Background

On Thursday 16 September 2021, we filed a summons in the Supreme Court of New South Wales on behalf of our client. The Summons named the State of New South Wales as the Defendant in the proceedings.

The summons challenges the legal validity of several powers that have been given to the NSW Police Force under the current Public Health Order. Broadly, the challenge is in respect of the following police powers:

1. The power to stop a person and ask them to produce their identification in circumstances where police have no basis to suspect that they have breached the public health order.

2. The power to ask for a person’s vaccination status to determine if they are eligible to participate in a public gathering of 5 people.

3. The power to ask a person for their identification to determine whether they are eligible to be in a vehicle with more than one person.

4. The power to ask a person for their vaccination information to determine if they are eligible to leave an Area of Concern for the purpose of attending employment.

5. The power to ask a person to produce evidence of their Covid test if they are leaving Greater Sydney for the purpose of work.

6. The power to ask for identification when a person is leaving Greater Sydney.

7. The power to ask construction workers for vaccination status and evidence of their Covid test.

8. The power to ask a person for identification to determine if they have left their LGA for the purpose of obtaining goods and services.

9. The power to ask a person for identification to determine if they have left their LGA for the purpose of exercise or recreation.

Our client’s challenge also seeks a declaration that these police powers are legally invalid in so far as they have the effect of abrogating a person’s right to silence and right against self-incrimination.

In Australia, people have a right to silence and a right to refrain from saying or doing anything which may incriminate them. These are fundamental protections which are afforded to every person. They have long been held to be central to the administration of justice.

The importance of these right to our justice system was best explained by His Honour Justice McHugh in the High Court case of RPS v R (2000) 199 CLR 620 at [61] - [62] where His Honour said:

“That privilege is one of the bulwarks of liberty. History, and not only the history of totalitarian societies, shows that all too frequently those who have a right to obtain an answer soon believe that they have a right to the answer that they believe should be forthcoming. Because they hold that belief, often they do not hesitate to use physical or psychological means to obtain the answer they want. The privilege against self-incrimination helps to avoid this socially undesirable consequence. … The privilege exists to protect the citizen against official oppression.”

Unfortunately, the effect of the current Public Health Order is that these fundamental rights in many instances seem to have been taken away. Requiring almost every person in the State of New South Wales to potentially be the subject of police interrogation each time they leave home.

 

Why we need your help?

Unlike many other law firms, we have not reached out to the public for funding. We are passionate about the cause as a team, and we are largely willing to work for the very limited funds that we have received. We refuse to ask the public to reach into their pockets to fund the cause.

However, what we do urgently need is your support in signing this petition. The reason we want people to sign this petition is because while we do not want the public to pay for our work, there is potential that if the challenge fails, our client will be liable to pay the State’s legal costs. These costs will be in the thousands and would likely bankrupt our client.

On 16 September 2021, we wrote to the Crown Solicitors Office on behalf of our client and offered the State of New South Wales an agreement whereby neither party would seek their legal costs against the opposing party regardless of the outcome of the matter.

Our basis for making this offer was that this is a matter of public interest, and it is unfair for our 21-year-old client, who is an apprentice builder and has very limited means, to bear the costs of such litigation. In fact, our view was that the potential alone that these powers were unlawful would warrant the finding that this matter is in the public interest.

The State of New South Wales refused our client’s offer. The States view is that our client is litigating this matter for his own interests.

Given that the State of New South Wales has refused our client’s offer, the Court will now have to decide whether to grant our client the protective costs order. This aspect of the case will be heard on 19 October 2021.

What we want to show the Court is that this matter is in the public interest and that there are many people in the public who are concerned about the legal validity of the police powers discussed above.

We are therefore reaching out to the public to evidence this through the signing of this Petition.

 

Checklist before signing the petition:

1. You are a resident of NSW.

2. You are concerned about the legal validity of the police powers referred to above.

3. You are concerned about your right to silence and right against self-incrimination being abrogated by these powers.

4. You would like the Court to determine the legal validity of these powers.