In Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 (27 February 2024), a decision of Martin SJA in the Queensland Supreme Court, Queensland police and ambulance officers have successfully challenged directions that required them to be vaccinated against COVID-19.  

The court’s role was an exercise in judicial review, that is it was called upon to determine whether the directions were made according to law at the time that they were made. Not whether the decisions were fair to the applicants or the decision the court would have made. The court was reviewing the relevant decision maker’s decision, not substituting its own decision or what the judge would have done if he had been the relevant decision maker.  The ‘legal reasonableness’ or lawful validity of the decision had to be assessed at the time the decision was made and with the material then before the decision maker ([22]-[26]).

Queensland Police

With respect to the decision to make the directions, the applicants relied on the Human Rights Act 2019 (Qld) s 58 which is set out at [66]. The Act says:

(1) It is unlawful for a public entity—

(a) to act or make a decision in a way that is not compatible with human rights; or

(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision…

(5) For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—

(a) identifying the human rights that may be affected by the decision; and

(b) considering whether the decision would be compatible with human rights…

At [67] His Honour said:

Section 58(1) imposes two obligations on the respondent:

(a) Substantive: not to make a decision in a way that is incompatible with human rights: s 58(1)(a); and

(b) Procedural: not to fail to give proper consideration to a relevant human right in making a decision: s 58(1)(b).

With respect to that procedural aspect, the Police Commissioner gave evidence as to the process she followed when making the directions – one, Direction No. 12 on 7 September 2021 and the second, Direction No. 14 on 14 December 2021 – and that she did give consideration to human rights. The judge was not impressed. At [94] he said:

Unfortunately, she [Police Commissioner Carroll] did not appear to have given her evidence much thought before she entered the witness box. Her recollection was poor and she seemed to be unfamiliar with some of the documents which were at the heart of the case.

The Commissioner had a number of documents that she claimed she had considered when making the Determination No. 12 but some of these were received, or written, after the decision had been made so clearly had not been considered at the time.  His Honour said (at [104]):

I find that the Commissioner is mistaken in her recollection and that she could not have considered HRCA No.1 [Human Rights Compatibility Assessment prepared by officers of the Crown Solicitor] before she made the decision to issue Direction No. 12 because she could not have received it before then. HRCA No. 1 contains a footnote referring to a document which was published by the Therapeutic Goods Administration on 2 September 2021. I draw from that that HRCA No. 1 could not have been created until, at the earliest, 2 September 2021. It follows, then, that she could not have complied with s 58(1)(b) with respect to Direction No. 12.

With respect to Direction No. 14 the Commissioner was unable to produce evidence of material she claimed to have relied on when considering the human rights impacts of the declarations. His Honour said (at [120]):

With respect to Direction No. 14, Deputy Commissioner Smith did not prepare any form of written memorandum for the Commissioner’s consideration. Nor, to his knowledge, did anyone else. He did, though, identify the material which he said the Commissioner relied upon in making Direction No. 14. But there was no evidence from the Commissioner as to the evidence upon which she relied.

And, at [127]:

Her evidence was that it was fair to say that she made her decision to issue Direction No. 14 somewhere between 7th and 10th December. That is, her decision was made at least four days before she received HRCA No. 2. It is more likely than not that the Commissioner did not consider the human rights ramifications of Direction No. 14.

At [134]-[137] and [139] His Honour said

The Commissioner’s evidence about whether she gave “proper consideration to a relevant human right in making [the] decision” to issue Direction No 14 was vague and inconclusive. Her evidence about the decision-making processes which led to Direction No 14 was consistent – she was reluctant to commit to having read particular documents, she frequently could not recall how she received information or what the information was, and she frequently evaded these issues by referring in a vague way to briefings, discussions, summaries and the like.

I am not satisfied that the Commissioner has demonstrated that she gave proper consideration to the human rights that might have been affected by her decisions. She could not have seen HRCA No. 1 before making the decision to issue Direction No. 12 and it is more likely than not that she did not receive HRCA No. 2 until after deciding to issue Direction No. 14. Her evidence about considering either HRCA No. 1 or HRCA No. 2 was, at best, inconclusive and, at worst, unreliable.

The Commissioner has failed to demonstrate that, before making either Direction No. 12 or Direction No. 14, she:

(a) understood in general terms which of the rights of the persons affected by the decisions might be relevant and how those rights would be interfered with by the decision;

(b) had seriously turned her mind to the possible impact of the decision on a person’s human rights;

(c) had identified the countervailing interests and obligations; and

(d) had balanced competing private and public interests as part of the exercise.

Further, I do not accept that the Commissioner had:

(a) either identified the human rights that might be affected by the decision; or

(b) considered whether the decision would be compatible with human rights.

…

It follows that, by failing to give proper consideration, the making of each of those decisions was unlawful.

Various other arguments to the effect that the Commissioner did not have the power to make the declarations and that she should have reviewed the decision at some later time and her failure to revoke the declaration was also subject to review, were considered but rejected.

Queensland Ambulance

The power of the police commissioner to issue the directions to the police officers was found in the Police Service Administration Act 1990 (Qld). It was argued that the Director General of Queensland Health had no similar power to direct QAS officers to undergo vaccination.  The Director-General argued the relevant power was foind in the common law power of an employer to give, and the common law duty of an employee to follow, lawful and reasonable directions. He also argued the power was found in the Ambulance Service Act 1991 (Qld) s 13 which is the power to impose conditions on QAS employees.

With respect to the common law power to issue directions, and the common law duty to obey them, His Honour, at [214] cited Dixon J in in R v Darling Island Stevedoring & Lighterage Co Ltd; ex parte Sullivan (1938) 60 CLR 601 who said:

But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.

That is a court could not determine if the direction was ‘reasonable’ without evidence of the employment terms and conditions eg any relevant award.  At [219] Martin SJA said:

The question of “reasonableness” arises in circumstances where I was not directed to any evidence which touched upon:

(a)            any established usages affecting the nature of the employment;

(b)           what, if any, common practices exist; or

(c)            the general provisions of the instrument governing the relationship of the employees covered.

And at [224]-[225]:

In the absence of any evidence about the nature and scope of the employment contract, the respondent cannot establish that the QAS Direction was reasonable.

As the respondent has not demonstrated that the QAS Direction was reasonable in the sense used in Darling Island Stevedoring it follows that the Direction did not fall within the category of directions able to be made pursuant to the implied term in the contracts of employment. It has no force and the applicants are entitled to an injunction restraining the respondent from seeking to take any action upon any alleged contravention of the Direction.

As for the power to make the directions under s 13, Dr Wakefield denied that was the source of the power. The applicants argued s 13 did not give the necessary power. The court said (at [231]):

Where the parties both seek the same result, namely that there was no legislative basis for the QAS Direction – either because it was made pursuant to an implied term or it was beyond any statutory power – it is not for the court to search for some saving statute.

If everyone agreed s 13 was not the statutory source of power the court did not have to find another statute to justify the order.

Even if the decision was made under the common law of employment, Dr Wakefield as a ‘public entity’ still had to consider the human rights implications ([234]). In making the direction, Dr Wakefield ticked a box marked ‘approved’ and signed a briefing note prepared by Theresa Hodges – the Chief Human Resources Officer, Corporate Services Division, Queensland Health ([242]-[244]).  The applicant argued that there was no evidence that Dr Wakefield had read or considered the details of the briefing note. The court rejected that argument. At [248] Martin SJA said:

For Dr Wakefield it was submitted that it was appropriate to infer, in the conventional way, that he had read and considered the material briefed to him and decided in accordance with the recommendations by indicating his approval, and signing the briefing note accordingly. In the absence of any evidence to the contrary, that is an inference I am prepared to draw.

Further (at [265]):

The Briefing Note contains a detailed Human Rights Compatibility Assessment. That assessment addresses both of the requirements of s 58(1). It sufficiently demonstrates that proper consideration was given to the relevant human rights affected by the decision. It identifies them. And, it considers whether the decision would be compatible with human rights.

Outcome

The directions issued to QPS and QAS were both invalid but for different reasons.

The QPS Commissioner failed to give proper consideration to human rights that would be affected by the direction as she was required to do by the Human Rights Act 2019 (Qld) ([266]).

The Director General of Queensland Health had not established that the direction was ‘reasonable’ in the context of the employment arrangements for QAS ([267]).

Rights affected

The applicants alleged that many of their rights were affected by the directions. His Honour said (at [278]) ‘The applicants have been generous and imaginative in their assessment of the number of rights said to have been limited’.  His Honour then went through the alleged infringed rights and found that the directions did not infringe the protected right to:

  • Recognition and equality before the law including a right to be free of discrimination on the basis of ‘political belief or activity’ ([287]-[299]);
  • Life ([300]-[307]);
  • Freedom of thought, conscience, religion and belief ([334]-[353]);
  • To take part in public life ([354]-[356]);
  • Privacy and reputation ([357]-[371]);
  • Liberty and security ([372]-[379]) ‘The reliance on this section by the various applicants was, at best, tentative. The connection between this section and the requirements of the Directions is not obvious.’

The court found the directions did limit the following protected right:

  • Protection from torture and cruel, inhuman or degrading treatment which includes a right to be free from medical treatment ‘without the person’s full, free and informed consent’ ([308]-[333]).

In this case the court accepted arguments that had been rejected elsewhere in particular that the compulsion to get vaccinated or lose one’s job meant that the decision was not a free decision or free consent contrary to s 17(c) of the Human Rights Act.  This was contrary to the decision in Kassam v Hazzard (discussed in my post Requiring COVID vaccines for emergency workers (April 1, 2022)).  His Honour distinguished Kassam’s case on the basis that the NSW court was considering the common law whereas the Queensland court had to consider the Queensland Human Rights legislation (see [315]).  At [333] Martin SJA said:

While acknowledging that consent is often accompanied by some form of pressure, where a person’s livelihood can be put at serious risk if consent is not given then that is sufficient to peel “free” away from “full, free and informed”.

At [429] His Honour said:

As I have found that Direction No. 14 and the QAS Direction limited the human rights referred to in s 17(c) of the HRA, I must consider whether that limitation is reasonable and can be demonstrably justified.

Human rights can be limited

Some human rights, can be limited where that is both reasonable and justifiable (Human Rights Act s 13) but some can never be limited. In making an assessment whether the limitation was lawful the court has to consider the nature of the right involved, the link between the limitation and the purpose of the limitation, alternatives to achieve the same purpose and the importance of advancing human rights.

Whether the limitation would achieve its stated purpose of reducing the risk of, but not preventing COVID infection the court said the decision makers had to consider what alternatives were available. Given that some people could get an exemption and still work there were alternatives (see [441]-[449]). At [451]-[452] His Honour said:

Neither the Commissioner nor Dr Wakefield gave close attention to the possible range of solutions. Each was presented with a proposal for mandatory vaccination with little in the way of well-developed critiques of alternative means of reducing illness and infection.

While there were differences in expression by Associate Professor Seale and Professor Griffin on this topic, the balance of their evidence (which on this point I prefer) was that the alternatives to mandatory vaccination would not achieve the same purpose.

That is there were alternatives, the decision makers were not given ‘well developed’ alternatives and did not give detailed consideration to those alternatives but the evidence was that the alternatives would not achieve the same purpose as the mandatory vaccination requirements.

Ultimately the court held that although the directions limited a protected human right, that limitation was ‘demonstrably justified in the terms of s 13.’

Conclusion

At [461]-[462] His Honour said:

I have not held that the QPS Directions and the QAS Direction were invalid, rather I have held that they were unlawful. As each direction has been revoked, the remedies available are confined.

An order setting aside or quashing the legal effects of the directions is not appropriate.

By unlawful he does not mean illegal or criminal, but they were not made according to law. The Police Commissioner did not consider the Human Rights implications as she was obliged to do; the Director-General of Health did not establish that the directions were ‘reasonable’ in the broader context of employment within QAS.

At the time the matter came before the court the relevant directions had all been withdrawn. The court therefore could not, and did not need to, make an order terminating the directions.  Martin SJA noted that it was theoretically possible that QAS or QPS would still seek to take disciplinary action against a member who had not complied with their directions when they were in place. Whilst this would be ‘unusual’ it ‘remains a possibility’ so he would make orders to prohibit any further action to enforce the directions.

There are no orders with respect to employees who may have been disadvantaged by the directions for example those who lost their job for non-compliance. As His Honour said his finding was that the orders were unlawfully made, not that they were ‘invalid’. The inference is that they were effective whilst they were in place. If they were still in place the court would order their withdrawal but as they are no longer in place that is not necessary. The orders are that the QAS and QPS can take no further action against the applicant employees who refused to be vaccinated but there is no order to allow former employees to be reemployed by either service.  

Discussion (added 28/2/2024)

Apart from the impact on the applicants, and perhaps on people who were disciplined for failure to comply with these directions, this judgment will have little practical effect.

The court found that the two directions were not lawfully made. As the judge noted there were two requirements. The first was procedural – did the Commissioner consider the impact of the direction on human rights? The second proportional, was any limitation reasonably necessary and proportionate to the purpose to be achieved.

With respect to the police, the court found that the Commissioner did not consider the human rights issues as required by the Act and therefore the direction was not lawfully made.

The Commissioner could not point to any time when she had considered the human rights issues. She said she was getting briefed and information all the time and these matters were discussed so she had considered them but the court was not persuaded by that evidence. In the affidavits filed in court she included a letter that she herself had written and an advice that had to have been received after the direction was made.  The court concluded that she had not met the requirement to consider the impact on human rights.

That is an important lesson for people making decisions under statute that require things to be considered – make sure you document the decision-making process. This was not done so the evidence did not support the assertion that she had considered the human rights issues.

Had the Commissioner me the procedural requirement, the court was satisfied that the directions were a reasonable response to the emergency ([457]).

The balancing which needs to be undertaken with respect to those and the other matters referred to above is complicated by the fact that these directions were given in what was, by any measure, an emergency. It was further complicated by the fact that, at the time of giving the directions, the knowledge available about the virus, its variants, its virulence, and its transmissibility was limited and being added to on an almost daily basis…

There is no formula which can be used to consider this balance. But, having taken into account the matters argued by the parties, I am not satisfied that the balance is in favour of the applicants and so I conclude that the limit imposed on s 17(c) has been demonstrably justified in the terms of s 13.

With respect to the ambulance service the court found that the Director General did consider the human rights issues as he was required to do. The problem for the Director General was that he argued that the directions were authorised by the common law. The court did not say he was right, or wrong, only that if they were authorised by the common law, they had to be reasonable. To judge whether they were reasonable the court need further evidence about the employment and work conditions in QAS. That evidence was not before the court so that could not be determined.

Perhaps the directions could have been made under s 13 of the Ambulance Service Act but the Director-General specifically argued that he was not relying on that section and the applicants said he could not rely on that section. Given neither side wanted to argue s 13 was the source of the authority, the Court did not have to decide the matter, nor did it have to look for any other source of power.  The Director General relied on the common law but did not bring sufficient evidence to show that in the context of employment in QAS it was a ‘reasonable’ direction. 

The decisions turned on the evidence. The Commissioner could not point to evidence to show she had considered the human rights issues and the evidence she claimed to rely on clearly could not have been before her when she made the decision so the court inferred that she had not done what she needed to do.  A procedural error albeit a very important error.

The Director-General of Health did not bring sufficient evidence to contextualise the directions and so it could not be shown that they were a ‘reasonable’ direction to QAS employees.

Had the relevant evidence of procedural compliance been there, the directions would have stood as a reasonable and proportionate derogation of human rights to meet ‘what was, by any measure, an emergency’.

The court did not rule that COVID vaccine mandates were unreasonable, that COVID vaccines were not effective or the like. In fact the court accepted the expert evidence that vaccines were the most effective way to manage the pandemic in the workplace (see [444]-[445]).

The outcome of this case will have little bearing for others except perhaps those who were dismissed for failing to comply with these directions. It will not affect those in other jurisdictions, nor will it affect people subject to any current vaccination requirements.

As a precedent it reinforces the need to keep good records when making important decisions.  That is probably of more importance to incident controllers at the next major bushfire than to paramedics or police still wanting to avoid vaccinations.

The one, significant aspect of the decision that may have ramifications elsewhere is the finding that the directions did infringe the right not to be subject to medical treatment without ‘full, free and informed consent’.  That was a significant finding and different to findings made in Victoria, NSW and the UK.

The judge noted that the NSW decision (Kassam and Henry v Hazzard [2021] NSWSC 1320) was dealing with the ‘the common law principles concerning the offence of battery and the common law approach to consent. The test in s 17(c) is full and free, as well as informed, consent’.  He cited Harding v Sutton [2021] VSC 741, an application for an injunction to stop enforcement of a vaccine mandate pending a full hearing, an application which was rejected. In that case Richards J said there was an arguable case that the mandate restricted the right guaranteed by s 10(c) of the Victorian Charter not to be subjected to medical treatment without their ‘full, free and informed consent’. Richards J said ‘It is arguable that the concept of consent at common law is narrower than the ‘full, free and informed consent’ to medical treatment that is contemplated by s 10(c) of the [Victorian] Charter.’

At [332] of the Queensland case, Martin SJA said:

The legislature has, by inserting the words “full, free and informed” before “consent”, stripped away as many burdens as possible from the meaning of “consent”. While acknowledging that consent is often accompanied by some form of pressure, where a person’s livelihood can be put at serious risk if consent is not given then that is sufficient to peel “free” away from “full, free and informed”.

The outcome depended on those words in the Act, but in terms of future impact of this decision it does, no doubt, open the door for further discussion on whether consent at common law has to be ‘informed’, which can include being informed that the consequence of not accepting the treatment is loss of employment, or must be ‘full, free and informed’.

The ‘”real world” effect of this decision on those who declined to be vaccinated’ (see comments, below) is not much. It suggests that there may be a legal difference between ‘informed consent’ and ‘full, free and informed consent’ that could be the subject of further litigation.   The court continued to reject most of the claims of human rights abuses raised by the litigants. The outcome was due to procedural or evidentiary defects rather than any finding as to the value of vaccines or the nature of COVID.

Whilst a win is a win, and these parties did win in particular because the Police Commissioner did not properly consider matters she was required to consider, it is not a determination that vaccines are not effective or that COVID did not and does not present a public health emergency.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.