Update 11 Oct '21: The information we received following our GIPA requested was reassuring. However, we remain concerned: in the context of a public health emergency, it's vital that people do not fear any repercussions for telling the truth if this might incriminate them. We wrote again to the Commissioner noting that Police appear to have exercised restraint but also noting our ongoing concerns. We called for:
- The Public Health Orders to be amended to include a derivative use immunity to protect people who provide information or evidence to Police in the course of their enforcing the Public health Orders.
Confirmation that information transferred to another agency because it is ‘necessary to do so for the purposes of protecting the health or welfare of members of the public during the COVID‐19 pandemic’ would not include information transferred to Police with the purpose of issuing a Penalty Infringement Notice or Court Attendance Notice.
Update 23 Aug '21: the Police Commissioner has responded to our letter, suggesting that we make a GIPA request for the information we requested, so that's what we've done. Stay tuned for the outcome.
NSWCCL is investigating concerns that a recent health order appears to remove our common law privilege against self-incrimination. We have written to the Police Commissioner to seek more information about what's happening on the ground in order to develop our response.
The health order
Our concerns relate to Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021 as amended to commence at 5pm on 7 August 2021, made by Minister Hazzard under s. 7 of the Public Health Act 2010 (PHA).
Clauses 24AD(4) and 24D(1) compel individuals to produce material for inspection by police, when requested to do so. Clauses 24AD(5) and 24D(2) require that the individual tell the truth when responding to any request from police to provide such information. Failure to comply with an Order made under s. 7 of the PHA is an offence, punishable by fine or imprisonment, under s. 10 of the PHA.
Our privilege against self-incrimination
Common law is a body of unwritten laws based on legal precedents established by the courts. The common law privilege against self-incrimination is one aspect of the right to silence; in 2004 the Full Federal Court explained it as:
"The privilege is that a person (not company) is not bound to answer any question or produce any document if the answer or the document would expose, or would have a tendency to expose, the person to conviction for a crime."1
In our initial letter to the Police Commissioner, we seek information about how often police have issued directives under the sections listed above, and whether this has led to any Court Attendance Notices being issued.
- Privilege against self incrimination: A common law right Australian Law Reform Commission
- Our original letter dated 14 August
- Our followup letter dated 11 October
1 Griffin v Pantzer (2004) 137 FCR 209,  (Allsop J).