Can v State of New South Wales [2021] NSWSC 1480

Supreme Court New South Wales

Medium Neutral Citation: Can v State of New South Wales [2021] NSWSC 1480 Hearing dates: 5 November 2021 Decision date: 17 November 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Dismiss the amended summons filed on 15 October 2021. (2) If any party seeks an order for costs, such application to be made in writing to my Associate within seven days hereof. Catchwords: ADMINISTRATIVE LAW — Standing — plaintiff sought to challenge public health orders — whether the plaintiff had standing where he had never been charged with and had no intention of breaching directions made under the public health orders — consideration of propositions emerging from authorities on "sufficient interest" — the plaintiff has standing where the law interferes with his private right irrespective of whether other members of the public have the same right and are similarly affected — provisions of the public health orders interfere with the plaintiff's right to leave his home PUBLIC HEALTH ACT — COVID-19 — public health orders made under s 7 of the Public Health Act 2010 (NSW) — public health orders purporting to authorise police officers to request and require production of evidence from persons of their name and place of residence and vaccination status — amendment to s 112 to include police officers as authorised officers able to direct that a person's name and address be provided — s 112 is not to be regarded as the exclusive source of police officers' powers to enforce the Act — s 7 and Part 8 of the Act must be construed in the context of the background of statutory and common law — police officers exercising powers under the Act are bound by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) — consideration of the effect of Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 on the question of privilege against self-incrimination — no relevant distinction between the clauses considered in Kassam, which were found not to infringe the privilege against self-incrimination, and those impugned in this case — directions specifically providing that "required evidence" be carried and produced on request expressly overrides the privilege and the right to freedom of movement —amended summons dismissed Legislation Cited: Bail Act 1980 (Qld) COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) Crimes Act 1914 (Cth), s 79 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 4, 201, 202, 203 Police Act 1900 (NSW), s 6 Public Health Act 2010 (NSW), ss 7, 10, 110, 111, 112, 113, 114, 126 Public Health and Wellbeing Act 2008 (Vic), s 203 Stay at Home Directions (Restricted Areas) (No 14) (Vic) Transport Act 1930 (NSW), ss 262, 264 Vicious Lawless Association Disestablishment Act 2013 (Qld) Workplaces (Protection from Protesters) Act 2014 (Tas) Cases Cited: Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [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 Grinham; Re Sneddon [1961] SR (NSW) 862 Kassam v Hazzard; Henry v Hazzard [2021] 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)