The decision concerned a number of separate judicial review proceedings challenging COVID-19 vaccination directions issued by the Queensland Police Commissioner and the Director-General of Queensland Health. The directions mandated police and ambulance workers to be vaccinated against COVID-19.

Unlawfulness and invalidity under the Human Rights Act

Section 58(1) of the Human Rights Act imposes two separate obligations on public entities:

• not to act or make a decision in a way that is incompatible with human rights (the substantive limb); and
• not to fail to give proper consideration to a human right in making the decision (the procedural limb).

A failure to comply with either limb makes an act or decision unlawful and in breach of the Human Rights Act. However, section 58(6) makes it clear that an act or decision which is found to be unlawful under section 58(1) is not, because of that finding, invalid.

The substantive limb

The phrase 'compatible with human rights' is defined in section 8 and involves a two stage inquiry:

• whether the relevant act or decision places a limit on human rights;
• if there is a limit, whether the limit is justified under the test for proportionality set out in section 13 of the Human Rights Act.

The applicant bears the onus of establishing that the decision imposes a limit on human rights.

If that is established, the respondent bears the onus of justifying the limit. The courts have described it as a high burden.

The court, citing Victorian authorities, suggested an allegation of incompatibility should be considered according to the following three questions:

1. the engagement question: identify whether any human right is relevant to or engaged by the impugned decision or action of the public authority; a human right will be engaged if that right is apparently limited;
2. the limitation question: determine whether the decision or action has limited that right; a right will be limited if it is restricted or interfered with; and
3. the proportionality or justification question: consider whether the limit is reasonable and demonstrably justified having regard to the matters in section 13(2) of the Human Rights Act.

The procedural limb

Section 58(5) of the Human Rights Act provides guidance in considering whether proper consideration has been given to a relevant human right and includes:

• identification of the human rights that may be affected; and
• consideration of whether the decision would be incompatible with human rights.

The court considered the approach taken by the Victorian courts provides guidance in considering whether section 58(5) has been satisfied, including:

• the procedural limb does not involve a sophisticated legal exercise and there is no formula for compliance with it;
• proper consideration does not require direct and express consideration to each of the matters set out in section 13 of the Human Rights Act; and
• proper consideration requires a broad and general assessment of whether the impact of the act or decision on a relevant human right is appropriate in all the circumstances.

The police directions – procedural limb

The Police Commissioner issued the first police direction on 7 September 2021, which was revoked and replaced by a second direction issued on 14 December 2021. Both directions were issued pursuant to sections 4.8 and 4.9 of the Police Service Administration Act 1999 (Qld) which authorise directions, written or oral, general or specific, as the Police Commissioner 'considers necessary or convenient for the efficient ad proper functioning of the police service'. The directions applied to all police officers and all staff members and required them to be vaccinated against COVID-19 subject to certain exemptions.

The Police Commissioner gave evidence about the process which led her to make the decision to issue the directions. This included the human rights she considered could be limited. The Police Commissioner stated that she relied on and considered two Human Rights Compatibility Assessments which were prepared for her by the Crown Solicitor's office. Justice Martin described the Police Commissioner's purported reliance on the Human Rights Compatibility Assessments as 'at best, inconclusive and, at worst, unreliable.'

Broadly, Justice Martin held that in making the decision to issue the police directions, the Police Commissioner failed to demonstrate that before making the directions she:

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

Justice Martin also did not accept that the Police Commissioner had:

• either identified the human rights that might be affected by the directions; or
• considered whether the directions would be compatible with human rights.

As such, the decision to issue the police directions was held to be unlawful.

The police directions – the substantive limb

Limitation of right not to be subjected to medical treatment without full, free and informed consent

With respect to the human rights affected, Justice Martin said the applicants had been 'generous and imaginative' in their assessment of the number of rights said to have been limited, which were:

• the right to enjoy human rights without discrimination (section 15(2))
• the right to equal and effective protection against discrimination (section 15(4));
• the right to life (section 16);
• the right not to be subjected to non-consensual medical treatment without the person's full, free and informed consent (section 17(c));
• the right to freedom of thought, conscience, religion and belief (section 20);
• the right to take part in public life (section 23);
• the right to privacy (section 25); and
• the right to liberty and security (section 29).

After considering each of the human rights identified by the applicants, Justice Martin determined that the only right limited was the right in section 17(c) not to be subjected to medical treatment without the person's full, free and informed consent.

Compulsion to comply with the directions

In reaching that view, Justice Martin rejected the argument that the directions did not limit section 17(c) because they did not forcibly compel a person to be vaccinated. His Honour concluded there was a practical compulsion to comply with the directions where a person's livelihood was put at risk if consent was not given.

The limitation was reasonable

Having found the right referred to in section 17(c) of the Human Rights Act was limited, Justice Martin then considered whether the limitation was reasonable and could be demonstrably justified having regard to the considerations in section 13 of the Human Rights Act, which are:

• the nature of the human right;
• the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
• the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
• whether there are any less restrictive and reasonably available ways to achieve the purpose;
• the importance of the purpose of the limitation;
• the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
• the balance between the importance of the purpose of the limitation and the importance of preserving the human right.

Noting there is no formula which can be used to consider this balance, taking into account the matters argued by the parties including expert evidence concerning the transmissibility of COVID-19 and its variants, and the use and efficacy of various vaccines, Justice Martin was satisfied the balance was in favour of the respondents and the limit imposed on section 17(c) was demonstrably justified in the terms of section 13 of the Human Rights Act.

Justice Martin reached this view notwithstanding his observations that:

• the directions were largely inflexible in that they imposed a regime which allowed exemptions only on the ground of medical contraindication or genuine religious belief or some other exceptional circumstance, and did not allow an exception for conscientious objection;
• the directions did not recognise the high level of voluntary vaccination already apparent within the workforces;
• the police direction was not confined to staff who fell into high risk categories – it applied to all police staff; and
• non-compliance with the directions could have had life-changing consequences for an employee who declined to comply with the direction.

The ambulance direction

The Director-General of the Department of Health issued a direction to Queensland ambulance staff mandating them to be vaccinated against COVID-19 subject to certain exemptions.

Source of the power to make the ambulance direction

It appears from the judgment that the Crown's arguments in respect of the source of power to the make the ambulance direction changed. In opening submissions it was argued the direction was issued pursuant to the Director-General's power at common law to give lawful and reasonable directions to employees, as well as his authority under section 13 of the Ambulance Service Act 1991 to impose conditions of employment for staff employed under that Act.

In closing submissions the Crown's reliance on the statutory power was not pressed. It was argued instead that the direction was issued pursuant to a power under contract, specifically a term implied into all employment contracts at common law, that an employer may give lawful and reasonable directions to employees. It was argued by the Crown that because the direction was not a decision under an enactment, nor an exercise of public power, it was not amenable to judicial review or subject to section 58 of the Human Rights Act.

In considering the source of power relied upon, Justice Martin noted that the cover sheet to the ambulance direction contained, under the heading 'Legislative or other authority', a list of Queensland statutes including the Ambulance Service Act, the Human Rights Act and the Public Service Act 2008 (Qld). The cover sheet did not refer to contracts of employment or identify the direction as only be achieved by an implied term of contract.

It was argued by the applicants that the Director-General could not rely on a different (common law) power to make the direction. In rejecting that argument, Justice Martin stated the applicable law is clear that a mistake by an administrative decision maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power.

Implied term of the contract of employment

Justice Martin then considered whether the direction was an implied term of the contracts of employment for ambulance workers. His Honour presumably undertook this assessment of contractual rights pursuant to the court's supervisory jurisdiction however it is unclear from the judgment. The decision also leaves unanswered the Crown's argument that the exercise of the common law power of an employer to give lawful and reasonable directions to employees is not a decision to which the Judicial Review Act applies.

Justice Martin noted that a lawful command is one which is within the scope of the contract and is reasonable. Referring to the High Court's decision in R v Darling Island Stevedoring & Lighterage Co Ltd; ex parte Sullivan, His Honour said the question of reasonableness arises in circumstances where he was not directed to any evidence from the Crown which touched upon:

• any established usages affecting the nature of the employment;
• what, if any, common practices exist; or
• the general provisions of the instrument governing the relation of the employees covered.

On that basis and in the absence of any evidence about the nature and scope of the employment, including the relevant employment conditions, Justice Martin found that the Director-General could not establish the direction was reasonable in the sense used in Darling Island Stevedoring, and it had no force.

Application of human rights

The Crown's arguments regarding the application of the Human Rights Act to the direction also changed during the proceedings. At the beginning of trial it was conceded that in exercising the power to make the direction, the Director General was subject to both the substantive and procedural limbs of section 58 of the Human Rights Act. That concession was abandoned and the position was reversed at the end of the trial by the Crown contending the direction was a decision to exercise a power under a contract and was not subject to the Human Rights Act. However, in the same submission, the Director-General accepted he was, when making the direction, subject to the requirements of the Human Rights Act generally.

It was argued by the Director-General that the exception in section 58(4) of the Human Rights Act for an act or decision of a private nature applied. That argument was rejected by the court on the basis the direction was directed to all employees regardless of their situation. It was not formulated with any particular employee in mind and had general application the court said. Justice Martin also noted the Director-General's submissions did not explain why, if section 58(4) applied, he had apparently taken human rights into consideration.

Ambulance direction – procedural limb

Unlike the Police Commissioner, the Director-General did not give evidence at the trial, with the court noting that no attempt was made to demonstrate he was unavailable. That meant the only evidence connecting the Director-General with the direction was his signature on a briefing note provided by the then Chief Human Resources Officer.

Justice Martin was prepared to infer that, in the conventional way, the Director-General 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.

Noting that the briefing note contained a detailed Human Rights Compatibility Assessment that addressed both requirements in section 58, Justice Martin concluded that proper consideration was given to the relevant human rights by the Director-General.

Ambulance direction – substantive limb

For the same reasons given for the police directions, Justice Martin was satisfied the balance was in favour of the respondents and the limit imposed on section 17(c) was demonstrably justified in the terms of section 13 of the Human Rights Act.

It will be interesting to see whether the decision is appealed. Aspects of the decision, particularly in respect of the court's findings about the implied contractual terms, are unclear and may be challenged on appeal. It also seems that on the question of reasonableness, no consideration was given to the Director-General's legal obligation to comply with the direction issued by the Chief Health Officer under section 362B of the Public Health Act 2005 (Qld) for workers in a healthcare setting, which expressly extended to ambulance services.

The decision has attracted considerable public attention with further class actions foreshadowed. Further challenges can be expected.
For other departments and agencies which had similar vaccine directions, those directions remain valid for the period in which they were enforceable.

What to expect

Going forward, the decision confirms the importance of conducting a rigorous human rights assessment before making a decision. When briefing a decision maker, the Human Rights Compatibility Assessment must identify the relevant rights affected by the decision and whether the decision would be compatible with human rights. The decision maker must read and decide whether to accept the Human Rights Compatibility Assessment before making their decision.

If you would like to discuss this update, or we are able to assist in any way, please do not hesitate to get in touch.