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Supreme Court judgment on vaccination directions issued to Qld Police and Qld Ambulance officers

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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

Summary

On 27 February 2024, Justice Martin delivered judgment in three judicial review proceedings involving challenges to vaccination directions issued by the Commissioner of the Queensland Police Service (QPS) (Johnston and Sutton) and the Director-General of Queensland Health (Witthahn). The proceedings were heard together.

His Honour:

  • held that the QPS Commissioner had failed to give proper consideration to human rights relevant to decisions to issue two vaccination directions and declared the directions unlawful under s 58 of the Human Rights Act 2019 (the HR Act).
  • held that the direction issued by the Queensland Health Director-General to Queensland Ambulance Service (QAS) officers did not fall within the category of directions able to be made pursuant to the implied term of the Applicants’ contracts of employment because there was an absence of evidence about the nature and scope of the employment contracts.  QAS was therefore unable to establish that the direction was reasonable. His Honour declared the direction was of no effect.
  • made orders restraining both QPS and QAS from taking any steps with respect to enforcement of the directions and taking any disciplinary proceedings against any of the Applicants based on the requirements of the relevant directions.

The QPS directions

In the Johnston and Sutton matters, the Court made the following orders:

  1. The Court declares that Instrument of Commissioner’s Direction No. 12 issued on 7 September 2021 and Instrument of Commissioner’s Direction No. 14 issued on 14 December 2021 were unlawful under s 58 of the Human Rights Act 2019.
  2. The Commissioner of Police be, and is, restrained from:
    1. taking any steps with respect to enforcement of the QPS Directions; and
    2. taking any disciplinary proceedings against any of the Applicants based upon the requirements of the QPS Directions

Reasons

Justice Martin found at [136] that the Commissioner had failed to demonstrate that before making either Direction No. 12 or Direction No. 14 (the QPS Directions) she:

a. understood in general terms which of the rights of the persons affected by the decisions
b. might be relevant and how those rights would be interfered with by the decision;
c. had seriously turned her mind to the possible impact of the decision on a person’s human rights;
d. had identified the countervailing interests and obligations; and
e. had balanced competing private and public interests as part of the exercise.

Further, his Honour did not accept at [137] 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.

Accordingly, his Honour concluded that the Commissioner had failed to give proper consideration to human rights within the meaning of s 58(1)(b) of the HR Act and her decisions to issue the QPS Directions were therefore ‘unlawful’ within the meaning of s 58(1) of the HR Act.

Notwithstanding his Honour’s conclusion that the Commissioner had failed to give proper consideration to human rights, his Honour otherwise rejected the Applicants’ arguments, finding that:

  1. Section 4.9 of the Police Service Administration Act 1990 is broad enough to support a direction of the kind impugned in this proceeding, provided the making of such a direction is consistent with the Commissioner’s obligations under the HR Act: [149]-[199] and [460]
  2. The directions only limited the right in s 17(c) of the HR Act: [333]. Section 17(c) relevantly provides that a person must not be subjected to medical treatment without the person’s full, free and informed consent.
  3. That limit was demonstrably justified (because the alternatives to mandatory vaccination would not achieve the same purpose and the directions were given in what was an emergency), and the directions were therefore substantively compatible with human rights: [459]
  4. Because the directions were in substance compatible with human rights, the decision to promulgate those directions was not ‘unreasonable’ under the JR Act: [460]

The QAS direction

In the Witthahn matter, the Court made the following orders:

  1. The Court declares that Employee COVID-19 Vaccination Requirements Human Resources Policy is of no effect.
  2. The Director-General of Queensland Health be, and is, restrained from:

(a) taking any steps with respect to enforcement of the QAS Direction; and

(b) taking any disciplinary proceedings against any of the Applicants based upon the requirements of the QAS Direction.

Reasons

His Honour held that the QAS Direction did not fall within the category of directions able to be made pursuant to the implied term in the Applicants’ contracts of employment because there was an absence of evidence about the nature and scope of the employment contracts. Therefore, QAS could not establish that the direction was reasonable: [200]-[224].  It followed therefore that the direction had no force, and the Applicants were entitled to an injunction restraining QAS from seeking to take any action upon any alleged contravention of the Direction: [225].

The Applicants contended that an adverse inference should be drawn against QAS because the Director-General did not give evidence. His Honour declined to draw the inference advanced by the Applicants, instead his Honour inferred, in the conventional way, that the Director-General had read and considered the material briefed to him: [246]-[252].

His Honour concluded that parts of the briefing note were not supported by the articles referred to in it but that it sufficiently demonstrated that proper consideration was given to the relevant human rights affected by the decision: [253]-[264] and [265].

Similar to the QPS Directions, his Honour concluded that only the right in s 17(c) of the HR Act was limited by the QAS Direction and none of the other rights relied upon by the Applicants were in-fact limited: [266]-[379] and [308]-[333].

As with the QPS Direction, his Honour held that the limit imposed on s 17(c) was demonstrably justified and the Director-General’s decision was not unreasonable: [459]-[460]

Key takeaways

  • It is imperative that decision makers themselves consider human rights and record that consideration at the time the decision is made.
  • The decisions were substantively compatible with human rights but a failure to comply with the procedural limb is sufficient to result in a declaration of unlawfulness.
  • His Honour did not declare that QPS Directions were invalid, and expressly disavowed the Court’s power to do so.
  • The case highlights why it is so important to ensure that your decision-making process is robust and that you keep accurate records of what you do when making a decision or assisting someone else to make a decision.