Can v State of New South Wales

By amended summons filed on 15 October 2021, Ibrahim Can seeks declaratory relief against the State of New South Wales (the defendant), regarding the effect of two public health orders made under s 7 of the Public Health Act 2010 (NSW) (the Act) to address the risk to public health arising from the COIVD-19 pandemic (the pandemic). The plaintiff challenges the public health orders in so far as they purport to authorise police officers to request and require the production of evidence from persons of their name and place of residence and vaccination status, irrespective of whether an offence is suspected. He submits that the orders are ultra vires the Act and, further, that they unlawfully infringe the privilege against self-incrimination.

The defendant opposes the relief claimed on the ground that the plaintiff lacks standing to apply for the relief. Further, the defendant submits that the public health orders validly authorise the police powers which are challenged by the plaintiff and that, if there is any interference with the privilege against self-incrimination, the privilege has been validly abrogated by the public health orders.

All references to legislation in these reasons are references to the Act, unless otherwise stated.

Section 7 of the Act, which is considered further below, authorises the Minister for Health and Medical Research (the Minister) to take such action and, by order, give such directions as the Minister considers necessary to deal with a risk to public health and its possible consequences.

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.

On 3 October 2021, pursuant to s 7 of the Act, the Minister made Public Health (COVID-19 General) Order 2021 (NSW) (the General Order), which took effect from 11 October 2021. Clause 7.2(a) of the General Order repealed the Delta Order. The General Order has been amended several times since it was made. The plaintiff challenged the General Order in the form in which it was originally made.

The General Order imposes limits on the freedom of movement of unvaccinated adults and provides for the enforcement of those limits.

For the purposes of addressing the plaintiff’s challenge to the orders, it is not necessary to set out the orders in full, since they follow a similar format. The tables set out below sufficiently identify the clause, the requirement and to whom the information or evidence must be provided on request.

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:

Section 7 of the Act relevantly provides:

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:

Section 111 deals with a requirement to provide information and documents as follows:

Section 112 provides:

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:

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.

Mr Kirk SC, who appeared on behalf of the defendant with Mr (Thomas) Prince and Mr Reynolds, contended that the plaintiff lacked standing to bring the proceedings. In the alternative, he argued that the proceedings lacked utility since the Delta Order was no longer in force and the General Order has been amended since it came into force.

In support of the submission on standing, Mr Kirk argued that where the plaintiff had never been charged with an offence of breaching a direction in either the Delta Order or the General Order and had no intention of breaching such a direction, he had no relevant interest in the determination of the questions raised, since his interest was no higher than that of any member of the public who is affected by the orders.

Mr (Shane) Prince SC, who appeared on behalf of the plaintiff with Mr Ahmad, contended that the plaintiff had standing and relied on Cotterill v Romanes [2021] VSC 498 (Cotterill). He argued that a flexible approach to standing was warranted as the public health orders were subordinate instruments, made solely by the Minister, which had substantial consequences for someone such as the plaintiff. Mr Prince accepted that the plaintiff has received no infringement notice, penalty notice or court attendance notice under either the Delta Order or the General Order, and does not propose to breach the law. However, the plaintiff submitted that he has a sufficient interest as he has been asked by police officers on at least five occasions to present evidence of identification and vaccination status.

In response, the defendant submitted that Cotterill was no more than an example of a case where a plaintiff had standing because she had been issued with an infringement notice and continued to have standing although the infringement notice was withdrawn.

The question of standing must be determined at the outset. A party who seeks a declaration that a law is invalid must have a sufficient interest in having his or her legal position clarified: Pharmaceutical Society of Great Britain v Dickson [1970] AC 403 at 433, cited with approval in Croome v Tasmania (1997) 191 CLR 119 at 127 (Brennan CJ, Dawson and Toohey JJ); [1997] HCA 5 (Croome). What constitutes a “sufficient interest” arose in Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493; [1980] HCA 53 (ACF). Gibbs J said, at 530:

The parties cited authorities on standing generally and also authorities which arose in the context of federal jurisdiction which requires there to be a “matter” before a court exercising federal jurisdiction has such jurisdiction. This Court is not exercising federal jurisdiction in the present case (although it does in other circumstances). Thus, to the extent to which the requirements for standing in a federal context are greater than in a State context, the federal requirements are not applicable in the present case.

In Croome, the High Court was unanimous that the plaintiffs had standing to challenge the validity of Tasmanian laws criminalising homosexuality, but divided on the appropriate analysis. Brennan CJ, Dawson and Toohey JJ held that the plaintiffs had standing because their admitted conduct rendered them liable to prosecution and subsequent punishment, although they had not been charged. Gaudron, McHugh and Gummow JJ held that the plaintiffs had standing because the laws imposed duties which attached liability to prosecution. It was sufficient that their liberty was constrained by the proscriptions in the law.

In Kuczborski v The State of Queensland (2014) 254 CLR 51; [2014] HCA 46 (Kuczborski), the validity of certain provisions of the Vicious Lawless Association Disestablishment Act 2013 (Qld) was challenged. The provisions sought to be impugned were: first, provisions which imposed more serious penalties for existing offences of being a member of a specified gang; second, a new offence of participating in a criminal organisation which proscribed otherwise lawful conduct if carried out by individuals who are participants in a criminal organisation; and, third, changes in the Bail Act 1980 (Qld) to change the presumption into one against the grant of bail. The Court held that the plaintiff had standing to challenge the new offences but not the provisions altering the penalties for existing offences or the changes to the presumption regarding bail.

In Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 (Brown), the plaintiffs were charged with offences under the Workplaces (Protection from Protesters) Act 2014 (Tas). They brought proceedings in the original jurisdiction of the High Court to challenge the validity of that Act. The charges were withdrawn after the proceedings had commenced. The defendant conceded that the plaintiffs had standing.

In Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; (2020) 94 ALJR 502, the first plaintiff wrote an article which was published by the second plaintiff. The publication contained an image of a document entitled, “Ministerial Submission.” The defendant obtained a search warrant to search the plaintiffs’ premises. Section 79(3) of the Crimes Act 1914 (Cth) (before its repeal) criminalised disclosure of prescribed documents or articles. The High Court held that the warrant was invalid because it did not specify the offence with reasonable precision as it misstated the substance of s 79(3). The Court (Kiefel, Bell and Keane JJ, Gordon J agreeing) held that the plaintiffs had no standing to challenge the validity of s 79(3) because they had not been charged with an offence under s 79(3) and did not say that their past conduct had contravened s 79(3). The Court distinguished Croome on the basis that although the plaintiffs in Croome had not been charged, the law criminalised admitted conduct and affected their freedom of action.

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:

The following propositions emerge from the authorities:

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.

Before addressing the arguments put on behalf of the plaintiff, I note that the plaintiff did not argue that the Minister did not have reasonable grounds under s 7(1) of the Act for considering that a situation has arisen that is, or is likely to be, a risk to public health. Nor did the plaintiff argue that it was not open to the Minister to consider it necessary to make the Delta Order or the General Order. This case is therefore to be distinguished from other challenges to public health orders made in response to the pandemic which have been determined by this Court: Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (Beech-Jones CJ at CL) (Kassam) and Larter v Hazzard (No 2) [2021] NSWSC 1451 (myself).

The plaintiff submitted that the present argument had not been put to Beech-Jones CJ at CL in Kassam and that his Honour had not actually addressed the requirement to produce identification evidence (as opposed to vaccination evidence). He contended, accordingly, that Kassam had not decided the point he raised adversely to him.

The plaintiff relied on the principle in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9 (Anthony Hordern) to argue that s 7, which is expressed as a broad power, ought be read down in order to give effect to the limited enforcement powers in Part 8 because they dealt with the same subject matter: the enforcement role of police officers.

The plaintiff contended that Parliament had evinced an intention that the only enforcement powers which would be conferred on police officers by, or under, the Act were those in Part 8 conferred by ss 110, 111, 112, 113 and 114 and that it was significant that police officers were only authorised officers pursuant to s 112. He argued that, in light of a legislative intention, expressed by negative implication in the Act, to confine the enforcement powers of police officers to those in s 112, the power to make directions under s 7 ought be read as prohibiting the Minister from including enforcement powers in the orders and directions made pursuant to s 7(2).

The plaintiff relied on Ex parte Grinham; Re Sneddon [1961] SR (NSW) 862 (Grinham) in support of the proposition that a regulation will be invalid if it purports to abrogate the privilege against self-incrimination.

The defendant submitted that there was no reason to read down the broad terms of s 7 (which permitted urgent action to be taken by the Minister to address risks to public health) by reference to the provisions of Part 8, which applied at any time to enforce any provision of the Act.

The defendant argued that Beech-Jones CJ at CL in Kassam had determined that the privilege against self-incrimination was not engaged when there was a restriction of movement which applied unless the person produced medical evidence (proof of vaccination or a certificate of medical contraindication) because the medical evidence “exonerated” the holder from the prohibition. The defendant also submitted that Grinham (considered further below) supported the proposition that being required to produce a document, such as a driver’s licence, which contained the name and address of the holder, was not regarded as attracting the privilege against self-incrimination. The defendant contended that requirements imposed on a person by the Delta Order and the General Order to provide evidence to establish vaccination status, name and place of residence were analogous to the requirement for the provision of a driver’s licence in the context of the Transport Act 1930 (NSW). The defendant submitted that, in each case, the document proved that the holder had a licence to do the relevant activity which was otherwise prohibited (driving a taxi in Grinham, or, in the present case, being on a construction site, being within a 5km radius of one’s residence for exercise or to obtain goods or services, or being with another person in a vehicle).

I propose to address the question of construction of s 7 and the enforcement provisions in Part 8 before turning to the questions whether Kassam has determined the outcome of the plaintiff’s challenge and whether the privilege against self-incrimination arises in this context and, if so, whether it has been abrogated.

The so-called “Anthony Hordern principle” derives from the following passage from Anthony Hordern at 7 (Gavan Duffy CJ and Dixon J):

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:

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.

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]:

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.

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].

For the reasons given above, I am not persuaded that the plaintiff has made out any of his claims for relief. His grievance with the police for what he experienced as harassment and his experience of a police officer who was ignorant of the law which he or she was required to enforce does not entitle him to any of the relief sought. Police officers were entitled, under the applicable provisions of the public health orders addressed above, to require him to produce evidence of his name and place of residence and to require another person who was in a motor vehicle with him (in this case, his twin brother, who shared the plaintiff’s place of residence) to do the same. His privilege against self-incrimination was not infringed, or, if infringed, it had been abrogated by the terms of the public health orders, which were valid under s 7.

The plaintiff filed a notice of motion that his costs be limited. The motion was withdrawn. I infer that the parties have come to an agreement about costs. However, for abundant caution, I will make provision for an application for costs to be made, if no such agreement has been reached.

For the reasons given above, I make the following orders: