Chief Executive of Queensland Corrective Services v Kay
[2025] QCA 149
•15 August 2025
SUPREME COURT OF QUEENSLAND
CITATION:
Chief Executive of Queensland Corrective Services v Kay [2025] QCA 149
PARTIES:
CHIEF EXECUTIVE OF QUEENSLAND CORRECTIVE SERVICES
(applicant)
v
TIMOTHY KAY
(first respondent)
KAREL DE JAGER
(second respondent)
RENE HENSEN
(third respondent)
MICHAEL SUTCLIFFE
(fourth respondent/not a party to the application)
LEESA BICKERS
(fifth respondent)
DAVID TU’IPULOTU
(sixth respondent)
ANTHONY FARQUHARSON
(seventh respondent/not a party to the application)
JARED TALLOTT
(eighth respondent)
ANTONY COOPER
(ninth respondent)FILE NO/S:
Appeal No 11611 of 2024
SC No 8786 of 2022DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave/Judicial Review
ORIGINATING COURT:
Supreme Court at Brisbane – [2024] QSC 167 & [2024] QSC 195 (Davis J)
DELIVERED ON:
15 August 2025
DELIVERED AT:
Brisbane
HEARING DATE:
5 March 2025
JUDGES:
Mullins P, Boddice JA and Crowley J
ORDERS:
1. Leave to appeal refused.
2. The applicant must pay the first, second, third, fifth, sixth, eighth and ninth respondents’ costs of the application for leave to appeal.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – OTHER MATTERS – STRIKING OUT – where the applicant made directions under the Corrective Services Act 2006 (Qld) entitled the COVID-19 Vaccination Requirements for Corrective Services Facilities Directions (the QCS Directions) – where the directions required that a “Staff Member” of QCS be vaccinated against COVID-19 – where the respondents were the subject of those directions and did not receive the mandated vaccinations – where the applicant made Disciplinary Finding Decisions under s 187 of the Public Service Act 2008 (Qld) (Act) that the respondents contravened the directions without reasonable excuse – where the respondents challenged the Disciplinary Finding Decisions in a judicial review application – where one of the grounds of challenge was that the QCS Directions were invalid and, to the extent the QCS Directions depended on Directions made by the Chief Health Officer (the CHO Directions), that the CHO Directions were invalid – where the applicant sought to strike out that part of the application for judicial review related to the Disciplinary Finding Decisions – where the primary judge refused the strike out the application – where the primary judge based the refusal on the construction of s 187 of the Act adopted by the primary judge that was contrary to the construction applied by the applicant – where the construction preferred by the primary judge permitted the respondents to make a collateral attack on the validity of the QCS Directions and the CHO Directions – where it was sufficient on the strike out application for the construction preferred by the primary judge to be arguable – whether the primary judge erred in refusing to strike out the judicial review application
Acts Interpretation Act 1954 (Qld), s 14A
Judicial Review Act 1991 (Qld), s 15, s 48
Public Service Act 2008 (Qld), s 187, s 188, s 193Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited
Hunt v Gerrard, Chief Health Officer (2022) 13 QR 1; [2022] QCA 263, cited
Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568; [2006] SASC 32, citedCOUNSEL:
A D Scott KC, with A R Hughes, for the applicant
M Black, with B J Coyne, for the respondentsSOLICITORS:
C E Christensen, Crown Solicitor for the applicant
Sibley Lawyers for the first, second, third, fifth, sixth, eighth and ninth respondents
MULLINS P: The applicant who is the Chief Executive of Queensland Corrective Services (QCS) applies for leave to appeal pursuant to s 15(4) and s 48(5) of the Judicial Review Act 1991 (Qld) (Act) against the refusal by the learned primary judge to strike out the amended application for a statutory order of review and application for review or other alternative relief (the judicial review application) in relation to the “Disciplinary Finding Decisions” identified in annexure A to the judicial review application that were made by the applicant (through his delegate) in respect of the respondents (apart from the fourth and seventh respondents) who will be referred to as the QCS officers: Kay v Chief Executive of Queensland Corrective Services [2024] QSC 167 (the reasons). After publishing the reasons, the costs of the strike out application were determined on the papers: Kay v Chief Executive of Queensland Corrective Services (No 2) [2024] QSC 195 (the costs reasons). Each party’s costs of the strike out application were ordered to be that party’s costs of the judicial review application.
The judicial review application has two distinct parts. The first part concerns the applicant’s decision made on or about 29 June 2022 issuing a direction entitled the Queensland Corrective Services Employment Directive 01/22 (Employment Direction). The grounds of the judicial review application are set out in annexure B to the application. Grounds 1.1 to 1.6 are relied on to assert that the Employment Direction is invalid or liable to be quashed. The applicant’s strike out application did not extend to the part concerned with the Employment Direction. It was only the other part of the judicial review application challenging the Disciplinary Finding Decisions that was the subject of the strike out application.
If leave to appeal is granted, the grounds in the proposed notice of appeal are:
1.the primary judge erred in construing s 187 of the Public Service Act 2008 (Qld) (PSA) as requiring a direction given to a public service employee to be “valid” in order for a breach of that direction to form a basis for a ground of discipline of that employee under that section;
2.the primary judge erred in concluding that the judicial review application ought not be dismissed, to the extent that the application challenged decisions to make disciplinary findings, on the basis s 193(1) of the PSA provided an adequate alternative to judicial review by way of appeal to the Queensland Industrial Relations Commission (QIRC);
3.the primary judge erred by declining to accept that the judicial review application was an abuse of process.
Even though the QCS officers oppose the appeal, they do not oppose leave to appeal being granted on the basis that at least the first proposed ground of appeal raises an important question of law as to the construction of s 187 of the PSA. The focus of the hearing in this Court was ground 1 as ground 2 depends on the success of the application on ground 1 and ground 3 also depends to some extent on ground 1.
Background
The QCS officers were the subject of directions made by the applicant under s 263(2), s 264 and s 268(4) of the Corrective Services Act 2006 (Qld) (CSA) entitled COVID-19 Vaccination Requirements for Corrective Services Facilities Directions (the QCS Directions). The QCS Directions required that a “Staff Member” of QCS, including the QCS officers, be vaccinated against COVID-19. The QCS Directions were made in the context of the Chief Health Officer (CHO) issuing on 11 December 2021 the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction and issuing on 4 February 2022 the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No 2) (CHO Directions). The CHO Directions required workers to be vaccinated in order to enter a high-risk setting, including a corrective services facility, and to show proof of vaccination to their employer as soon as reasonably practicable after each vaccination (vaccination requirements). There are at least three QCS Directions referred to in paragraph 28 of annexure B to the judicial review application made respectively on 24 December 2021, 25 March 2022 and 29 April 2022. Paragraph 29 of annexure B of the judicial review application asserts that none of the QCS Directions was lawful and reasonable because each of those directions was invalid or liable to be quashed for the reasons set out in grounds 1.1 to 1.6 of the judicial review application. Paragraph 30 of annexure B of the judicial review application asserts that none of the QCS Directions was lawful and reasonable because each of those Directions was invalid or liable to be quashed for the reason that each of those QCS Directions relied upon the existence and lawfulness of the CHO Directions. It is implicit in paragraph 30 that the invalidity of the CHO Directions is also asserted. The invalidity of the QCS Directions asserted in the judicial review application is not related solely to the asserted invalidity of the CHO Directions.
The QCS officers did not receive the mandated vaccinations. Decisions were made in which it was found the QCS officers contravened, without reasonable excuse, the QCS Directions contrary to s 187(1)(d) of the PSA which were referred to in the judicial review application as the Disciplinary Finding Decisions. At the time of those decisions, there had not been (and there still has not been) a finding by a court of competent jurisdiction that the QCS Directions were invalid.
The QCS officers challenge to the Disciplinary Finding Decisions in the judicial review application is generally on the grounds:
(i)the QCS Directions and CHO Directions are invalid (ground 2.1); and
(ii)the Disciplinary Finding Decisions are infected with administrative error being a failure to take into account relevant considerations (ground 2.2) and that they are legally unreasonable (ground 2.3).
The primary judge identified (at [22] of the reasons) four submissions which were the basis of the strike out application in respect of that part of the judicial review application challenging the Disciplinary Finding Decisions:
Issue 1 – the applicant’s power to make the Disciplinary Finding Decisions was not dependent upon the QCS Directions (referred to as COVID-19 Directions in the reasons) being valid;
Issue 2 – if there was to be a challenge to the Disciplinary Finding Decisions then that ought to have been by way of appeal under the Industrial Relations Act 2016 (Qld);
Issue 3 – the continuation of the present challenge as to the Disciplinary Finding Decisions on judicial review would inappropriately fragment an administrative decision-making process which is not yet complete; and
Issue 4 – the challenge to the QCS Directions as part of the challenge to the Disciplinary Finding Decisions is an abuse of process.
The primary judge’s respective conclusions on Issues 1, 2 and 4 give rise to proposed grounds 1, 2 and 3 of the appeal.
PSA
Section 187 of the PSA which has the heading “Grounds for discipline” sets out the grounds for discipline against public service employees. The proceedings taken against the QCS officers which resulted in the Disciplinary Finding Decisions were under the PSA. Even though the PSA has been repealed by the Public Sector Act 2022 (Qld), the transitional provisions in the latter Act preserve the force of actions taken under the PSA before its repeal. There is also a like provision in the Public Sector Act to s 187 of the PSA, namely s 91. The focus of s 187(1) is the conduct of the employee which is under consideration by the chief executive to determine whether a ground exists for taking disciplinary action.
Section 187(1)(d) of the PSA provided:
“A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
(a)…
(d)contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or …”
For the purpose of s 187 of the PSA, s 187(4) provides that “responsible person” for a direction means a person with authority to give the direction, whether the authority derives from the PSA or otherwise. That means that in considering whether a contravention may fall within s 187(1)(d), the chief executive must be reasonably satisfied the employee has contravened, without reasonable excuse, a direction given to the employee as a public service employee by a person with authority to give the direction.
The reasons
Issue 1 focused on the QCS officers’ contention in the judicial review application that the Disciplinary Finding Decisions could be challenged on the basis that the QCS Directions (and the CHO Directions) were invalid. The contention of the applicant (recorded at [48] of the reasons) was that the making of the Disciplinary Finding Decisions depended upon the formation of a state of mind of the applicant and not the existence of objective facts, so that the existence of a lawful direction was not a justiciable issue in any challenge to the Disciplinary Finding Decisions. The contention of the QCS officers (recorded at [49] of the reasons) was that the existence of a lawful direction was an objective fact which either exists or it does not and against that objective fact, the applicant must be “reasonably satisfied” that there has been a contravention without reasonable excuse.
The primary judge referred (at [50] of the reasons) to the relationship between s 187 and s 188 of the PSA. The primary judge explained that s 187 empowered the applicant (as the Chief Executive of QCS) to make a disciplinary finding in respect of an employee and the applicant was then empowered under s 188 to discipline the employee. The primary judge referred to “the making of a disciplinary finding as a ‘jurisdictional fact’ upon which the power to discipline arises”.
The primary judge noted (at [53] of the reasons) the five matters of which the applicant must (on a literal interpretation) be “reasonably satisfied” to constitute the jurisdictional fact upon which the power to discipline arises were:
“(i)there is a direction (element 1 of a disciplinary finding);
(ii)the direction was given to the relevant employee (element 2 of a disciplinary finding);
(iii)the person who gave the direction to the employee was a ‘responsible person’ (element 3 of a disciplinary finding);
(iv)the employee contravened the direction (element 4 of a disciplinary finding); and
(v)that there was no reasonable excuse for the employee to contravene the direction (element 5 of a disciplinary finding).”
The primary judge considered (at [56] of the reasons) that elements 4 and 5 were matters of opinion. In contrast, the primary judge considered (at [57]) that different considerations arise with elements 1, 2 and 3 and that the existence of a valid direction having been given to the employee is an objective fact.
The key finding made by the primary judge on Issue 1 was set out at [59] of the reasons (where CEQCS refers to the applicant):
“In my view, the proper construction of s 187 is that the power to discipline arises where the CEQCS is reasonably satisfied that the employee has breached, without reasonable cause, a valid direction which has in fact been given to the employee by a responsible person.”
As was explained (at [61] of the reasons), the primary judge considered any disciplinary action taken pursuant to s 188 of the PSA on an apparent breach of an invalid direction could not, when viewed objectively, be “reasonable” in compliance with s 188(1). The primary judge concluded (at [63]) that it could not be the legislative intention that an employee would suffer disciplinary action under s 188 for failing to comply with a purported direction which, because of its invalidity, the employee was not obliged to obey.
With respect to Issue 2, the primary judge noted (at [64] of the reasons) that it was common ground that a Disciplinary Finding Decision was a “fair treatment decision” and could therefore be appealed to the QIRC pursuant to s 193(1) of the PSA. The applicant argued before the primary judge that it was in the interests of justice to dismiss that part of the judicial review application concerning the Disciplinary Finding Decisions given the existence of appeal rights to the QIRC.
The primary judge disposed of Issue 2 on the basis of the finding (at [61] of the reasons) that the existence of a valid direction was an objective criterion for the power to discipline to arise and the further finding (made by the primary judge when dealing with Issue 4 at [84]-[86]) that it was permissible on the judicial review application for the QCS officers to make a collateral challenge to the validity of the QCS Directions. The primary judge observed (at [72]) that the QIRC would have no jurisdiction to conduct a judicial review of the QCS Directions. The primary judge therefore decided (at [73]) not to strike out the challenged parts of the judicial review application in response to Issue 2. For the purpose of this appeal, the applicant accepted that if the validity of the QCS Directions can be challenged as a basis for challenging the Disciplinary Finding Decisions, then an appeal under s 193(1) of the PSA is not an adequate alternative to judicial review.
The primary judge noted (at [84] of the reasons) that the QCS Directions were made in exercise of administrative power. The CHO Directions were amongst the directions that were the subject of Hunt v Gerrard, Chief Health Officer (2022) 13 QR 1 where there was an unsuccessful appeal against the determination of Dalton J (as her Honour then was) that the CHO Directions were legislative in character. Notwithstanding that finding in Hunt v Gerrard, the primary judge proceeded (at [84]) on the basis that the CHO Directions were made in the exercise of administrative power. The applicant concedes that treating the CHO Directions as administrative rather than legislative was of no particular significance to the primary judge’s reasoning. The applicant also accepts that whether the CHO Directions were administrative or legislative in nature, they could still be collaterally reviewed: Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568 at [15] and [91]. The primary judge concluded (at [86]) that the collateral attack upon the QCS Directions and CHO Directions was permissible on the hearing of the judicial review application and it was not necessary for the QCS officers to seek review specifically of those directions in order for the QCS officers to mount a challenge to the Disciplinary Finding Decisions.
At the same time as hearing the strike out application, the primary judge heard the respondents’ application to amend the judicial review application where the amendments were directed at addressing some of the issues raised by the applicant on the strike out application, including that the CHO was not a party to the judicial review application. The primary judge dismissed the respondents’ application in dealing with Issue 4. Because of the findings made by the primary judge (at [86] of the reasons) that the collateral attack upon the QCS Directions and the CHO Directions was permissible in the judicial review application in order for the QCS officers to challenge the Disciplinary Finding Decisions without the necessity for the CHO to be joined, the primary judge found (at [87]) that discretionary factors weighed against allowing the amendments sought by the QCS officers to the judicial review application.
Was the construction of s 187 of the PSA adopted by the primary judge arguable?
In this Court, both parties accepted that the primary judge’s decision on the construction of s 187 on the PSA was interlocutory and did not preclude the applicant from contending on the hearing of the judicial review application for the construction of s 187 that was rejected by the primary judge. The parties’ position as to the effect of the primary judge’s decision on the construction of s 187 is correct. The construction of s 187 was undertaken by the primary judge in refusing the strike out application pursuant to s 48(1) of the Act. It was sufficient for the primary judge to be satisfied on the strike out application that the construction advanced by the QCS officers (and accepted by the primary judge (at [59] of the reasons)) was arguable. The primary judge did not need to go as far as expressing it in the terms of being his Honour’s view as to the proper construction of s 187. The fact that the primary judge did so does not foreclose that issue for the parties on the final hearing of the judicial review application.
It is therefore sufficient to dispose of proposed ground 1 by answering the question whether that construction was arguable. For the reasons given by the primary judge (at [57]-[63] of the reasons) and the additional observations set out below, the primary judge’s preferred construction of s 187(1)(d) was clearly arguable.
Section 14A(1) of the Acts Interpretation Act 1954 (Qld) mandates that, in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. The importance of text, context and purpose in undertaking this task is well settled: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [5] and [47]. In the normal course, the presumption of regularity would make it unusual for the validity of the direction given to a public service employee that is then the subject of the relevant chief executive’s consideration under s 187(1)(d) of the PSA to be in issue. Consistent with the purpose of s 187, the focus of s 187(1)(d) would be on whether the chief executive was reasonably satisfied the employee had contravened, without reasonable excuse, the relevant direction. It is arguable that the state of reasonable satisfaction that is the test to be applied by the chief executive in determining whether the disciplinary ground under consideration is made out is directed at whether a direction was given and the relevant employee’s conduct in response to the relevant direction. It is an awkward construction to apply reasonable satisfaction of the chief executive to the validity of the relevant direction when the only aspect of validity that is expressly raised by the text of s 187(1)(d) is the authority of the responsible person to give the direction. The presumption of regularity in respect of the direction would not preclude, in an appropriate case, a challenge by the employee to the validity of the direction where the ground on which invalidity of the direction is alleged can otherwise be determined on judicial review or other appropriate Court proceeding in respect of the chief executive’s determination that a disciplinary ground was made out.
The applicant sought to draw an analogy between the test “reasonably suspects” in s 189(1) of the Migration Act 1958 (Cth) and the test of “reasonably satisfied” in s 187(1) of the PSA and to rely on Thoms v Commonwealth of Australia (2022) 276 CLR 466 for the proposition that the subsequent determination of the lawfulness of what had been reasonably suspected to be unlawful did not alter that the relevant officer had grounds for the reasonable suspicion at the time the decision was made to detain Mr Thoms. The analogy has no application where the construction of s 187 of the PSA adopted by the primary judge is arguable which has the effect that the test of reasonable satisfaction does not apply to the validity of the direction given by the chief executive to the employee that is the subject of s 187(1)(d) of the PSA.
The conclusion on proposed ground 1 disposes of proposed ground 2.
The conclusion on proposed ground 1 is also relevant to the consideration of proposed ground 3. When dealing with Issue 4, the primary judge did not directly address the applicant’s submission made in support of its strike out application that the judicial review application sought to indirectly challenge the QCS Directions without doing so directly in compliance with the procedures under the Act and was therefore an abuse of process. The applicant had also relied on an affidavit before the primary judge of lawyer Mr Grayson who deposed to his opinion of the additional evidence and hearing time that would be required if the validity of the QCS Directions and the CHO Directions was in issue on the judicial review application. Even though the applicant had success in resisting the respondents’ amendment application, that success was partly due to the primary judge’s conclusion that the collateral attack of the validity of the QCS Directions and the CHO Directions was permissible in the judicial review application. That followed from the primary judge’s view of the construction of s 187(1) of the PSA. When that construction of s 187(1) is clearly arguable, it vindicates the availability of the collateral challenge to the validity of those directions and overcomes the applicant’s submissions made in support of ground 3 based on discretionary factors.
Orders
The proposed ground 1 has been dealt with on the basis that the construction of s 187 of the PSA adopted by the primary judge was arguable without definitively expressing a final view on the construction of s 187. In those circumstances (and despite the lack of opposition to the granting of leave), leave to appeal should be refused.
The application for leave to appeal was against both the dismissal of the applicant’s strike out application and the order made relating to the costs of that application. No argument was pursued in relation to the costs order that was separate from the outcome of the application for leave to appeal against the dismissal of the strike out application. The application for leave to appeal against the costs order should therefore abide the outcome of the application for leave to appeal against the dismissal of the strike out application. Costs in this Court should follow the event of the application for leave to appeal.
The orders which should be made are:
1. Leave to appeal refused.
2. The applicant must pay the first, second, third, fifth, sixth, eighth and ninth respondents’ costs of the application for leave to appeal.
BODDICE JA: I agree with Mullins P.
CROWLEY J: I agree with Mullins P.
0
5
3