Falconer v Commissioner of Police

In the case of Falconer v Commissioner of Police, the applicant sought interlocutory relief to prevent the enforcement of an Employer Direction which required him to be vaccinated against COVID-19 as a condition of his continued employment with the Police Force. The Commissioner of Police, who is the respondent, sought to enforce the Direction, which was made under the Police Act, against the applicant. The dispute was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether the Employer Direction was authorised by law. Specifically, the court had to determine whether the Employer Direction could be made under the Police Act or if it required authorisation under the Public Health Act. The applicant argued that the Employer Direction was not authorised because it effectively mandated a vaccination, a power that could only be exercised under the Public Health Act. The Commissioner contended that the Employer Direction was authorised under the Police Act and did not rely on the power to direct vaccination under the Public Health Act.

The court examined the provisions of both the Police Act and the Public Health Act to ascertain the scope and limits of the powers available to the Commissioner. It was held that the Employer Direction was not authorised under the Police Act as it purported to mandate a vaccination, a power that was not expressly or by implication available under the Police Act. The court found that the Commissioner's power under the Police Act did not extend to mandating vaccinations as a condition of employment. Additionally, the court noted that while the Public Health Act provided for the direction of vaccinations, this did not preclude other entities, such as employers, from requiring vaccinations as a condition of employment or other rights and liberties. The court concluded that the Employer Direction was not authorised by law and that the applicant had shown a sufficient likelihood of success at trial to warrant the preservation of his rights pending the final determination of the matter.

The court granted the relief sought by the applicant, prohibiting the Commissioner from enforcing the Employer Direction until the substantive proceedings were determined. The Commissioner was ordered to refrain from dismissing the applicant from the Police Force pending the final outcome of the case. This decision underscores the importance of ensuring that any directions made by employers are authorised by law and do not exceed the powers granted under relevant legislation.