COVID-19 vaccination directions issued to Queensland police and ambulance services ruled unlawful
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
Johnston & Ors v Carroll (APM, Commissioner of the Queensland Police Service) & Anor; Ishiyama & Ors v Aitken & Ors; Hunt & Ors v Gerrard & Anor [2024] QSC 6
Summary
The Supreme Court of Queensland has found that directions issued by the Commissioner of the Queensland Police Service and the Director General of Queensland Health to their employees were unlawful under section 58 of the Human Rights Act 2019 (Qld) ('HRA') or of no effect. Injunctions were granted to restrain the enforcement of the directions. In a separate proceeding, applicants who challenged the validity of directions issued by the Chief Health Officer were found to not have standing and the application was consequently dismissed.
This summary focuses on the aspects of the judgments that relate to the HRA.
Facts
Between 2021 and 2022, the Queensland government and the departmental heads of the Queensland police and ambulance services issued directions requiring workers to be vaccinated or provide proof of a relevant exemption in response to the COVID-19 pandemic which was declared in 2020.
There were three sets of directions issued by the Chief Health Officer, Commissioner of Police and Director General of Queensland Health. Directions issued by the Chief Health Officer were challenged by police officers, teachers or persons and corporations involved in the hospitality industry. Directions issued by the Commissioner of Police were challenged by police officers and other staff of the Queensland Police Service. The direction issued by the Director General of Queensland Health was challenged by ambulance service staff.
Martin SJA delivered final judgment regarding the validity of directions issued by the Commissioner of Police and the Director General of Queensland Health in Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor [2024] QSC 2. Separately, in Johnston & Ors v Carroll (APM, Commissioner of the Queensland Police Service) & Anor; Ishiyama & Ors v Aitken & Ors; Hunt & Ors v Gerrard & Anor [2024] QSC 6, and following an interlocutory application by the Chief Health Officer, Martin SJA found that the applicants who challenged the directions issued by the Chief Health Officer did not have standing and their case was consequently dismissed.
1. Directions issued by the Chief Health Officer
The Chief Health Officer issued a direction on 11 December 2021 that "workers must not enter and remain in, work in, or provide services in a high-risk setting unless the worker had, subject to certain exemptions:
received the first dose of a COVID-19 vaccine by 17 December 2021;
received the prescribed number of doses of a COVID-19 vaccine by 11:59pm on 23 January 2022; and
shown evidence of having received the COVID-19 vaccine to their employer or the responsible person" (see [2024] QSC 6 at [4]).
The 11 December 2021 direction was superseded by a further direction on 4 February 2022 that required workers to be "fully vaccinated" (see [2024] QSC 6 at [5]). There were also additional directions targeting the general public which required that, amongst other things, a person could only enter and remain at particular businesses, activities or undertakings where the person was fully vaccinated against COVID-19 and provided proof or had a relevant exemption (see [2024] QSC 6 at [7]). Operators of relevant businesses and activities (including educational centres, corrective services facilities, police watch houses, youth detention centres and airports) were required to ensure that visitors were complying with these entry requirements. Police officers, teachers or persons and corporations involved in the hospitality industry challenged the validity of all the above directions made by the Chief Health Officer (the 'CHO Directions') and sought orders including the quashing or setting aside of the CHO Directions and restraining their enforcement under the inherent powers of the Supreme Court and the remedies available under the Judicial Review Act 1991 (Cth).
The last two CHO Directions were revoked by the Chief Health Officer on 4 March 2022 and 30 June 2022.
2. Directions issued by the Commissioner of Police
The Commissioner of Police issued a direction on 7 September 2021 requiring all police officers and Queensland Police Service staff members to, subject to certain exemptions (see Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor) [2024] QSC 2 at [10]):
receive at least one dose of a COVID-19 vaccine by 4 October 2021;
receive a second dose of the COVID-19 vaccine by 17 December 2021;
receive a booster dose of a COVID-19 vaccine no more than one month after they become eligible to do so; and
provide evidence of receiving the COVID-19 vaccine if required.
Police officers and other employees of the Queensland Police Service challenged the validity of the direction issued by the Commissioner of Police on 7 September 2021 and the superseding direction issued on 14 December 2021 (the 'QPS Directions') and sought orders including the quashing or setting aside of the QPS Directions and restraining the Commissioner of Police from acting in respect of the directions.
3. Direction issued by the Director General of Queensland Health
The Director General of Queensland Health issued a direction on 31 January 2022 requiring Queensland Ambulance Service staff to, subject to certain exceptions:
receive both the first and second dose of a COVID-19 vaccine by 27 February 2022;
maintain vaccine protection; and
provide evidence of receiving the COVID-19 vaccine no later than seven days after receiving each dose of the vaccine.
Queensland Ambulance Service staff challenged the validity of the direction issued by the Director General of Queensland Health on 31 January 2022 (the 'QAS Direction') and sought orders including the quashing or setting aside of the QAS Direction and restraining the Director General of Queensland Health from acting in respect of the directions. The applicants also challenged the Director General’s decision to approve the Employee COVID-19 Vaccination Requirements: Human Resources Policy (the ‘QAS Decision’).
Decisions
Johnston & Ors v Carroll (APM, Commissioner of the Queensland Police Service) & Anor; Ishiyama & Ors v Aitken & Ors; Hunt & Ors v Gerrard & Anor [2024] QSC 6
The respondents for the matter concerning the CHO Directions sought to have the applications dismissed on the basis that the applicants did not have standing in circumstances where the directions had been revoked, the applicants were no longer adversely affected by the directions and would gain no relief. The applicants argued that although the CHO Directions had since been revoked, section 498 of the Public Health Act 2005 (QLD) expressly states that offences for non-compliance with a direction, including the CHO Directions, can still be prosecuted even after the revocation of the direction [30]-[31].
The relevant principles applied by Martin SJA were [42]:
that issues of standing and whether a matter is hypothetical may overlap;
the “pertinent question”, in line with existing case law, is "whether an applicant has a sufficient interest to have that applicant's 'rights and position clarified' by a declaration" (see Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 530); and
"any person who is actually in jeopardy of punishment under the Directions will have standing to challenge their validity" (see Kuczborski v Queensland (2014) 254 CLR 51 at [185]).
Applying these principles, Martin SJA found that the applicants did not have standing or had ceased to have standing [75]. None of the applicants were facing criminal charges or disciplinary proceedings for conduct in relation to the CHO Directions, and there was no evidence that the applicants had breached the directions [64]-[66], [70], [72]-[73]. The applicants were ordered to pay the respondents’ costs [76]-[77].
Martin SJA found it was not necessary to determine whether the CHO Directions might contravene section 13 of the HRA, noting that the issue had not been explored by the parties [17].
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
This matter concerned the validity of the QPS Directions and the QAS Direction under the HRA and principles of administrative law.
QPS Directions
Consistent with existing jurisprudence, section 58 of the HRA imposed two obligations on the Commissioner of the Queensland Police Service (at [67]):
A procedural obligation to give proper consideration to a relevant human right in making a decision; and
A substantive obligation to not make a decision in a way that is incompatible with human rights.
Procedural obligation
The procedural obligation required the Commissioner to give proper consideration to affected human rights when making a decision, in accordance with section 58(5) of the HRA. The evidence given by the Commissioner of the Queensland Police Service as to her “proper consideration” was not accepted, particularly after cross-examination. Martin SJA found that the Commissioner had failed to:
understand the rights that may be affected;
seriously turn her mind to the impact of the decision on a person’s human rights;
identify the countervailing interests and obligations; or
balance those competing public and private interests.
Accordingly, the Commissioner had not given proper consideration to relevant human rights in breach of the procedural obligation [136]-[139].
Substantive obligation
The substantive obligation involved a two-step inquiry as to whether the relevant act or decision placed a limit on the affected human right and, if a limit exists, whether that limit is justified under the test of proportionality set out in section 13 of the HRA. The applicants raised a large number of rights said to be unjustifiably limited by the QPS Directions [279]-[281]. Martin SJA concluded that the following rights were not limited:
The right to recognition and equality before the law [287]-[299].
The right to life [300]-[307].
The right to freedom of thought, conscience, religion and belief [334]-[353].
The right to take part in public life without discrimination [354]-[356].
The right to privacy and reputation [357]-[372].
The right to liberty and security [373]-[379].
However, Martin SJA considered that the right not to be subjected to medical treatment was limited, as the applicants had not provided full, free and informed consent to COVID-19 vaccination [308]-[333]. But given that the directions were made in an emergency, the knowledge known about the virus and its transmissibility at the time the directions were made and the responsibility of employers to protect the occupational health and safety of their employees, the QPS Directions satisfied the test of proportionality in section 13 of the HRA because they were reasonable and demonstrably justified [455]-[459].
QAS Direction
In respect of the QAS Direction, the parties were in agreement that it was not made pursuant to any statutory power [230].
The Director General of Queensland Health argued that the power to issue the QAS Direction derived from the common law power of an employer to give lawful and reasonable directions to its employees, which is a term implied into all employment contracts. Martin SJA did not accept this argument on the basis that there was insufficient evidence to establish that the QAS Direction was “reasonable” and it therefore did not fall into the category of directions able to be made pursuant to an implied term in the employment contracts for Queensland Ambulance Service staff.
The applicants argued that the nature of the QAS Direction was such that it also could not be supported by any statutory power. In those circumstances, Martin SJA did not consider it appropriate for the court to “search for some saving statute” that authorised the making of the QAS Direction [230].
On that basis, the QAS Direction had no force and the applicants were entitled to an injunction restraining the Director General from taking any action upon an alleged contravention of the direction [224]-[225].
Orders granted
Martin SJA made declarations that the QPS Directions were unlawful under section 58 of the HRA and the QAS Decision was of no effect.
Injunctions were also granted restraining the enforcement of the QPS Directions and QAS Direction, and any disciplinary action in relation to them [469].
Commentary
The court found that the Commissioner for Police had failed to give proper consideration to human rights in making COVID-19 vaccination directions and therefore breached the procedural limb in section 58 of the HRA. While some of the directions also limited the right to be free from medical treatment without a person's full, free and informed consent, the limitation was justifiable and therefore did not breach the substantive limb of s 58 of the HRA. No other rights were relevantly limited.
The decisions demonstrate that courts will consider a broad range of public and private interests in applying the proportionality analysis in s 13 of the HRA to determine whether any limitation of rights is unjustifiable and therefore in breach of the substantive limb in s 58 of the HRA. There is “no formula” to conduct this balancing exercise [459]. Purported limitations on human rights cannot be considered in a vacuum.
The decision cited [2024] QSC 2 can be read here.
The decision cited [2024] QSC 6 can be read here.