Can v State of New South Wales

The plaintiff sought to challenge the validity of certain public health orders made under the Public Health Act 2010 (NSW) during the COVID-19 pandemic. The dispute involved provisions that authorised police officers to request and require production of evidence from persons of their name and place of residence and vaccination status. The plaintiff, who had neither been charged with nor intended to breach the directions, questioned whether he had standing to challenge the orders. The case was heard in the Supreme Court of New South Wales.

The court had to determine whether the plaintiff had sufficient standing to challenge the public health orders. It examined whether the law interfered with the plaintiff’s private right, irrespective of whether other members of the public had the same right and were similarly affected. The court also considered the implications of the amended section 112 of the Public Health Act, which included police officers as authorised officers able to direct that a person's name and address be provided. Additionally, the court had to address whether the provisions of the orders infringed upon the plaintiff's privilege against self-incrimination and freedom of movement.

In ruling on the matter, the court held that the plaintiff had standing to challenge the orders as they interfered with his private right to leave his home. It noted that section 112 was not the exclusive source of police officers’ powers to enforce the Act, and that such powers must be exercised within the confines of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The court found that the directions to carry and produce evidence on request expressly overridden the privilege against self-incrimination and the right to freedom of movement, similar to the clauses considered in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320. Consequently, the amended summons was dismissed.

The court’s decision clarified the parameters of police officers' powers under the Public Health Act and reinforced the principle that the privilege against self-incrimination and freedom of movement could be overridden by specific directions. The dismissal of the summons meant that the plaintiff’s challenge to the public health orders was not successful.