by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW), Sch 2, cl 2.16[4], which also added section 112(3), which provided: "Subsection (2) and this subsection are repealed on the day that is 12 months after the commencement of subsection (2)."
Section 112(3) has since been repealed. The evident purpose of the amendment, as revealed by its title, was to expand the powers of police officers to deal with suspected contraventions of the Act during the pandemic. At the time the amendment was enacted it may have been thought that the pandemic would be of shorter duration than has proved to be the case. The repeal of s 112(3) removes the sunset clause for s 112(2).
Division 3 of Part 8 of the Act sets out the sections relating to offences. Section 113 makes it an offence not to comply with a direction under Part 8, without reasonable excuse. Section 114(2) provides that a person is not excused from complying with a direction under Part 8 to furnish documents or information, or to answer a question, on the ground of self-incrimination.

[17]

Cotterill

In Cotterill, the plaintiff was found to have standing to challenge the Stay at Home Directions (Restricted Areas) (No 14) (Directions No 14) which had been made under the Public Health and Wellbeing Act 2008 (Vic) (the PHW Act) because at the time she commenced the proceeding there was an extant infringement notice for breach of Directions No 14. The notice had been given to her on 13 September 2020 when the plaintiff was outside her home and, on her case, exercising (which was a permitted reason to be outside her home) and demonstrating against the lockdown (which was not). Section 203 of the PHW Act made failure to comply with a direction a criminal offence.
On the basis of Brown, Niall JA held, at [133]-[134] that her standing was not lost when the infringement notice was subsequently withdrawn. Further, Niall JA held that, even in the absence of an infringement notice, the plaintiff had standing as she intended to continue to breach Directions No 14 (as in Croome). However, Niall JA found that the plaintiff had standing on a further basis: that she sought to vindicate a private right, namely the right to enter or leave her premises. His Honour held, at [135], that because private rights were affected, the principles regarding standing to challenge an exercise of public power which did not affect private rights did not apply. Niall JA said: "135 Further, the argument of the defendants fails to grasp the important point that the plaintiff seeks to vindicate a private right, namely the right to enter or leave her residence. Unlike in cases like ACF and Onus v Alcoa of Australia Ltd, this case concerns an affectation of private rights and therefore does not engage the standing principles that apply to a challenge of the exercise of public power that does not affect private rights. In ACF, Gibbs J noted the distinction between a suit to enforce public rights and duties, and an action in respect of private rights or 'private damage'. His Honour referred to the following passage of Buckley J in Boyce v Paddington Borough Council: A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right. 136 Similarly, Aickin J did not doubt that if 'private damage has been suffered proceedings to recover such damage are always open to an individual plaintiff'. He went on to observe that where private rights are in issue whether or not a declaration should be made may depend on whether the person has a 'real interest' or a substantial interest. In my view, the requirement, backed by criminal sanction, that a person remain in their home or not gather with other persons constitutes an interference with a relevantly private right. 137 The fact that many people, indeed the whole of metropolitan Melbourne, were subject to the Directions does not change the nature of the rights and interests that the Directions curtailed." [Emphasis added, footnotes omitted.]
The following propositions emerge from the authorities: 1. A person will have standing to challenge an impugned law if: 1. the person has been charged with an offence under the law (Brown); 2. the person has been charged with an offence under the law but the charge was withdrawn after proceedings to challenge the law were commenced (Brown, Cotterill); 3. although the person has not been charged with an offence, the person admits that he or she has contravened the offence and proposes to continue to do so (Croome; Brown and Cotterill); 4. the person has suffered particular damage as a consequence of the impugned law's operation (Cotterill); or 5. the law interferes with a private right of the plaintiff, such as the right to access the person's dwelling (Cotterill); and 6. interference with a private right does not lose that characterisation merely because a large number of members of the public have the same right and are similarly affected by the law (Cotterill). 1. A person will not have standing to challenge an impugned law if: 1. the person has no more than an intellectual, political or emotional objection to it (ACF); or 2. the person has not been charged with an offence under the law and does not admit that he or she has breached it (Smethurst); or 3. the law may affect the person if the person chooses to act in a particular way but the person does not propose to act in that way unless assured that such conduct would not be unlawful; or 4. the law affects the maximum penalty for an offence and the person has not been charged with, or convicted of, an offence.
The plaintiff is, so far as the evidence revealed, a law-abiding citizen who is sick of being harassed by the police who have, at least in one instance, an inadequate grasp on the content of the public health orders (by failing to appreciate the exemption on carpooling which applies to members of the same household). He would prefer not to have to comply with requests made by the police that he provide evidence of his name, place of residence and vaccination status but does not want to put himself in breach of the law by refusing such requests. As the passage from his affidavit extracted above shows, he was appalled by the statements made by the Commissioner of Police to the effect that the police need not abide by the law. He is concerned that others in the community in which he lives will be invalidly charged and prosecuted and will pay fines when there is no legal obligation to do so because they lack the education and fluency to become acquainted with, and to articulate, the law in the face of a challenge by a police officer. Although it was not expressed, there are also undertones of racial stereotyping in the descriptions of the conduct of the police towards the plaintiff.
There is a strong public interest in the determination of the ambit of police powers and in the police force, whose task is to enforce the law, performing their duties in compliance with the law. For the reasons given by Gibbs J in ACF, none of these matters is sufficient to give the plaintiff standing to challenge the Delta Order or the General Order.
However, it is significant that the provisions of the Delta Order and the General Order sought to be impugned interfere with the plaintiff's private right to leave his home by requiring him to produce evidence if he has done so. The analysis of Niall JA in Cotterill was not necessary for the decision in that case (and is therefore obiter) as the plaintiff in that case had received an infringement notice. However, I am persuaded that the interference with the plaintiff's private rights is sufficient to give him standing in the proceedings in this Court concerning the operation of NSW legislation and public health orders made under it. That the right of everyone else in New South Wales to leave home was affected, too, does not, on Niall JA's analysis, alter the position that the plaintiff has standing.
It is, accordingly, necessary to turn to the substantive questions raised by the plaintiff.

[22]

Construction of s 7 having regard to Part 8

The so-called "Anthony Hordern principle" derives from the following passage from Anthony Hordern at 7 (Gavan Duffy CJ and Dixon J): "When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."
The Anthony Hordern principle is engaged when two legislative provisions deal with the same subject matter: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [59] and [61] (Gummow and Hayne JJ). As a provision may bear a number of different characters, it is important to ensure that the characterisation process does not, itself, produce an apparent conflict where there is none.
In general terms, s 7 is intended to address responses to risks to public health and Part 8 provides machinery by which provisions of the Act are to be enforced. There is some overlap between s 7 and Part 8 in that, for s 112 to be engaged, there must be a suspected contravention of another provision of the Act. Section 10 provides that it is an offence not to comply with a Ministerial direction (which includes directions under s 7). Thus ss 7, 10 and 112 are related. If a Minister chooses to confer functions on police officers in a direction or order under s 7, the direction may touch on the subject matter of s 112.
The resolution of the question depends on whether s 112 is to be regarded as the exclusive source of police officers' powers to enforce the Act.
I do not regard s 112 as having this effect. It would be odd if the powers of police officers, who are the persons who are generally responsible for investigating (and, in the Local Court, prosecuting) alleged breaches of the laws of New South Wales and enforcing such laws, were limited to the powers in s 112. The Act must be read, not only as a whole, but also in the context of the background of the general law, both statutory law and the common law. Whereas authorised officers under the Act, other than police officers, may have no functions or powers other than those conferred by the Act, the position of police officers is different. The powers and functions of police officers derive from several sources, including the common law, Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), particular powers under legislation such as s 112 of the Act and, where otherwise intra vires, powers conferred by administrative acts (such as warrants or directions under s 7 of the Act) or delegated legislation, such as regulations.
At common law, a police officer has powers which include to effect an arrest in order to prevent an imminent breach of the peace; to take reasonable steps to ensure the safety of persons in his or her custody; to prevent the commission of a crime in certain circumstances; to investigate offences; to assist in bringing prosecutions; and to uphold the law: The Queen v Rogerson (1992) 174 CLR 268 at 283 (Brennan and Toohey JJ); [1992] HCA 25; see also Director of Public Prosecutions v Zierk [2008] VSC 184; (2008) 184 A Crim R 582 at [18] (Warren CJ).
Section 4(1) of LEPRA provides: "Unless this Act otherwise provides expressly or by implication, this Act does not limit - (a) the functions, obligations and liabilities that a police officer has as a constable at common law, or (b) the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property."
Pursuant to s 6(2)(a) of the Police Act 1900 (NSW), the NSW Police Force has the function of "provid[ing] police services for New South Wales". Such services are defined by s 6(3) to include "services by way of prevention or detection of crime" and "the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way."
The Act does not confine the power to commence prosecutions to "authorised officers". Thus, the powers of police officers to commence prosecutions is left undisturbed. Having regard to the general powers of police officers, it is necessarily implied from their power to commence prosecutions that they can also investigate the commission of offences under the Act. Further, s 7 and Part 8 of the Act are to be construed against the background of the general law, which includes the significant role played by the police in enforcing the law and investigating potential breaches of it.
I am not persuaded that the conferral of some functions on police officers in s 112 precludes the conferral of other functions on police officers in directions made under s 7 for a different purpose (namely to deal with a public health risk).
The analysis set out above is consistent with what Beech-Jones CJ at CL said in Kassam at [39]-[40]: the effect of the power under s 7 (which is to give directions by order that deal with public health risks generally) is addressed to a different subject matter than Part 8, being the enforcement of specific matters under the Act.
I note for completeness that the defendant confirmed that it accepted that police officers, when exercising powers under the Act, were bound by LEPRA. In particular, the defendant accepted that Part 15 of LEPRA applied because a request under a public health order made pursuant to s 7 of the Act fell within s 201(1)(f) of LEPRA (the exercise by a police officer of the "power to give or make a direction, requirement or request that a person is required to comply with by law"). Part 15 of LEPRA relevantly contains ss 202 and 203. Section 202 requires police officers to provide certain information when exercising powers which fall within s 201 (evidence that the person is a police officer, the name of the police officer and his or her place of duty, and the reason for the exercise of power). Section 203 requires police officers to give a warning to the person subject to the exercise of the power to, in this case, request evidence, that the person is required by law to comply with the request. Where a request is made to a single person, a police officer's failure to comply with ss 202 and 203 has the effect that the person does not commit an offence of failing to comply with the request made by the police officer.
There is no allegation in the amended summons that any police officer who made a request of the plaintiff either under the Delta Order or the General Order failed to comply with Part 15 of LEPRA.

[23]

The effect of Kassam on the question of the privilege against self-incrimination

As the defendant contended that Beech-Jones CJ at CL had determined the question of the privilege against self-incrimination in Kassam and that I was bound to follow it, it is necessary to address what his Honour said at [71]-[76]: "Privilege Against Self-incrimination 71. The other central contention made by both sets of plaintiffs is that clauses 4.3(3A)(b) and 5.8(3)(b) of Order (No 2) which in some circumstances require a person to produce evidence of their identity, residence and vaccination status, violate their privilege against self-incrimination. The short answer to this contention is that it is a privilege against incrimination and not a privilege against exoneration; i.e. as its name implies the privilege protects a person against the compulsory production by them of evidence that may incriminate them (Baldwin v State of New South Wales [2020] NSWCA 112 at [30]). The privilege does not protect against production of evidence by a person that may exonerate them from a breach of the law. 72 In Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74 at 502, Mason CJ and Toohey J described the scope of the privilege as follows: 'In conformity with that principle, the privilege against self-incrimination protects an accused person who is required by process of law to produce documents which tend to implicate that person in the commission of the offence charged. The privilege likewise protects a person from producing in other proceedings, including civil proceedings, documents which might tend to incriminate that person. In its application to the production of documents, the operation of the privilege is more far reaching in the protection which it gives than in its application to oral evidence. It is one thing to protect a person from testifying to guilt; it is quite another thing to protect a person from the production of documents already in existence which constitute evidence of guilt, especially documents which are in the nature of real evidence. Indeed, the protection afforded by the privilege is now so far reaching that it has been described as protection against being compelled to say anything which "may tend to bring him into the peril and possibility of being convicted as a criminal" Lamb v Munster (1882) 10 QBD 110, per Field J at p.111.) or as protection "against exposure to conviction for a crime" Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR, per Mason ACJ, Wilson and Dawson JJ at p 336). That is because the privilege protects a person from discovering or revealing information which may lead to the discovery of admissible evidence of guilt not in his or her possession or power (…).' (emphasis added) 73 As the plaintiffs argument on this issue was directed to the invalidity of sub‑clauses 4.3(3A)(b) and 5.8(3)(b) of Order (No 2) on the basis that they necessarily violated some fundamental right or freedom, it meant that they were forced to pitch their argument about provisions such as subclause 4.3(3A) or 5.8(3) of Order (No 2) at a high level of generality. Hence, the Kassam plaintiffs postulated a scenario whereby an unvaccinated person who was an authorised worker was, either on leaving an area of concern or entering a building site, requested to produce the 'required evidence'. It was submitted that their privilege against self-incrimination would then be imperilled by the requirement to comply with subclauses 4.3(3A)(b) or 5.8(3)(b) and produce evidence of their name and address, their vaccination status and a permit issued by Service NSW. However, on this argument they could not produce that evidence, specifically the vaccination evidence, and so no question of the production of anything arises. It is true that in those circumstances they may implicate themselves in the sense that they will then be in breach of either clause 4.3(3A) or 5.8(3)(b) and their failure to produce the vaccination evidence might be used against them to prove a breach of sub-clause 4.3(3) or 5.8(1). However, both of those consequences are beyond the reach of the privilege against self-incrimination as they are not consequences of producing incriminating material or potentially incriminating material. 74 As the above passage from EPA v Caltex makes clear, the privilege is concerned with the potential for the material that is produced in compliance with the obligation imposed by law to implicate a person in the commission of an offence. Nothing in the example relied on by the plaintiffs involves the potential for the use of any material that may be produced in compliance with clause 4.3(3) to incriminate anyone. To the contrary, the production of the material would exonerate them of any suspicion that they had breached the direction. 75 It may be that, in a particular case, a person could show that the production of the required evidence might incriminate them in some other offence unrelated to Order (No 2) or [the Act]. It is not worthwhile to speculate about such possible scenarios occurring amongst the millions of people who were affected by Order (No 2). It suffices to state that such a person would have to demonstrate the real tendency for the material to incriminate them and, if the claim is found to be bona fide, a question would then arise as to whether the invocation of the privilege is accommodated by the provision in s 10 for a 'reasonable excuse' as a basis for not complying with a direction given by an order. All this is for another day and another forum. However, it only serves to demonstrate that clauses 4.3(3A)(b) and 5.8(3)(b) of Order (No 2) do not on their face require the production by a person of potentially incriminating material. 76 It has not been established that subclause 4.3(3A)(b) and 5.8(3)(b) of Order (No 2) violate any fundamental right or privilege against self-incrimination which might not be authorised by an order made under s 7(2)."
The clauses referred to in [76] of Kassam provide that authorised workers, when leaving the area of concern, must produce the required evidence (evidence showing the worker's name and place of residence, vaccination status and permit (if required)) for inspection if requested by their employers, the occupier of their workplace, a police officer or an authorised officer (cl 4.3(3A)(b) of the Delta Order) and that persons entering construction sites must produce the required evidence (evidence showing the person's name and place of residence and a permit, vaccination certification and results of a COVID-19 test) if requested by persons belonging to any of those categories of people (cl 5.8(3)(b) of the Delta Order).
I am not persuaded that there is any relevant distinction between the clauses considered in Kassam, which were found not to infringe the privilege against self-incrimination, and those set out in the tables above. In each case, the public health order imposed a general prohibition which was subject to exceptions, which depended on place of residence (of the person and, in some cases, the companion in the motor vehicle), vaccination status and whether the person had a permit or had had a COVID-19 test within the relevant period.
Further, the plaintiff sought to draw a distinction between legislation (such as the Act) and an administrative act (such as the making of public health orders under the Act) to argue that something as serious as compelling members of the public to provide evidence to the police required legislation and not a mere administrative act by a Minister. While this argument has considerable rhetorical force, it cannot be accepted. Parliament has power to abrogate the common law privilege against self-incrimination, expressly or by necessary implication: Sorby v Commonwealth (1983) 152 CLR 281 at 298 (Gibbs CJ); [1983] HCA 10. Parliament must be taken to have intended to confer very substantial power on the Minister under s 7, having regard to the breadth of the provision and the specific contemplation in s 7(3) of the measures which would be authorised under s 7(2), which include isolation of inhabitants of an area and prevention of access to an area. The power under s 7 is of sufficient breadth to authorise the abrogation of the privilege against self-incrimination, at least insofar as has occurred in the present case, by requiring persons to produce evidence in their possession, such as evidence of place of residence, which may incriminate them.
Although, as Beech-Jones CJ at CL observed in Kassam, vaccination evidence is likely to be exonerating (unless double vaccination is required and evidence of only one dose can be produced), other evidence required to be produced may be incriminating. For example, evidence produced by another person in a vehicle may establish that the person is not in the same household as the other persons in the vehicle; or evidence of place of residence may establish that the person is outside a 5km radius of his or her place of residence.
Consistent with the analysis in Grinham set out below and the breadth of s 7, the power in s 7 of the Act authorised such directions.

[24]

Grinham

In, Grinham, reg 137A, which was made under the Transport Act 1930 (NSW), required a person whose vehicle had been stopped by an authorised officer to furnish information to such officer. Regulation 130A prohibited multiple hirings by making it an offence for a driver to permit any person other than the hirer or a person accompanying the hirer to enter the vehicle. Failure to comply with a provision of a regulation resulted in a penalty. An authorised officer observed a taxi in which a person was seated in the front seat next to the driver and which showed an "engaged" sign, stop and collect another person who sat in the back seat. The authorised officer asked the driver whether the man in the front seat was the hirer and when he entered the cab. He also asked why he had allowed the person in the rear seat to enter the cab after it had already been hired. To each of these questions, the driver gave no answer.
Section 262(1) of the Transport Act conferred power on the Governor to make regulations not inconsistent with the Act, prescribing all matters which by the Act were required or permitted to be prescribed or which were necessary or convenient to be prescribed to carry this Act into effect. Section 262(6) provided that any regulation may confer on any officer authorised by the Commissioner for Motor Transport any powers or authority required for the carrying into effect of all or any of the provisions of that or any other regulation. Section 264 conferred power on the Governor to make regulations with respect to specified matters, which included the duties of drivers of public vehicles, the conduct of passengers and drivers of public vehicles and the taking up and setting down of passengers.
In Grinham, the applicant argued that reg 137A was ultra vires the Transport Act. Herron J (Clancy J agreeing) held that reg 137A was valid if the word "information" was read down so as to limit the powers of police or authorised officers to require, and the corresponding obligation of, the owner or driver to furnish information as to matters dealt with in other regulations. Thus, if the only purpose of the officer in seeking information was to obtain oral admissions with a view to prosecuting the driver for breach of the Act or the regulations, such request was not authorised by reg 137A. However, Herron J considered that a person could validly be required to produce a taxi licence, a medical certificate or a daily work card to a police officer on request.
Walsh J said in a separate judgment (with which the other two judges did not express agreement) that the powers in s 262(6) of the Transport Act were administrative powers rather than powers of law enforcement and did not, in any event, abrogate the right to silence. On this basis, his Honour considered reg 137A, in so far as it purported to impose an obligation to furnish information and to make failure to do so an offence, was ultra vires the Act.
I regard the evidence required to be carried by persons engaging in relevant activities away from their places of residence as being in a similar category to the taxi licence, medical certificate or daily work card which, under reg 137A, considered in Grinham, could validly be required to be produced on request without infringing the privilege against self-incrimination. Even if the privilege were otherwise engaged, I consider that it has been abrogated by necessary implication by the Delta Order and the General Order. The direction specifically provides that "required evidence" be carried and produced on request. Such a direction expressly overrides the privilege, just as it overrides the right to freedom of movement (as addressed in Kassam at [9]) and the private right to leave one's own house at will. A request that such evidence be produced is authorised by the public health orders.
Unlike in Grinham, the request by a police officer for "required evidence" under the public health orders is not tantamount to a question, the sole purpose of which is to elicit admissions of criminal conduct. By contrast, the purpose of a request for the evidence set out in the table above is to ascertain whether the person of whom the request is made has a reasonable excuse for being away from home or, having no reasonable excuse, is bound by the prohibition on leaving home. It is analogous to a request to sight a driver's licence since, if the driver can produce the relevant licence, the driver is entitled to drive, if he or she cannot produce the document, there are two possibilities: the driver is licensed but does not have the document or the driver is unlicensed. No issue arises in the present case as to whether further questions (beyond the request for such documentary evidence) can be asked since the challenge in the present case is limited to the validity of the order which provides for the power of a police officer to request "required evidence" and the obligation of the person to provide the evidence in response to such a request.
The plaintiff further submitted, in the alternative, that the Court ought declare, for the purposes of s 10 of the Act, that it is a reasonable excuse not to comply with a direction to produce the required evidence on the grounds that the natural person asserts a right to silence and/or the privilege against self-incrimination. For the reasons given above, I consider that, in respect of requests to provide documentary evidence as specified in the clauses of the orders set out in the tables above, the privilege, to the extent to which it applies, has been abrogated. As Beech-Jones CJ at CL said in Kassam at [75], it is not useful to speculate about possible scenarios that might arise when a police officer makes a request under one of the clauses of the public health orders. Nor ought such matters be determined in the abstract for the reasons I gave in Larter v Hazzard (No 2) [2021] NSWSC 1451 at [102].

Can v State of New South Wales

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (28 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (25)

Cited By (1)