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...

[2024] QSC 2

SUPREME COURT OF QUEENSLAND

CITATION:

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

PARTIES:

In Proceeding Number 11254 of 2021

DYLAN MARK JOHNSTON

(first applicant) and

BENJAMIN OWEN OAKLEY

(second applicant) and

KEVIN JOSEPH GHERINGER

(third applicant) and

TONY ADAM PAYNE

(fourth applicant) and

CONNAN KEITH BARRELL

(fifth applicant) and

BENJAMIN SHANAHAN

(sixth applicant) and

TONIA MARCELLE LANCE
(seventh applicant)
v

KATARINA RUZH CARROLL APM, COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(first respondent) and

DR JOHN GERRARD, CHIEF HEALTH OFFICER

(third respondent) and

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(first intervenor) and

QUEENSLAND HUMAN RIGHTS COMMISSIONER

(second intervenor)

In Proceeding Number 11258 of 2021

BERNARD WITTHAHN

(first applicant) and

SARAH WINDSOR

(second applicant) and

CAMERON EVERS

(third applicant) and

BEN NOSOV

(fourth applicant) and

PETER THOMSON

(fifth applicant) and

MICHAEL STUTH

(seventh applicant) and

BRITTANY LEVEN

(eighth applicant) and

JOSHUA TUNLEY

(ninth applicant) and

BENJAMIN ELLIOTT VIGNAND BAXTER

(tenth applicant) and

DAREN LONGOBARDI

(eleventh applicant) and

SIMON MORRISON

(twelfth applicant) and

DONNA BOWMAN

(thirteenth applicant)

v

JOHN WAKEFIELD, CHIEF EXECUTIVE OF HOSPITAL AND HEALTH SERVICES AND DIRECTOR GENERAL OF QUEENSLAND HEALTH

(first respondent) and

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(first intervenor) and

QUEENSLAND HUMAN RIGHTS COMMISSIONER

(second intervenor)

In Proceeding Number 12168 of 2021

SHAUN SUTTON

(first applicant) and

DOMINIC LUIS SAFI

(second applicant) and

JASON MOLE

(third applicant) and

ADRIAN KNIGHT

(fourth applicant) and

STEPHEN LYTTLE

(fifth applicant) and

WENDY HOLDERNESS

(sixth applicant) and

ANDREW HOLDERNESS

(seventh applicant) and

JASDEEP ATWAL

(eighth applicant) and

LOUISA-JANE LOGUE

(ninth applicant) and

MALCOLM CAMERON LOGUE

(tenth applicant) and

OLIVER WILLIAM GEORGE

(eleventh applicant) and

DAVID WILLIAM MORGAN

(twelfth applicant) and

BRITAINIE JAY STICKLEY

(thirteenth applicant) and

SEAN DOUGLAS BLAIR

(fourteenth applicant) and

DONNA JANELLE MALONE

(fifteenth applicant) and

LUCAS DEAN MIZZEN

(sixteenth applicant) and

HAYDEN WAYNE DRINNEN

(seventeenth applicant) and

KARINA LEE ORMOND

(eighteenth applicant) and

ADAM GREEN

(nineteenth applicant) and

NATALIE SKENNERTON

(twentieth applicant) and

BRONWYN SMITH

(twenty-first applicant) and

DREW CARMICHAEL

(twenty-second applicant) and

ANDREW MARSHALL

(twenty-third applicant) and

TRUDY BORLASE

(twenty-fourth applicant) and

MATT DOWN

(twenty-fifth applicant) and

JEAN-LOUIS CARPE

(twenty-sixth applicant) and

ANDREW CARY

(twenty-seventh applicant) and

CHRISTIAN HAR

(twenty-eighth applicant) and

LUIS LARRARTE

(twenty-ninth applicant) and

NATALIE MAHER

(thirtieth applicant) and

LYNDELLE GIBBS

(thirty-first applicant) and

VRINDA MCCAULEY

(thirty-second applicant) and

BRENDON SMITH

(thirty-third applicant) and

MARK RIX

(thirty-fourth applicant) and

MARLON BESSON

(thirty-fifth applicant) and

SCOTT BEVERIDGE

(thirty-sixth applicant) and

CANDICE STRAIN

(thirty-seventh applicant) and

MARK CARROLL-WALDEN

(thirty-eight applicant) and

MEGAN FAULKS

(thirty-ninth applicant) and

HAYLEY REID

(fortieth applicant) and

DAVID BROWN

(forty-first applicant) and

MATT SHEERS

(forty-second applicant) and

ANDREW INGRAM

(forty-third applicant) and

KERRI KNIGHT

(forty-fourth applicant) and

COURTNEY MITCHELL

(forty-fifth applicant) and

LORINDA BILLING

(forty-sixth applicant) and

CAROLE VICKERY

(forty-seventh applicant) and

KIERAN ROBINSON

(forty-eighth applicant) and

DARREN BUCKLEY

(forty-ninth applicant) and

DONNA COLE

(fiftieth applicant) and

ERIN MICHELLE O’REGAN

(fifty-first applicant) and

ANDREA KADEN

(fifty-second applicant) and

KELLIE KNIGHT

(fifty-third applicant) and

DENA MILLER
(fifty-fourth applicant)
v

KATARINA RUZH CARROLL APM, COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(respondent) and

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(first intervenor) and

QUEENSLAND HUMAN RIGHTS COMMISSIONER
(second intervenor)

FILENO/S:

BS 11254 of 2021, BS 11258 of 2021, BS 12168 of 2021

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland

DELIVEREDON:

27 February 2024

DELIVEREDAT:

Brisbane

HEARINGDATE:

30 and 31 May 2022, 1, 2, 3, 6, 9 and 10 June 2022, Further

written submissions 5, 7, 14 and 24 April 2023, 24 November
2023, 1, 7, and 14 December 2023

JUDGE:

Martin SJA

ORDERS:

In the Johnston matter (11254/21):

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:

(a)     taking any steps with respect to enforcement of the QPS Directions; and

(b)     taking any disciplinary proceedings against any of the applicants based upon the requirements of the QPS Directions.

In the Witthahn matter (11258/21):

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.

In the Sutton matter (12168/21):

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:

(a)     taking any steps with respect to enforcement of the QPS Directions; and

(b)     taking any disciplinary proceedings against any of the applicants based upon the requirements of the QPS Directions.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW

LEGISLATION – DECLARATIONS – where directions were made requiring police and ambulance workers to be vaccinated – where the applicants claim the directions were invalid or unlawful – whether directions for mandatory vaccination against COVID-19 should be quashed and set aside – whether declaration should be made that the directions are invalid or unlawful

ADMINISTRATIVE LAW – JUDICIAL REVIEW –

GENERALLY – where Police Commissioner empowered to give directions to police officers and staff members
“necessary or convenient for the efficient and proper

functioning of the police service” - whether the Police Commissioner had the power to make directions requiring vaccination against COVID-19

GENERAL CONRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY –

where the Director General of the Department of Health issued a direction to Queensland Ambulance Service staff to be vaccinated against COVID-19 – where the Director General claims the direction was made under an implied contractual term – whether the direction was able to be made pursuant to the implied term of the contracts of employment

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION –

where directions were made requiring police and ambulance workers to be vaccinated against COVID-19 – where the applicants claim the respondents failed to give proper consideration to human rights relevant to the decision – whether the directions were unlawful and in breach of the Human Rights Act 2019 (Qld)

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION –

where directions were made requiring police and ambulance workers to be vaccinated – where applicants claim they are being discriminated against due to their political belief or activity – where applicants claim directions not compatible with right to recognition and equality before the law – where applicants claim they are being compelled to be vaccinated with a medicine that has potential life-threatening side effects – where applicants claim directions not compatible with right to life – where applicants claim that full, free and informed consent to medical treatment cannot be given if an individual must choose between vaccination and employment – where applicants claim directions not compatible with right to protection from torture and cruel, inhuman or degrading treatment – where directions included no exception for conscientious beliefs – where applicants claim the directions not compatible with right to freedom of thought, conscience, religion and belief – where applicants claim directions not compatible with right to take part in public life - where applicants claim directions not compatible with right to privacy and reputation – where applicants claim directions not compatible with right to liberty and security of person – whether directions compatible with relevant human rights

Acts Interpretation Act 1954 (Qld), ss 23(1), 24AA Ambulance Service Act 1991 (Qld), ss 13, 13(1), 13(2) Anti-Discrimination Act 1991 (Qld), s 7, 7(j)

Canada Act 1982 (UK) c 11, sch B pt I (‘Canadian Charter of Rights and Freedoms’), s 20

Charter of Human Rights and Responsibilities Act 2006

(Vic), ss 32(1), 38

Civil Proceedings Act 2011 (Qld), s 10
Human Rights Act 1998 (UK)

Human Rights Act 2019 (Qld), ss 8, 13, 15(2), 15(4), 16,

17(c), 20, 23, 23(2)(b), 25, 29, 48, 58, 58(1)(a), 58(1)(b),

58(2), 58(5), 58(6), 59

Judicial Review Act 1991 (Qld), ss 22, 22(1), 30, 43, 47
New Zealand Bill of Rights Act 1990 (NZ), ss 8, 11
Police Service Administration Act 1990 (Qld), ss 2.3, 4.8(1),

4.8(3), 4.9, 4.9(1)

Public Health Act 2005 (Qld), s 362E
Public Service Act 2008 (Qld)

Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953),

arts 2(1), 14, 17

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered

into force 23 March 1976), arts 6(1), 18

UN Human Rights Committee, General comment No. 36 – Article 6: right to life, 124th Session, UN Doc CCPR/C/GC/36

Instrument of Commissioner’s Direction No. 12 Instrument of Commissioner’s Direction No. 14

Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151, considered

Animals Angels’ eV v Secretary, Dept of Agriculture (2014) 228 FCR 35; [2014] FCAFC 173, cited
Association X v The United Kingdom (1978) 14 Eur Comm HR 31, cited

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990]

HCA 21, cited

Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1, not followed Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; [2012] HCA 3, applied
Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129; [2015] VSCA 197, cited Boffa v San Marino (1998) 92 Eur Comm HR 27, considered British Medical Association v The Commonwealth (1949) 79 CLR 201; [1949] HCA 44, considered

Buonopane v RMIT University (Human Rights) [2022] VCAT 146, considered

Burgess v Director of Housing [2014] VSC 648, considered Campbell and Cosan v United Kingdom [1982] ECHR 1, considered
Case “Relating to Certain Aspects of the Laws on the use of

Languages in Education in Belgium” v Belgium (1968) 1 EHRR 252, considered

Castles v Secretary of Department of Justice (2010) 28 VR 141; [2010] VSC 310, approved

Certain Children v Minister for Families and Children (No 2)

(2017) 52 VR 441; [2017] VSC 251, cited

CFMEU v Mt Arthur Coal Pty Ltd (2021) 310 IR 399; [2021]

FWCFB 6059, considered

Four Aviation Security Service Employees v Minister of Covid-19 Response [2022] NZLR 26, considered

Grainger v Nicholson plc [2010] ICR 360; [2010] 2 All ER

253, considered

Griffith University v Tang (2005) 221 CLR 99; [2005] HCA

7, cited

Harding v Sutton [2021] VSC 741, considered

HJ (a pseudonym) v Independent Broad-Based Anti- Corruption Commission (2021) 64 VR 270; [2021] VSCA

200, cited

Hunt & Ors v Gerrard & Ors [2022] QCA 263, cited Loielo v Giles (2020) 63 VR 1; [2020] VSC 722, cited Kassam v Hazzard; Henry v Hazzard (2021) 393 ALR 664; [2021] NSWSC 1320, considered

Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299, cited

Kracke v Mental Health Service Board (2009) 29 VAR 1, considered
Makarov v Minister for Home Affairs (2021) 286 FCR 412; [2021] FCAFC 129, cited
Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46, cited

Minister for Immigration and Border Protection v Eden

(2016) 240 FCR 158; [2016] FCAFC 28, considered

Minister of Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, considered
Momcilovic v R (2011) 245 CLR 1, considered
Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, considered

Nugent v Commissioner of Police (Qld) and Anor (2016) 261 A Crim R 383; [2016] QCA 223, cited

NZDSOS Inc v Minister for the COVID-19 Response [2022] NZHC 716, cited
O’Brien v Cunard SS Co Limited 28 NE 266 (Mass. 1891), considered
Owen-D-Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250; [2021] QSC 273, applied

PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373; [2011] VSC 327, applied

Pretty v United Kingdom (2002) 35 EHRR 1, considered Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4, cited

Project Blue Sky v Australian Broadcasting Authority (1998)

194 CLR 355, cited

R (Peters) v Secretary of State for Health and Social Care
[2021] EWHC 3182, considered

R (SB) v Governors of Denbigh High School [2007] 1 AC 100, cited

R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246, considered
R v AM (2010) 245 FLR 410; [2010] ACTSC 149, considered

R v Darling Island Stevedoring & Lighterage Co Ltd; ex parte Sullivan (1938) 60 CLR 601; [1938] HCA 44, considered
Ralph M Lee (WA) Pty Ltd v Fort (1991) 4 WAR 176, approved

Roach v Canada (Minister of State for Multiculturalism and Culture) [1994] 2 F.C. 406, considered
Roads and Maritime Services v Desane Properties Pty Ltd

(2018) 98 NSWLR 820; [2018] NSWCA 196, cited

Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15, cited
Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4, considered
Stambe v Minister for Health (2019) 270 FCR 173; [2019]
FCA 43, considered
Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 578;
[2020] FCAFC 196, considered
Thompson v Minogue (2021) 67 VR 301; [2021] VSCA 358, cited
Ulrica Library Systems NV v Sanderson Computers Pty Ltd

[1997] NSWSC 454, considered

United States v Davis 482 F 2d 893 (1973), considered
Vavřička and Others v. The Czech Republic, applications 47621/13, 3867/14, 73094/14, 19306/15, 19298/15, and
43883/15 (ECtHR 8 April 2021), considered
VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631; [2003] NSWCA 297, applied

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, cited

Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291, distinguished
Yasmin v Attorney-General of the Commonwealth (2015) 236 FCR 169; [2015] FCAFC 145, cited

Beyleveld, Deryck and Roger Brownsword, Consent in Law

(Hart Publishing, 2007)

COUNSEL:

In the Johnston matter (11254/21):

DF Villa SC with PF Santucci and W Liu for the applicants MR Hodge KC with SA McLeod KC, BI McMillan, RH Berry and PH Nevard for the first respondent

In the Witthahn matter (11258/21):

CS Ward SC with PF Santucci and KA Morris for the applicants
MR Hodge KC with SA McLeod KC, BI McMillan, RH Berry and PH Nevard for the respondent

In the Sutton matter (12168/21):

D O’Gorman SC with B Coyne for the applicants

MR Hodge KC with SA McLeod KC, BI McMillan, RH Berry and PH Nevard for the respondent

The Attorney-General for the State of Queensland intervening in each matter:

N Kidson KC with FJ Nagorcka and KJE Blore

The Queensland Human Rights Commission intervening in each matter:

P Morreau

SOLICITORS:

In the Johnston (11254/21) and Witthahn (11258/21) matters: Alexander Law for the applicants

GR Cooper, Crown Solicitor for the respondents GR Cooper, Crown Solicitor for the first intervenor

Queensland Human Rights Commission for the second intervenor

In the Sutton matter (12168/21):

Sibley Lawyers for the applicants

GR Cooper, Crown Solicitor for the respondents GR Cooper, Crown Solicitor for the first intervenor

Queensland Human Rights Commission for the second intervenor

A pandemic is declared

1. In March 2020, the World Health Organisation (WHO) declared a pandemic based upon the extensive spread of a novel coronavirus disease called COVID-19.

2. Following that declaration, the Commonwealth, State and Territory governments began taking measures designed to prevent the spread of the disease. Australia’s borders were closed to non-residents. Internal borders were closed to varying extents. Social distancing rules were introduced. People were required to wear masks in particular circumstances. Lock downs of varying lengths and intensity were applied.

3. In February 2021, the first doses of a COVID-19 vaccine were administered in Australia. A “roll-out” of vaccines followed that. Some private and government employers required their employees to receive an identified number of doses of a recognised vaccine. An employee’s failure to comply with such a requirement could put that employee at risk of termination of employment or other disciplinary action.

The applications

1. There are three applications before the court. Two concern directions given by the Commissioner of Police that each police officer or staff member had to receive doses of a COVID-19 vaccine (the Sutton and Johnston matters). The third case concerns a similar direction given to the employees of the Queensland Ambulance Service (the Witthahn matter) by the Director General of Queensland Health.

2. In each matter:

   (a)The broad decision to be made is whether the particular directions were lawful.¹

   (b)The essential relief sought is an order that the directions should be set aside. The applicants rely on various grounds available under the Judicial Review Act 1991 (JRA) and other legislation, in particular, the Human Rights Act 2019 (HRA).

3. While it is asserted by each applicant that the relevant decision-maker acted unreasonably or contrary to statutory obligations by failing to revoke the relevant direction and that the directions (if otherwise valid) became invalid at some time before this matter was heard, the only relief sought is with respect to the directions which were made.

The nature of this type of application

1. Where an application of this kind is made, which does not involve the HRA, then there are well established principles to be observed. It is a judicial review not a merits review. As Brennan J put it in Attorney-General (NSW) v Quin:² “ … the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise.”

2. When a court is judicially reviewing a decision for unlawfulness under the HRA it does not reconsider a primary act or decision on the merits. The jurisdiction of the Court is supervisory, not substitutionary. It is to determine whether the act or decision is unlawful by reference to the human rights standards in the HRA, not to make a determination on the merits of the matter which is in substantive issue. Relief cannot be granted simply because the court takes a different view of the act or decision on the merits.3 There are, though, differences in approach due to the test of proportionality evident in s 13 of the HRA – that is dealt with later in these reasons.

¹In the Johnston matter, relief sought against the Chief Health Officer (the third respondent) was not pressed in light of an appeal relating to the status of the directions he had made. See Hunt & Ors v Gerrard & Ors (2022) 13 QR 1; [2022] QCA 263.

1. (1990) 170 CLR 1 at 36.

2. PJB v Melbourne Health; Patrick’s Case (2011) 39 VR 327; Gardiner v Attorney- General (Vic) (No 3) [2020] VSC 516; Certain Children (No 2) (2017) 52 VR 441; Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250.

What were the directions?

Johnston and Sutton matters

1. On 7 September 2021 the Commissioner of Police issued a direction pursuant to ss

   4.8 and 4.9 of the Police Service Administration Act 1990 (PSAA) – the Instrument of Commissioner’s Direction No. 12 (Direction No. 12). It was revoked and replaced by Instrument of Commissioner’s Direction No. 14 of 14 December 2021 (Direction No. 14). The two directions (the QPS Directions) applied to all police officers appointed pursuant to s 2.2 of the PSAA and all staff members appointed under other sections of the PSAA and the Public Service Act 2008.

2. Direction No. 14 required that all police officers and staff members were, subject to certain exemptions, to:

   (a)receive at least one dose of a COVID-19 vaccine by 4 October 2021;

   (b)receive a second dose of the COVID-19 vaccine by 17 December 2021;

   (c)receive a booster dose of a COVID-19 vaccine no more than one month after they become eligible to do so, in accordance with the advice of the Australian Technical Advisory Group on Immunisation (ATAGI) on the use of a booster dose of COVID-19 vaccine at that time, or if already eligible to do so at the time of the direction, no more than one month after the date of the direction; and

   (d)provide evidence of receiving the COVID-19 vaccine if required by the Commissioner of Police (or delegate) to their direct report and record the information on Employee Self Service within two days of receiving the vaccine unless otherwise agreed with their direct report.

3. The Direction provided for exemptions from the requirements for vaccination. Those exemptions could be granted:

   (a)if the employee was unable to be vaccinated “due to a medical contraindication” – the employee had to provide evidence of the condition and whether it was temporary in nature; or

   (b)if the employee had a genuine religious objection or there were other exceptional circumstances.

The Witthahn matter

1. Dr Wakefield, the respondent, was at the relevant time the Director General of the Department of Health. He issued a number of directions to Queensland Ambulance Service (QAS) staff. The direction the subject of these proceedings was made on 31 January 2022. It required that employees must, subject to certain exemptions:

(a)receive both the first and second dose of a COVID-19 vaccine by 27 February 2022;

(b)maintain vaccine protection; and

(c)provide evidence of receiving the COVID-19 vaccine confirming that they have received the prescribed number of doses of the vaccine to their line manager or other designated person no later than seven days after receiving each dose of the vaccine (the QAS direction).

1. An employee, if unable to be vaccinated, had to complete an exemption application form. Exemptions would be considered in the following circumstances:

   (a)where an existing employee had a recognised medical contraindication;

   (b)where an existing employee had a genuinely held religious belief; and

   (c)where another exceptional circumstance existed.

The various cases

1. The evidence in each matter was evidence in the other matters. The applicants contributed to an efficient use of time by each set of counsel concentrating on different matters of common concern and, thus, avoiding duplication of evidence and argument. The respondent in each matter did likewise.

Johnston – what relief is sought?

1. The Johnston applicants seek a declaration or declarations that the QPS Directions are invalid pursuant to:

   (a)section 30 of the JRA; or

(b)sections 43 and 47 of the JRA; or

(c)section 10 of the Civil Proceedings Act 2011; or

(d)the inherent jurisdiction of the Court.

1. In the alternative, they seek an order

   (a)pursuant to s 30 of the JRA that the QPS Directions be set aside; or

(b)pursuant to ss 43 and 47 of the JRA that the QPS Directions be quashed; or

(c)pursuant to ss 43 and 47 of the JRA or the inherent jurisdiction of the Court, restraining the First Respondent from acting in respect of the QPS Directions.

Sutton – what relief is sought?

1. The Sutton applicants seek the same relief with respect to both Direction No. 12 and Direction No. 14, namely:

   (a)declarations that pursuant to s 43 and s 47 of the JRA or, alternatively, s 10 of the Civil Procedure Act 2011 or, alternatively, s 58 or s 59 of the HRA or, alternatively, the Court’s inherent jurisdiction that the First Respondent’s decision to make Direction No. 12 was made in a way:

   (i)which was not compatible with human rights (ss 8, 17(c) and 58(1)(a) of the HRA); or

   (ii)that failed to give proper consideration to human rights relevant to the decision within the meaning of s 58(1)(b) of the HRA; or

   (iii)contravened s 20 of the HRA; and

   (b)a declaration that Direction No. 12 is invalid and that it be quashed or set aside.

2. Similar relief is sought with respect to Direction No. 14.

Witthahn – what relief is sought?

1. The Witthahn applicants seek identical relief to that claimed by the Johnston applicants save that it refers to the decision made by Dr Wakefield on 31 January 2022 (the QAS Decision) to approve the Employee COVID-19 Vaccination Requirements: Human Resources Policy.

What is the relevant time period?

1. Each of the parties seek relief based – broadly – upon alleged failures to take into account relevant matters. Whether the relief concerns the JRA, the HRA or the inherent jurisdiction of this Court, the application concerns the lawfulness or validity of a particular decision. That is to be assessed by reference to the circumstances at the time the relevant decisions were made.

2. The issue of the relevant time was considered by the High Court in Minister for Home Affairs v DUA16:⁴

   “[26] A requirement of legal reasonableness in the exercise of a decision- maker’s power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn “from the facts and from the matters falling for

1. (2020) 271 CLR 550.

consideration in the exercise of the statutory power”.” (emphasis added, citations omitted)

1. If legal reasonableness is to be assessed at the time the relevant decision was made, then there are strong grounds for applying the same reasoning to consideration of matters under the HRA. Whether, for example, an action can be demonstrably justified in the sense used in s 13 HRA, will depend upon the circumstances at the time of making the decision.

2. It is also consistent with general principles that a finding that a person has committed an unlawful act or made a decision that was unlawful (under s 58 HRA) should not be made on the basis of facts which have become known or events which have occurred after the act or decision.

3. That conclusion is fortified by consideration of s58(1)(b) which makes it unlawful "in making a decision, to fail to give proper consideration to a human right relevant to the decision.” That failure can only occur at or before the time of making the decision.

4. Section 58(2) provides that s 58(1) does not apply if the public entity could not reasonably have acted differently or made a different decision because of a statutory provision, or a Commonwealth or State law, or otherwise under law. That provision could only apply to a law which existed at the relevant time, that is, when the decision was made.

5. Section 58(5) also anchors any “unlawfulness” to the time of making the decision. It provides that “proper consideration” includes identifying the human rights that may be affected and considering whether the decision would be compatible with human rights. Those are actions which can only be taken in the time leading up to the making of the decision and not afterwards.

6. A consistent, but not explicit, approach was taken by Ginnane J in Loielo v Giles⁵ where his Honour considered whether the decision to implement a curfew during the pandemic was justified under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). The curfew was revoked the day before the hearing began. Ginnane J said that he did not consider that he could take the timing of the revocation of the curfew as undermining the decision as to the reasonableness necessity of the curfew. Similarly, in an interlocutory decision,⁶ Richards J “considered that the prospect of the expert witnesses being able to give relevant and useful evidence would be improved if they were instructed to base their opinions on assumptions that reflected the situation in Victoria at the time each of the Vaccination Directions was given.”⁷

1. (2020) 63 VR 1.

2. Harding v Sutton (No 2) [2021] VSC 789.

3. Ibid at [24].

1. This approach is also consistent with Lord Bingham’s statement in Regina (SB) v Governors of Denbigh High School⁸ where he said that the court “must now make a value judgement, an evaluation, by reference to the circumstances prevailing at the relevant time”.

2. The approach taken in New Zealand can be distinguished. In Yardley v Minister for Workplace Relations and Safety⁹ the Minister had made an order that work carried out by certain police and defence force personnel could only be undertaken by workers who had been vaccinated. Cooke J said that the Court could not be confined to the evidence that was before the Minister when the order was made.¹⁰ He said the court should take into account factors in evidence that post-date the decision implementing the measure. There are a number of reasons why that approach does not apply in this jurisdiction. First, the New Zealand Bill of Rights Act 1990 does not contain an equivalent of s 58 and s 59 of the HRA. It follows that there is no need to ensure that the act or decision impugned on independent grounds is the same act or decision impugned on human rights grounds. Secondly, the relevance of subsequent developments is “a consequence of the constitutional nature of review” under the NZ BOR Act.¹¹ Thirdly, the relevant statute imposed a duty on the Minister to keep the orders he had decided to implement under review. “That”, Cooke J said, “reflects a legislative intention to monitor the justifications for orders in light of changing circumstances.” As is discussed later in these reasons, the legislation relevant to these matters (and the common law of implied duties on Dr Wakefield’s argument) does not contain any such obligation.

Unlawfulness and invalidity

1. An act or decision which is found to be unlawful under s 58(1) is not, merely because of that finding, invalid – s 58(6). The Attorney-General submits, and I agree, that s 58(6) is the answer to the question posed in Project Blue Sky v Australian Broadcasting Authority,¹² that is, “[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.”¹³ Although s 58(6) makes it clear that a breach of s 58(1) does not amount to jurisdictional error and, therefore, a declaration of invalidity is not available, it does not prevent the making of a declaration of an unlawful act or decision, if that is otherwise appropriate.

1. [2007] 1 AC 100 at [30].

2. [2022] NZHC 291.

3. Ibid at [80].

4. NZDSOS Inc v Minister for COVID-19 Response [2022] NZHC 716 at [63].

5. (1998) 194 CLR 355.

6. At [93].

The alleged failure by each respondent to revoke the directions

1. Each set of applicants sought, and was granted leave, to amend their respective applications to include a new ground in support of their claims. There were slight differences in the way in which they were worded.

2. In the application by the Johnston applicants, the additional ground was included in support of the assertions that the making of the QPS Directions was an improper exercise of the power conferred by the PSAA:

   “15A Further, or alternatively, pursuant to section 22 and/or Part 5 of the JRA, and/or the Court’s inherent jurisdiction, from on or about the time of making the No 14 Direction, the First Respondent has acted unreasonably and/or contrary to her statutory obligations pursuant [to] s 4.9 of the PSAA, by failing to make a direction to revoke the No 14 Direction as the No 14 Direction is no longer necessary to assist in containing or responding to the spread of COVID-19.”

3. In the application by the Sutton applicants, the additional ground was included in support of the assertion that the QPS Directions constituted an error of law:

   “12 Further, or alternatively, pursuant to section 22 and/or Part 5 of the JRA, and/or the Court’s inherent jurisdiction, from on or about the time of making the Second Direction, the First Respondent has acted contrary to her statutory obligations pursuant to s 4.9 of the PSAA, by failing to make a direction to revoke the Second Direction as the Second Direction is no longer necessary to assist in containing or responding to the spread of COVID-19 and was therefore not required for the efficient and proper functioning of the police service.”

4. In the application by the Witthahn applicants, the additional ground was included in support of the assertion that the making of the QAS Direction was an improper exercise of power:

   “15A Further, or alternatively, pursuant to section 22 and/or Part 5 of the JRA, and/or the Court’s inherent jurisdiction, from on or about the time of making the Second QAS Direction, the Respondent has acted unreasonably and/or contrary to his statutory obligations by failing to make a direction to revoke the Second QAS Direction as the Second QAS Direction is no longer necessary to assist in containing or responding to the spread of COVID-19.”

5. Section 22 of the JRA provides:

   “(1)  If—

   (a)     a person has a duty to make a decision to which this Act applies; and

   (b)     there is no law that fixes a period within which the person is required to make the decision; and

   (c)     the person has failed to make the decision;

   a person who is aggrieved by the failure of the person to make the decision may apply to the court for a statutory order of review in relation to the

failure to make the decision on the ground that there has been unreasonable delay in making the decision.

(2)     If—

(a)     a person has a duty to make a decision to which this Act applies; and

(b)     a law fixes a period within which the person is required to make the decision; and

(c)     the person failed to make the decision before the end of the period;

a person who is aggrieved by the failure of the person to make the decision within the period may apply to the court for a statutory order of review in relation to the failure to make the decision within the period on the ground that the person has a duty to make the decision despite the end of the period.

…”

1. Section 22(2) is irrelevant as there is no law that fixes a period within which either the Commissioner or Dr Wakefield was required to make a decision to review of revoke any of the directions. The respective applicants accepted that, but argued that s 22(1) applied because the relevant respondents had a duty to review the directions and make a decision.

2. Section 22 allows an order for review to be made about a failure to make a decision. None of the applicants sought any such order. Rather, each of them introduced these “new” claims as a ground in support of another allegation. The introduction of this extra “ground” in each application was misconceived. Section 22 of the JRA does not create a duty, but it can act upon a duty. Similarly, neither Part 5 of the JRA nor the Court’s inherent jurisdiction create a duty for the purposes of s 22.

3. The Johnston applicants, in their opening submissions in reply, claimed that they did seek such an order but that was not reflected in the relief sought in the amended originating application and was inconsistent with the relief they claimed in their opening submissions. In the latter document they only sought orders with respect to Direction No. 14. During argument the Johnston/Sutton applicants identified alternative dates on which they argued the Commissioner should have revoked Direction No. 14 but, apart from the omission to seek relief, given my conclusion about s 58(1) there is no need to pursue this point.

4. If it were assumed, in favour of the applicants, that the relevant Directions should have been revoked that does not say anything about the validity of the Directions at the time they were made. That assessment is made in the light of the conduct and knowledge of the decision-maker at the time of making the decision, not by reference to conduct after the decision or facts which arise or become known after the decision was made. In other words, even if there were a duty to review, a failure to do so does not affect the validity of the original decision.

The alleged failure to revoke the directions – the Johnston argument

1. Johnston submitted that the direction made under s 4.9 of the PSAA cannot be necessary or convenient for the efficient and proper functioning of the police service for an indefinite period of time. Because what is “necessary or convenient” may change over time, the Commissioner has a duty to review the need for the Direction over time. In the oral submissions at the beginning of the hearing, Mr Villa SC identified four dates upon which the Commissioner was or ought to have been on notice of the need to review. They were confirmed in the final written submissions as being:

   (a)9 February 2022 – when Professor Petrovsky’s report was served;

   (b)25 March 2022 – when the ATAGI released advice that no longer recommended booster shots for healthy members of the population;

   (c)9 May 2022 – when Professor Petrovsky’s supplementary report was served; or

   (d)20 May 2022 – when Professor Petrovsky’s report of 29 March 2022 was served in these proceedings.

2. In their written opening submission the Johnston applicants contended that the basis upon which they made their case was not confined to the circumstances at the time that each decision was made. Rather, they argued, where the subject matter of a decision is the imposition of onerous requirements on employment, justified by reason of specific circumstances occurring at specific times, once the justification for the decision has subsided, the Commissioner can no longer be satisfied of the necessity for the condition, or will act unreasonably in failing to revoke the Direction. For that reason, it was argued, the evidence as to the “ongoing evolution of the SARS- COV-2 continues to be relevant to the issues in the present case.”

3. That contention is the basis upon which the Johnston applicants argue that evidence from experts about what became known after Direction No. 14 is relevant.

4. In an application for judicial review of a decision to which the JRA applies, the identification of the particular decision or decisions is necessary. The type of relief sought with respect to such a decision will dictate the boundaries of relevance in the evidence which may be adduced. It follows, then, that it is the relief to which one looks in order to determine relevance. In the closing written submissions by Johnston the orders sought were:

   (a)if the applicants succeed on any of the Part 3 grounds then an order should be made quashing the decision to issue Direction No. 14 and setting aside the whole of that Direction (apart from the clause revoking Direction No. 12);

   (b)if the applicants succeed only in respect of jurisdictional errors then a declaration should be made that the QPS Directions are invalid or unlawful and

that an order quashing them and setting aside the QPS Directions should be made; and

(c)in any event, the Commissioner should be restrained from acting in reliance upon the QPS Directions.

1. The reference to “Part 3 grounds” in those submissions is a reference to the arguments advanced with respect to the “jurisdictional error” and misconstruing the nature content and scope of the rights provided for under the HRA and the absence of evidence to justify the making of the Direction.

2. In Johnston’s Opening Written Submission it is contended that: “the Applicants by their further amended application at [15A] and [15B] do seek statutory review pursuant to s 22 of the JRA of the First Respondent’s failure to make a decision to revoke the QPS decision. Therefore, matters arising after the QPS Direction was given are relevant for the Court’s consideration.”

3. It is then put that the justification process in respect of which the Commissioner bears the onus (s 58(1)(a) of the HRA – dealt with later) justifies examination of matters which occur after the making of the relevant decision.

4. In addition, it is argued that s 23 and s 24AA of the Acts Interpretation Act 1954 are relevant.

5. So far as is relevant, s 23(1) provides: “If an Act confers a function or power on a person or body, the function may be performed, or the power may be exercised, as occasion requires.”

6. Section 24AA provides:

“If an Act authorises or requires the making of an instrument or decision—

(a)     the power includes power to amend or repeal the instrument or decision; and

(b)     the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.”

1. The power exercised by the Commissioner in revoking Direction No. 12 is found in s 24AA.

2. The Johnston applicants argue that, given the limits imposed on the applicants’ human rights by the QPS Direction, it must follow that, to the extent that the decision is valid and the Commissioner was empowered to make it, then as an incident of such power the Commissioner must also be subject to a duty to review the decision once made, and to revoke it once it was no longer necessary. The Direction was no longer necessary when any interference with human rights would no longer be reasonable,

proportionate or otherwise justified and “less restrictive and reasonably available” measures would be available – see s 13(2)(d) HRA.

1. Section 4.9 of the PSAA does not, on its face, impose a duty to reconsider. Whether a particular discretionary power carries with it a duty to consider its exercise, is a question of construction and is heavily dependent upon the context in which that duty is expressed.

2. A helpful analysis of this type of situation can be found in Animals Angels' eV v Secretary, Dept of Agriculture.¹⁴ In that case, it was held that the “permissive” language of the statute which conferred a power with regard to enforcing and varying licences was neither to be coupled with a duty to exercise it nor with a duty to consider its exercise. Edmonds J relied upon the reasoning of four members of the High Court in Minister for Immigration and Citizenship v SZGUR¹⁵ who held that there could be no duty to consider whether to exercise a power if there were no duty to exercise the power.¹⁶

3. In Yasmin v Attorney-General of the Commonwealth¹⁷ a Full Court of the Federal Court said:

   “[113] … it is a matter of statutory construction and as we have noted above, fixing on an approach that begins with a “presumption”, or a starting point, may be unhelpful and apt to mislead. It is also unnecessary. The question whether when Parliament reposes a discretionary power in a person, it intends to repose with it a duty to consider and determine whether to exercise the power (favourably or unfavourably) is not to be resolved by reference to any rule courts can assume Parliament and its legislative drafters are constructively, or actually, aware of, such as the proposition that in the absence of some clear contrary intention, a legislative provision will not be construed so as to have a retrospective operation (see Maxwell v Murphy (1957) 96 CLR 261 at 267;

   [1957] ALR 231 at 232–3 ).

4. The power in s 4.9 is exercisable by the Commissioner from time to time when the Commissioner considers it “necessary or convenient for the efficient and proper functioning of the police service”. There is no statutory mechanism by which somebody might apply to the Commissioner for the making of such a direction or its revocation. But, there is no prohibition on anyone affected by a Direction requesting that the Commissioner reconsider, vary, or revoke a direction. An application of this kind can be construed as such a request.

5. Notwithstanding the assertion that the Commissioner had a duty to revoke, no relief was sought in the amended application in terms of s 22 of the JRA, that is, there was no application for a statutory order of review in relation to the failure to make a

1. (2014) 228 FCR 35.

2. (2011) 241 CLR 594.

3. Ibid at [22] (French CJ and Kiefel J), [91] (Heydon J), [92] (Crennan J).

4. Yasmin v Attorney-General of the Commonwealth (2015) 236 FCR 169.

decision covered by s 22(1). It follows that the usual situation applies – only the facts and circumstances which obtained up to the making of Direction No. 14 are relevant.

The alleged failure to revoke the directions – the Sutton argument

1. The relief sought in the amended application by the Sutton applicants is set out above. The response to that, so far as this point is concerned, is the same as that given to the Johnston argument on this point. The Sutton applicants, though, did nominate nearly two dozen dates upon which they contended the Commissioner should have conducted reviews of the Directions. They did not seek that the Commissioner be ordered to revoke the QPS Directions.

2. I reject their arguments about the duty to review for the reasons I gave in the Johnston matter.

3. The Sutton applicants did seek an order in the alternative. If it were to be held that Direction No. 14 was valid, then they sought an order that the Commissioner be required to consider whether Direction No. 14 should be revoked under s 362E of the Public Health Act 2005. That is not available because the section (which has since expired) only applied to “public health directions” given by the Chief Health Officer and only that officer could revoke such a direction.

The alleged failure to revoke the directions – the Witthahn argument

1. The Witthahn applicants sought orders in terms similar to those sought by Johnson.¹⁸ The considerations given to the Johnston submission on this point apply equally.

The directions have been revoked – what is the effect?

1. On 12 December 2022 the Commissioner revoked Direction No. 14 with effect from that date.

2. On 21 September 2023 the Acting Director-General of Queensland Health approved the repeal of the QAS Direction with effect from 25 September 2023.

3. I received further submissions from the parties about the effect of these revocations. The parties in each matter agree that the revocation or repeal of the respective directions confines the relief which is available but that otherwise the applicants retain their standing.

4. The extent to which relief may be confined is considered below.

1. The first order sought by Witthahn is one quashing the directions made by the Commissioner of Police. I have read that as intending to refer to Dr Wakefield.

The requirements of s 58 HRA

1. The Commissioner of Police bears great responsibilities for a police service charged with the prevention of crime, the apprehension of those who break the law, and the general safety of the people of Queensland. The QPS has a large workforce spread across a large State and the Commissioner must take into account their welfare in the exercise of her powers. It was not challenged by any of the parties that the requirements of the job mean that the Commissioner cannot be aware of or familiar with every detail of the work done by the QPS. As with anybody with such broad duties, the work can only be done if others provide the Commissioner – as a decision- maker – with advice and recommendations. And that is how the Commissioner, as the embodiment of the QPS (a public entity for the purposes of s 58 of the HRA), ordinarily works. But the proper exercise of some responsibilities requires more than just the acceptance of advice. And, in this case, that responsibility is contained in s 58(1) and s 58 (5) of the HRA.

2. Section 58 relevantly provides:

“58    Conduct of public entities

(1)     It is unlawful for a public entity—

(a)     to act or make a decision in a way that is not compatible with human rights; or

(b)     in making a decision, to fail to give proper consideration to a human right relevant to the decision.

(2)     Subsection (1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law.

Example—

A public entity is acting to give effect to a statutory provision that is not compatible with human rights.

…

(4)     This section does not apply to an act or decision of a private nature.

(5)     For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—

(a)identifying the human rights that may be affected by the decision; and

(b)considering whether the decision would be compatible with human rights.

(6)     To remove any doubt, it is declared that—

(a)     an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and

(b)     a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).”

The obligations imposed by s 58

1. Section 58(1) imposes two obligations on the respondent:

(a)Substantive: not to make a decision in a way that is incompatible with human rights: s 58(1)(a); and

(b)Procedural: not to fail to give proper consideration to a relevant human right in making a decision: s 58(1)(b).

The Substantive limb

1. The phrase “compatible with human rights” is defined in s 8 and involves a “two- stage” inquiry:¹⁹

(a) whether the relevant act or decision placed a limit on the human right: s 8(a),

(b) if there is a limit, whether the limit is justified under the test of proportionality set out in s 13: s 8(b).

1. Section 8 of the HRA defines what is required for a decision to be compatible with human rights:

“8     Meaning of compatible with human rights

An act, decision or statutory provision is compatible with human rights if the act, decision or provision—

(a)     does not limit a human right; or

(b)     limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.”

1. The applicant bears the onus of establishing that the decision imposes a limit on human rights.²⁰

2. If that is established, the respondent bears the onus of justifying the limit.²¹

¹⁹See Re Kracke and Mental Health Review Board (2009) 29 VAR 1 at 31 [88], 33 [96]-[97] per Bell J (“Re Kracke”).

1. Ibid at [108].

²¹Explanatory Note, Human Rights Bill 2018 at 16; R v Oakes [1986] 1 SCR 103 at 136-137 per Dickson CJ; Multani v Commission Scolaire Marguerite-Bourgeoys [2006] 1 SCR 256 at 282 [43] per Charron J; R v Hansen [2007] 3 NZLR 1 at 42

[108] per Tipping J; Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415 at 448-449 [147] per Warren CJ; PJB v Melbourne

1. An act or decision will limit a human right if it “places limitations or restrictions on, or interferes with, the human rights of a person.”²² This inquiry involves considering the scope of the right. The scope of the right should be “construed in the broadest possible way”²³ by reference to the right’s “purpose and underlying values”.²⁴

2. In Certain Children (No 2) Dixon J suggested a two-step process for assessing incompatibility:²⁵

   (a)     The plaintiff/applicant for human rights relief need only establish prima facie incompatibility before the burden shifts to the defendant public entity to justify the limitations caused by their action/decision.

(b)     The burden on the public entity to justify limitations is high, requiring a degree of probability commensurate with the occasion, and must be strictly imposed in circumstances where the individual concerned is particularly vulnerable.

1. Victorian authorities²⁶ suggests that that an allegation of incompatibility under the Victorian equivalent of s 58(1)(a) of the HRA should be considered in the following way:

(a)     First, identify whether any human right is relevant to or engaged by the impugned decision or action of the public authority (the engagement question). A human right will be engaged if that right is apparently limited. A right may be engaged but not limited.

(b) Secondly, determine whether the decision or action has limited that right (the limitation question). A right will be limited (for the purposes of s 8 of the HRA) if it is restricted or interfered with.

Health; Patrick’s Case (2011) 39 VR 373 at 441-442 [310] per Bell J (“Patrick’s Case”).

1. Innes v Electoral Commission of Queensland [No 2] (2020) 5 QR 623 at [290];

   Patrick’s Case at 384 [36] per Bell J.

²³Re Application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415 at 434 [80] per Warren CJ; Re Kracke [97] per Bell J; Re Director of Housing and Sudi [2010] VCAT 328 at [93] per Bell J; Castles v Secretary, Department of Justice (2010) 28 VR 141 at 157-158 [55] per Emerton J (“Castles”); De Bruyn v

Victorian Institute of Forensic Mental Health (2016) 48 VR 647 at 691 [126] per Riordan J; Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children (No 1) (2016) 51 VR 473 at 496 [143] per Garde J; Islam v Director-General, Department of Justice and Community Safety Directorate [2018] ACTSC 322 at [67]-[68] per McWilliam AsJ.

1. DPP (Vic) v Kaba (2014) 44 VR 526 at 556 [108] per Bell J; Re Kracke at 29 [79].

2. Certain Children (No 2) at [203].

3. Sabet v Medical Practitioners Board (Vic) (2008) 20 VR 414 at [108]-[109], Baker v

   DPP (Vic) (2017) A Crim R 318 at [56], Thompson v Minogue (2021) 67 VR 301 at

   [96].

(c) Thirdly, consider whether the limit is under law, reasonable and demonstrably justified having regard to the matters set out in s 13(2) of the HRA (the proportionality or justification question).

The Procedural limb

1. The test for a similar provision under the Charter was paraphrased by Tate JA in Bare²⁷ in this way:

   “… for a decision-maker to give ‘proper’ consideration to a relevant human right, he or she must: (1) understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision; (2) seriously turn his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person; (3) identify the countervailing interests or obligations; and (4) balance competing private and public interests as part of the exercise of justification.”

2. Section 58(5) of the HRA imposes a more detailed requirement than does the Charter

   — proper consideration includes identification of the human rights that may be affected by the decision.

3. The test in Bare was considered by the Victorian Court of Appeal in Thompson v Minogue²⁸ and, subject to the need to identify the affected human rights, it provides guidance in considering whether s 58(5) has been satisfied. A unanimous court²⁹ added this to the process of analysis:

   (a)the factors in [s 13 HRA] may provide a useful framework or reference point for the balancing of competing private and public interests which limb 4 of the HJ test requires;

   (b)the phrase ‘as part of the exercise of justification’ in element 4 of the HJ test does not import into the procedural limb of [s 58(1)(b) HRA] the requirements of [s 13 HRA];

   (c)a public authority may give proper consideration to a relevant human right without giving direct and express consideration to each of the matters set out in [s 13]. A construction that required such consideration would be contrary to the principle derived from Castles that the procedural limb does not involve a sophisticated legal exercise and that there is no formula for compliance with it;

   (d)in giving proper consideration to a relevant human right in the manner required by the HJ test, a public authority will need to make a broad and general assessment of whether the impact that its conduct will have upon a relevant human right is appropriate in all the circumstances. That broad and general assessment is ‘the exercise of justification’ in element 4 of the HJ test. The

1. (2015) 48 VR 129 at [288]; HJ v Independent Broad-based Anti-corruption

   Commission (2021) 64 VR 270.

2. (2021) 67 VR 301.

3. Kyrou, McLeish and Niall JJA.

matters in [s 13] may, in appropriate cases, assist a public authority in making that broad and general assessment; and

(e)the adjective ‘proper’ means that the standard of consideration must be higher than that generally applicable at common law to taking into account relevant considerations.

The making of the QPS Directions

1. I turn now to the evidence relating to the making of the Directions.

1. Deputy Commissioner Smith prepared a memorandum for the Commissioner – dated

   23 August 2021 – on the subject of “Workforce risks and vaccination of our workforce”. In that memorandum he provided a brief historical overview of the pandemic and set out excerpts from reports by the Queensland Chief Health Officer, the World Health Organisation and the Commonwealth Department of Health among others. He made the following points:

   (a)that it was necessary to assess the current risk and potential impacts of Covid- 19 on the QPS especially the increase in threat caused by the Delta variant;

   (b)that the US National Center for Immunization and Respiratory Diseases had said that:

   (i)the Delta variant is more contagious;

   (ii)it might cause more severe illness;

   (iii)the vast majority of hospitalisation and death caused by Covid-19 are in unvaccinated people;

   (iv)unvaccinated people remain the greatest concern; and

   (v)fully vaccinated people can spread the virus to others but appear to spread it for a shorter time;

   (c)he summarised the effect of the information in this way:

   (i)the risks to the workforce from Covid-19 and the Delta strain in particular are quite significant and would have a devastating impact on police personnel;

   (ii)the risks can be significantly mitigated by the use of approved vaccines;

   (d)he summarised his advice and recommendations in this way:

   (i)the Commissioner of Police has the power to direct mandatory vaccination (dependent on the facts and circumstances at the time of giving the direction);

   (ii)the Commissioner of Police must ensure as far as practicable the health and safety of the QPS workforce;

(iii)a mandatory direction by the Commissioner of police with exceptions for contraindications and genuine religious objections would not amount to unlawful discrimination;

(iv)a mandatory direction by the Commissioner of Police would fall within the scope of powers under the Police Service Administration Act;

(v)a mandatory direction by the Commissioner of Police would be compatible with human rights under the Human Rights Act;

1. such a direction can be an obligation in contracts for police recruits;

   (vii)such an obligation can be made a condition of entry for police workplaces for non-police personnel such as contractors; and

   (viii)a requirement can be made for all police personnel to provide proof of vaccination to ensure compliance with a mandatory direction.

1. In his memorandum he made the following statements:

   (a)“The risks to the workforce from Covid 19 and the Delta strain in particular are quite significant and would have a devastating impact on our police personnel”.

(b)“The risks can be significantly mitigated by the use of approved vaccines”.

(c)“Evidence from other jurisdictions indicates that police officers in particular, but also front-line support staff who interact with and have contact with, or who are mission critical to the QPS, are very much at risk from the virus”.

(d)“Modelling indicates that QPS personnel have over 2 million contacts … With the community every year – not all of these in controlled circumstances with any degree of certainty around the health status of the people we are coming into contact with”.

1. Although the memorandum referred to “evidence from other jurisdictions” no such evidence was provided. Further, the “modelling” referred to was just a document created for the financial year 2019/20 entitled Queensland Police Service Daily Policing Demands. It did not provide any predictions of the effect of the pandemic on the QPS.

2. Deputy Commissioner Smith advised the Commissioner that:

   (a)a mandatory direction by her (with exceptions for contraindications and genuine religious objections) would not amount to unlawful discrimination;

   (b)a mandatory direction by her would fall within the scope of powers under the PSAA; and

   (c)a mandatory direction by her would be compatible with human rights under the HRA.

1. He recommended that “a direction be drafted under your authority pursuant to section

   4.8 and 4.9 of the Police Service Administration Act directing all police personnel to be vaccinated with an approved Covid – 19 vaccine with exemptions for those with medical contraindications, genuine religious objections or other exceptional circumstances.”

2. The Commissioner’s evidence was that she relied upon Deputy Commissioner Smith to assist her in making her decision with respect to the Directions.

3. The Commissioner accepted that, at the time of issuing Direction No. 12, the pandemic had been in existence for some 18 months. In her evidence, she was uncertain about how many QPS officers had contracted Covid-19 at that time. The only figure she could offer, and about which she remained uncertain, was that there may have been 15 to 20 QPS employees who had contracted Covid-19.

4. I find that the Commissioner made her decision to issue Direction No. 12 by no later than 1 September 2021. On that date Deputy Commissioner Smith informed members of a strategy steering committee that the Commissioner “has determined due to the risks we are potentially facing, the Commissioner will be giving a directive immediately for our people effective from Monday, 6 September 2021 [which will require vaccination]”. The Commissioner accepted that, at least as at the date of that meeting, she had communicated to Deputy Commissioner Smith that she had made a decision to issue a direction requiring vaccination for police officers and staff members.

5. Deputy Commissioner Smith agreed that he had reported to the members of the strategy steering committee that the Commissioner had determined that she was going to give a directive that would require:

   (a)all serving sworn police officers to be vaccinated;

   (b)all serving sworn police officers to receive a first dose of a COVID vaccine in October 2021; and

   (c)all serving sworn police officers to receive a second dose by 24 January 2022.

   and that there would be some limited exceptions to the requirements which would be dealt with on a case-by-case basis.

6. He was asked:

“And can you tell his Honour when, prior to the meeting, the Commissioner conveyed to you that she had made a decision to issue a direction requiring sworn police officers to be vaccinated in the terms that we have just discussed? – – – Yeah, she gave that indication that it was her intent on or about 23^rd of August, after I delivered that report to the Commissioner.”

1. That her decision had been made by about that time was confirmed in a letter of 3 September from the Commissioner (drafted by Deputy Commissioner Smith) to the Director-General of Queensland Health informing him of her intention to issue a Direction.

2. The Commissioner was cross-examined in detail about the process which led to her making the decision to issue Direction No. 12. Unfortunately, she did not appear to have given her evidence much thought before she entered the witness box. Her recollection was poor and she seemed to be unfamiliar with some of the documents which were at the heart of the case. She frequently had to peruse documents, sometimes at length, and sometimes when she was being asked questions unrelated to any documents. At one point, she was asked:

   “Can you tell his Honour which human rights you considered would be limited by the issuing of direction number 12?---There’s actually a number of human rights. There’s a right to life, there’s discrimination, there’s interference to your body. And there’s a number of others. But when I get briefed, I get briefed by others and they take me through it. To sit here and remember exactly the minute detail of a briefing at that time, I can’t do it.”

3. That answer was given immediately after the Commissioner had been shown the Human Rights Compatibility Assessment prepared by officers of the Crown Solicitor (HRCA No. 1) and after she was asked to close the folder in front of her.

4. On 30 September 2021 Boddice J ordered that the Commissioner provide a Statement of Reasons for the making of Direction No. 12. Those reasons were provided on 7 October in a document signed by the Commissioner. Although the Statement of Reasons concerned Direction No. 12 I have taken it to also record at least some of the reasons for making Direction No. 14 because of the Commissioner’s view (referred to below) that Direction No. 14 was an extension of Direction No. 12. That conclusion may be drawn because the latter direction reimposed the requirements of the earlier direction and added to them.

5. In the Statement of Reasons the Commissioner records the material which she had considered in arriving at her decision. It included the memorandum from Deputy Commissioner Smith. The memorandum had eight other documents attached to it. The Commissioner was cross-examined about which, if any, of those documents she had read. In her answers she said: “I would have either read those documents or been briefed on those documents” and “I would have either read part of them, skimmed part of them, read some of them and been briefed on them.”

6. The Statement of Reasons also included, strangely, her own letter to the Director- General of Queensland Health created after she made the decision. It was said to have been a document she considered in arriving at her decision.

1. The final document listed as having been considered is HRCA No 1. It is dated 7 September 2021which is the date that Direction No. 12 was issued but after the date on which the decision to issue was made

2. The Commissioner’s evidence in chief consisted of a two-page affidavit. In it she says:

   “6. I confirm that in making my decision to issue Direction No. 12, I considered and adopted the human rights compatibility statement exhibited at pages 256 to 264 to exhibit DS-02 to the First Smith Affidavit.³⁰

   7.       Similarly, I confirm that in making my decision to issue Direction No. 14, I considered and adopted the human rights compatibility statement exhibited at pages 105 to 110 to exhibit DS-20 to the Third Smith Affidavit.³¹

   8.       In making my decision to issue Direction No. 14, I also considered and adopted the human rights compatibility statement for Direction No. 12, to the extent its contents remainder relevant to my decision to issue Direction No. 14.”

3. In cross-examination she was asked:

All right. Now, can I ask you, then, please, to turn to page 256, which is the Human Rights Compatibility Assessment?---Yes.

Now, do you recall when you first were provided with this document? It’s not dated, I can - - -?---Yeah.

- - - indicate?---It would have been at the time that we were having the discussion to make the direction.

All right. Well, do I take it from that answer that you can’t recall when you first were provided with this document?---Not the exact date.

All right?---Yeah.

Was it the day that you made the direction?---The document may have – I can’t recall. You know, the – it was – this was part of many discussions, many briefings, and I can’t recall the exact date.

All right. But you tell his Honour, do you, that you had firstly received this document before you made the decision to issue Direction No. 12?---Yes.

And do you tell his Honour that you read this document before you made your decision to issue direction number 12?---Sorry, I’m just trying to think, because so much was happening. So whether I received the document. But I would have

1. The affidavit of Deputy Commissioner Smith of 16 November 2021.

2. The affidavit of Deputy Commissioner Smith of 10 March 2022.

been briefed several times throughout this entire period. So there’s a lot of difference between actually, your Honour, receiving the document but getting constantly briefed about what’s occurring. So the exact date of receiving the document would be a very different date to all of the information and the discussion and the briefings that I was having leading up to actually signing the document. So from August onwards, when we became well aware of vaccines and the protection of vaccines, a lot of information was brought to me. A lot of briefings took place, and a lot of – obviously, you know, documentation was prepared. Conversations happened often. So it wasn’t a case, your Honour, where I would get a document and there were not any briefings beforehand. In fact, briefings were quite – quite extensive. They commenced with, you know, briefing the executive leadership team. And then I would see my deputies two, three times a week on many issues, but this as well. So the conversation was constant, but the signing of the documentation doesn’t necessarily take place when the conversation does.

Commissioner, I’m going to ask the question again, and I’ll ask you to direct yourself to answering the question - - -?---Yep.

- - - and not make speeches. Is it the case that you, firstly, received this document before you made the decision to issue direction number 12?---I can’t answer that because I don’t know the date I signed this document.

Well, you didn’t sign this document, Commissioner?---Well, the date I received the document, sorry, in – in document format.

1. The Commissioner was asked whether she intended to convey by saying that she had adopted the human rights compatibility statement that she had adopted it as her own. She rejected that and said that she “actually considered what’s in it and then I will adopt it if I am satisfied with it”. She said that, independently of that compatibility statement, she had turned her mind as to whether or not her decision would limit the human rights of her officers.

2. The Commissioner also accepted that “to the extent that the Human Rights Compatibility Statement [did] not identify a right as being limited, that [was] not a right that [she had] considered in issuing direction number 12.” Later, she agreed that she didn’t identify the human rights herself – that had been done by Crown Law for her.

3. The Commissioner then agreed to the following propositions:

   (a)to the extent that there was an identification of the human rights that might have been limited by Direction No 12, that identification occurred by her being provided with HRCA No. 1;

   (b)to the extent that there was consideration of the kind required by the HRA as to whether or not the limits were justified, that consideration was provided to her in HRCA No. 1;

   (c)that she considered HRCA No. 1 and agreed with its contents; and

(d)that she understood that that was a process that had to be undertaken before making a decision to issue Direction No. 12.

1. It was then put to her that she had not received HRCA No. 1 until after she had made the decision which led to Direction No. 12. Her response was:

   “The documentation is a formality”.

1. In an exchange concerning HRCA No 1, the Commissioner gave an answer which was typical of much of her evidence:

   “I do not know the exact date I received the document. The document is a formality at the end result of a – a large amount of conversations. So if I was briefed extensively by Deputy [Commissioner] Smith that this was compatible and that was in a conversation, the conversation might be that, “I will bring you the document”. Then there’s another conversation. The conversations are numerous, the conversations are extensive, and many of them over many periods of time.”

2. It was suggested to her that, before receiving HRCA No. 1, she had not given any independent consideration to the extent to which proposed Direction No. 12 would limit or impact upon the human rights of police officers or staff members. The Commissioner rejected that, she said: “I definitely did”. There was then this exchange:

   “All right?---I knew from the very beginning that it would limit their rights. Definitely.”

3. I find that the Commissioner is mistaken in her recollection and that she could not have considered HRCA No.1 before she made the decision to issue Direction No. 12 because she could not have received it before then. HRCA No. 1 contains a footnote referring to a document which was published by the Therapeutic Goods Administration on 2 September 2021. I draw from that that HRCA No. 1 could not have been created until, at the earliest, 2 September 2021. It follows, then, that she could not have complied with s 58(1)(b) with respect to Direction No. 12.

4. Deputy Commissioner Smith gave evidence which was unsatisfactory in many respects. He was cross-examined about HRCA No. 1. He said that the document was provided to the Commissioner on two different occasions. He said that he received HRCA No. 1 on the last Friday in August, that is, 27 August and that he provided to the Commissioner on the following Monday, that is, 30 August. After some prevarication, he said that there must be more than one version of HRCA No. 1. He said that other versions of the document would be in the files in his office but, despite a call being made, no other version was produced.

5. In the final written submissions for the Commissioner it is contended that he prepared the memorandum for the Commissioner dated 23 August 2021. It is then submitted:

“12. Subsequently, he provided the memorandum, supporting materials and other documents, including the Human Rights Compatibility Assessment …, to the QPS Commissioner. That occurred on 7 September 2021.”

1. The Commissioner was asked whether the material listed in the Statement of Reasons was the “entirety of the material that you relied on in making your decision” to issue Direction No. 12. She answered: “So that would be yes, but I’m also party to many other discussions that happen either at the leadership board or directly with the CHO

   …”. Soon after that, she was asked:

“You tell his Honour now that, apart from this material, you also relied on the contents of discussions that you had with other people in making your decision to issue direction 12? – – – I relied on this material. Your Honour, I sit around the table with the CHO for many, many months, and whilst I depended on this, in the back of my mind I am always exposed to other information. This material is brought in front of me and I rely on it, but to think that I’ve had all of this information, it probably affirms what I’m relying on. So it’s a very difficult thing for me to just say I depended on this when I know I’m exposed to so much information on a daily basis over an extended period of time.”

1. There were then further exchanges which led to the Commissioner agreeing that conversations that she had had with the Chief Health Officer “influenced my decision and affirmed what was already in the information that I had.” This exchange then took place:

   “Do you now tell his Honour that some of the evidence that you based your findings of fact on may have included discussions with the Chief Health Officer? – – – So I depended on the Chief Health Officer’s report, but in addition to that, I had many discussions with the Chief Health Officer.”

2. The Commissioner was then asked questions about the Chief Health Officer’s report. She agreed that:

   (a)the report was for the year 2019/2020;

(b)it said nothing about the health status of anyone in September 2021;

(c)it said nothing about vaccinations relating to COVID; and

(d)to the extent that it said anything about COVID, it related to an earlier variant than the one affecting Queensland in September 2021.

1. Soon after those answers were given, this exchange took place:

“ … There is nothing in that document that is remotely relevant to your consideration of issuing Direction No. 12, is there? – – – It may have been, because … of the conversations and the briefings and the information that I got from my Deputy and we may have had a conversation about this and the relevance of it.”

1. A fair reading of the Chief Health Officer’s report leads to the conclusion that there is nothing in it which could inform the making of Direction No. 12. It was for the year 2019/2020. The declaration of the COVID pandemic did not take place until March 2020. In the introduction to the report, the then Chief Health Officer did refer to COVID-19 but in very general terms as might be expected given the nature of the document. There is nothing else in it of relevance to Direction No.12.

2. At the time of making Direction No. 12 the pandemic had been in existence for more than 18 months. The Commissioner did not have any information about:

   (a)whether any police officer who had contracted COVID-19 had transmitted the virus to another police officer;

   (b)the numbers of police officers who had contracted COVID-19 and transmitted it to members of the community; and

   (c)the numbers of police officers who had contracted COVID-19 from members of the community in the course of their duties.

3. In the Statement of Reasons (at paragraph 18), the Commissioner states:

“The nature and frequency of police officers’ interactions with members of the community, particularly vulnerable members of the community, results in a significantly increased risk of police officers contracting or transmitting COVID-19”.

1. There was no evidence before the Commissioner to support that statement. The QPS had not experienced significant numbers of police officers contracting COVID-19 during the first 18 months of the pandemic. The memorandum from Deputy Commissioner Smith – which had formed the basis of the Commissioner’s decision to issue Direction No. 12 – did not contain any statement to that effect.

2. Another document said to have been relied upon by the Commissioner was the “QPS Daily Policing Demands”. It was described by Deputy Commissioner Smith as “modelling”, but it was nothing of the sort. In any event, it said nothing about the risk of police officers contracting or transmitting COVID-19.

3. The Commissioner was taken to HRCA No. 1 and the section of it concerning whether the limits imposed struck a fair balance between the rights of the individual and the interests of the community. One of the benefits proposed was that there would be: “savings in indirect costs, such as loss of productivity and economic loss suffered as a result of police officers and staff members contracting the virus and developing COVID-19”. She was asked whether any attempt had been made to quantify those savings and she answered that it would have been very difficult to do that but that “we were comfortable … that there would be a loss of productivity and economic loss”. This exchange then took place:

1. I adopt what was said by Bell J in Patrick’s Case on this point:

“[316] The difference between judicial reviewing for unlawfulness against applicable human rights standards and doing so for unlawfulness against the Wednesbury unreasonableness standard was explained by Lord Steyn in his “justly-celebrated and much-quoted” judgment in R (Daly) v Secretary of State for the Home Dept . In his Lordship’s view, the proportionality criteria “are more precise and more sophisticated than the traditional grounds of review”. Lord Steyn went on to identify certain differences between the two standards of review, of which these are relevant to us:

‘First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relevant weight accorded to interests and considerations.’

[317] It can be seen that, by its very nature as a standard of review, proportionality draws the court more deeply into the facts, the balance which has been struck and the resolution of the competing interests than traditional judicial review. This gives rise to the issue of how the court is to provide effective judicial protection for human rights while at the same time respecting the administrative function of the public authority under its legislation and not drifting into merits review. One important way of addressing that issue is by

1. (2011) 39 VR 373.

2. See Thompson v Minogue at [98]; Gardiner v A-G (No 3) [2020] VSC 516 at [48] per Richards J; Certain Children (No 2) at [211].

3. (2010) 28 VR 141 at [145].

affording weight and latitude to the acts and decisions of primary decision- makers.” (emphasis added, citations omitted)

1. This was also considered in Thompson v Minogue¹⁴¹ where the Court of Appeal said this about the Victorian equivalent of s 13 and s 58 of the HRA:

“[98] It is sometimes said that, even though a greater degree of scrutiny is involved in assessing whether a public authority has acted compatibly with a human right, because the Court is undertaking its judicial review function, it is not entitled to enter upon the merits of the public authority’s decision-making and second-guess it: the Court’s jurisdiction is supervisory, not substitutionary. The task of the Court is to determine whether the impugned conduct of the public authority is unlawful because it did not comply with its human rights obligations under the Charter.

[99]    In the context of the procedural limb, that observation is self-evident. The substantive limb is more complex because the Court is determining the issue whether the impugned action was, or was not, compatible with human rights. It decides that question on the basis of evidence, which is not necessarily confined to that which the public authority may have relied upon in its own evaluation of whether the proposed action would be compatible with human rights. In a sense, the Court’s task is neither judicial review nor merits review, but the determination of a question of mixed law and fact. The distinction between judicial review and merits review in this context is therefore not necessarily helpful.

[100]    Some authorities also suggest that, in order to apply the correct degree of scrutiny without encroaching into the merits of the impugned decision, the Court should give ‘deference’, ‘respect’ or ‘latitude’ to the decision-maker. It will be apparent from our discussion of the procedural limb that we do not find these concepts helpful. As we have already stated in that context, the decision- maker’s expertise and experience may be taken into account in the Court’s assessment of whether the impugned decision is compatible with an applicable human right. The Court can give that expertise and experience such weight as is warranted in the particular circumstances of the case, without any preconception that they are to be given any particular deference, respect or latitude. But, in the end, the Court must decide for itself whether the public authority has acted incompatibly with human rights, and therefore unlawfully.

[101]    To state the obvious, conduct of a public authority can be declared to be unlawful if it is incompatible with a human right — contrary to the substantive limb of s 38(1) of the Charter — even if the public authority gave proper consideration to that right in accordance with the procedural limb. It is not necessary for us to consider the circumstances in which conduct which is found to be compatible with a human right will be declared to be unlawful due to noncompliance with the procedural limb.” (emphasis added, citations omitted)

1. In both Johnston/Sutton and Witthahn it was submitted that the relevant decision- maker had carefully weighed the competing considerations and, particularly in the

1. (2021) 67 VR 301.

case of the Commissioner, concluded that some interference with rights was justified. It is sometimes contended that a degree of deference should be afforded a decision- maker who has a highly developed appreciation of the make-up, structure and operations of a particular workforce. Both the Commissioner and Dr Wakefield would fall into that category. But what constitutes the appropriate weight to be afforded the decision-maker’s conclusion remains a matter for the court and “what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.”¹⁴²

1. The factors set out in s 13(2) are examples of what may be relevant but they do cover a large part of the consideration necessary for assessment.

   Section 13(2)(a) – nature of the human right.

1. Not all rights are equally important. Some, though, are recognised as absolute rights under the ICCPR. The right not to be subjected to medical treatment without full, free and informed consent is one of those.

   Section 13(2)(b) – nature of the purpose of the limitation.

1. The Commissioner contended that the purpose of the requirement was to minimise the risks of transmission of COVID-19 throughout the QPS and between police staff and members of the community and to ensure that QPS employees were “frontline- ready and available for deployment”. It was also said that Direction No. 14 was to combat waning immunity through the use of booster doses and thus serve the same purpose as in Direction No. 12.

2. Dr Wakefield argued that the purpose of the QAS Direction was similar to that of the Commissioner but with the addition that many of the persons with whom QAS staff would be in contact were “vulnerable” and, therefore, more susceptible to suffering harsher symptoms.

   Section 13(2)(c) – relationship between the limitation and its purpose and whether it helps to achieve the purpose.

3. This requires consideration of whether the limitation is rationally capable of achieving its intended purpose. Johnston/Sutton and Witthahn contended that the limitation cannot rationally achieve its intended purpose because, among other things, the protection afforded by vaccination wanes so quickly and to such an extent. The difficulty with that submission is that none of the directions purported to be designed for any long-term or permanent protection. The fact that Direction No. 14 was issued following the publication of ATAGI advice about the utility of booster shots demonstrates that, at least at that stage, changes in the COVID-19 environment were

1. R (SB) v Governors of Denbigh High School [2007] 1 AC 100 at [31] per Lord Bingham.

recognised. There was evidence that the vaccinations had an effect in protecting against serious infection. The necessary relationship has been demonstrated.

Section 13(2)(d) – whether there are any less restrictive and reasonably available ways to achieve the purpose.

1. This consideration requires that thought be given to other potential ways in which the purpose of the limitation could be achieved. If the purpose can be achieved by the use of other measures or if less restrictive means can be adopted then the limitation contained within the Directions will not be proportionate. This was the subject of considerable disagreement. The first thing that must be recognised is that Johnston/Sutton and Witthahn did not argue that vaccination could play no part in a program designed to reduce or avoid infection. It was not a binary choice. The argument was put by Mr Villa SC in this way: “vaccination does not need to be mandatory and so the comparison is between mandatory vaccination on the one hand and voluntary vaccination with other measures on the other hand. So our point is not that vaccination does not need to be mandatory. The point is that for the very small number of persons who object to mandatory vaccination, alternative measures will achieve materially the same benefit. And this is especially so in circumstances where direction 14 was being made with high rates of community vaccination uptake and even higher rates of vaccination uptake amongst QPS personnel.”

2. The alternative suggested by Mr Villa SC was that the purpose of the QPS Directions could be achieved by a regime of voluntary vaccination (which had already resulted in very high levels of vaccination in the QPS workforce) combined with requirements that those who are not vaccinated must comply with mask requirements. This, he said, was already recognised in Direction No 12 which provided that where a police officer or staff member who was exempt from the requirement for vaccination (due to a medical contraindication, or a genuine religious objection or an exceptional circumstance) would be required to comply with all public health directions made under the Public Health Act 2005 and carry a face mask at all times, wear a face mask when on duty and in an indoor space, and wear a face mask when on duty in an outdoor space where it is not possible to practise physical distancing. That demonstrated that the Commissioner regarded those as an adequate means of minimising transmission by and to those persons despite them not being vaccinated.

3. The QAS Direction also provided an exemption for medical contraindications, genuinely held religious beliefs, or exceptional circumstances. If an employee was granted an exemption they did not have to comply with the requirements for vaccination. There was no specific requirement in such a case for face masks, but there was no need as many of the employees were otherwise covered by public health directions under other legislation.

4. Associate Professor Seale gave evidence that managing the risk of COVID-19 in the workplace involved engaging with a hierarchy of different avoidance or mitigation

strategies. She said that multiple control strategies should be implemented at the same time and follow on from each other. In her opinion, based upon the reports to which she referred, vaccination ranked as the most effective control measure to prevent transmission of COVID-19 and the use of personal protective equipment ranked as the least effective measure. The studies upon which she relied emphasised the problems with personal protective equipment. They were almost entirely concerned with a failure to use the equipment in the proper way rather than the equipment itself being inadequate.

1. Professor Griffin was of the same mind. He said that risk control measures were typically viewed as complementary with no single method having 100% efficacy. He recognised that many of the “non-vaccination” strategies could not be applied in all settings within the QAS workforce. And I draw from that that a similar concern would exist with QPS staff in some of the situations in which they find themselves. The matter that was not adequately addressed though was whether it was possible to organise the workforce in such a way that those who had voluntarily been vaccinated worked in areas where protective equipment might not be as effective and those who had not been vaccinated were required to work in different areas.

2. In their reports, both Associate Professor Seale and Professor Griffin were of the view that the various prevention strategies work best when they were used in bundles, given the difficulties associated with ensuring compliance with personal protective equipment and of the limited capacity for tests (such as RAT tests) to achieve a meaningful sensitivity. Professor Griffin considered that the nature of the healthcare environment, and the interactions that took place in such an environment, meant that there were no reasonably available alternatives to vaccination.

3. In cross-examination Associate Professor Seale did accept that personal protective equipment which was used properly and the use of RATs were means by which risks could be avoided. She also accepted that the correct use of personal protective equipment would minimise risk provided that the appropriate product was used in the appropriate way.

4. The impositions of the QPS Directions and the QAS Direction were, largely, inflexible. While each of them provided for exemptions on the ground of medical contraindication or genuine religious belief or some other exceptional circumstance they imposed a regime which was not capable of taking into account any other circumstance which might be relevant to the issue of mandatory vaccination. The material which was before each decision-maker did not afford either of them the type of information which has been provided in this hearing.

5. The mandatory requirement that all employees be vaccinated (subject to the exceptions referred to above) did not recognise the high level of voluntary vaccination already apparent within the workforces. The requirement, then, was effectively directed to those who had declined vaccination or were yet to be vaccinated.

1. This criterion should be dealt with by, first, establishing the purpose sought to be achieved. The proposal to achieve that purpose should then be considered. Will it work as hoped? Then the alternatives, if any, should be identified. The manner in which the purpose might be achieved is not confined to, for example, employing one type of vaccine over another. The whole employment environment should be considered and the ways in which employees might be deployed should form part of the consideration.

2. Neither the Commissioner nor Dr Wakefield gave close attention to the possible range of solutions. Each was presented with a proposal for mandatory vaccination with little in the way of well-developed critiques of alternative means of reducing illness and infection.

3. While there were differences in expression by Associate Professor Seale and Professor Griffin on this topic, the balance of their evidence (which on this point I prefer) was that the alternatives to mandatory vaccination would not achieve the same purpose.

   Section 13(2)(e)-(g) - the balance between the importance of the purpose of the limitation, and the importance of preserving the human right, taking into account the nature and extent of the limitation.

4. There are a number of factors which have already been referred to and some which need consideration under this heading.

5. Direction No. 14 was not confined to QPS staff who fell into high risk categories. It applied to all QPS officers appointed under s 2.2 of the PSAA. It only exempted those with a medical contraindication, a genuine religious objection, or some other exceptional circumstances.

6. The rights identified under the HRA must always be considered in light of the words used in s 13(1) – right subject to limits which can “be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.” Those rights are held by all persons and, so, the right of one person should be viewed in the light of the same right or rights held by others in a free and democratic society. The responsibility of an employer to consider the occupational health & safety of its employees is one of the responsibilities which must be taken into account in these circumstances. It follows, then, that actions taken which are designed to protect employees if not from actual infection, but at least from serious illness, also need to be taken into account.

7. Against that set of considerations is the fundamental right not to be subjected to medical treatment without full, free and informed consent which has been impeded by these directions. They were made unlawfully or ineffectively. Non-compliance with those directions could have had life-changing consequences for an employee who declined to comply with the direction.

1. The balancing which needs to be undertaken with respect to those and the other matters referred to above is complicated by the fact that these directions were given in what was, by any measure, an emergency. It was further complicated by the fact that, at the time of giving the directions, the knowledge available about the virus, its variants, its virulence, and its transmissibility was limited and being added to on an almost daily basis.

2. Another feature which should be considered is what was not done in the directions. In this case it was not allowing an exception for conscientious objection - notwithstanding an advice (to the Commissioner from the Crown Solicitor) “that a “conscientious” belief will likely be sufficiently analogous to qualify as a ground of discrimination under the HRA”.

3. There is no formula which can be used to consider this balance. But, having taken into account the matters argued by the parties, I am not satisfied that the balance is in favour of the applicants and so I conclude that the limit imposed on s 17(c) has been demonstrably justified in the terms of s 13.

4. It also follows from that that the applicants have not established any ground under the JRA of unreasonableness.

What orders should be made?

1. I have not held that the QPS Directions and the QAS Direction were invalid, rather I have held that they were unlawful. As each direction has been revoked, the remedies available are confined.

2. An order setting aside or quashing the legal effects of the directions is not appropriate.

   As was said in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd:¹⁴³

“[28] The function of an order in the nature of certiorari is to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights.” (citation omitted)

1. In Wingfoot Australia Partners Pty Ltd v Kocak¹⁴⁴ the utility of an order in the nature of certiorari was considered:

   “[25] The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an “apparent legal effect”. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of

1. (2018) 264 CLR 1 at [28] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.

2. Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.

certiorari in those circumstances would be not simply inutile; it would be unavailable.” (citation omitted)

1. That is the position in which the applicants find themselves. As I have held in other proceedings¹⁴⁵ disciplinary action may still be taken by the Commissioner and Director-General. While it would be unusual for such action to be taken on the basis of an alleged breach of a direction found to have been made unlawfully, that remains a possibility and the appropriate way of proceeding is that taken by Dixon J in Certain Children v Minister for Families and Children (No. 2).¹⁴⁶ In that case his Honour was satisfied that breaches of the Charter equivalent of s 58 had been established, but not jurisdictional error. He made declarations that particular acts were unlawful and then made orders restraining the decision-makers from acting on them.

1. That course of conduct is supported by the principles considered in Project Blue Sky Inc v Australian Broadcasting Corporation:¹⁴⁷

   “[100] … Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision “may in particular cases be punishable”. That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.” (citation omitted, emphasis added)

2. In Roads and Maritime Services v Desane Properties Pty Ltd¹⁴⁸ a unanimous Court of Appeal (NSW) said that: “we do not accept that the High Court was intending to limit the occasions where an injunction may be granted to prevent conduct consequent upon a breach of an Act to occasions where the relevant breach constituted an offence”.

3. In each of the Johnston, Sutton and Witthahn groups of applicants there were employees who were required by the directions to be vaccinated. Those applicants declined to comply with the directions. They are entitled to an order protecting them from any liability which might have arisen under those directions.

4. Other issues arise with respect to particular employees who have been disadvantaged in some way. Agreements were reached with the Commissioner and the representatives of Dr Wakefield that the directions were, in effect, stayed with the result that no action would be taken with respect to them until judgement was given. The success of the various applicants and the decision I have reached with respect to the unlawfulness of the QPS Directions or the ineffectiveness of the QAS Direction

¹⁴⁵Johnston & Ors v Carroll (APM, Commissioner of the Queensland Police Service) & Anor; Ishiyama & Ors v Aitken & Ors; Hunt & Ors v Gerrard & Anor [2024] QSC 6.

1. (2017) 52 VR 441.

2. (1998) 194 CLR 355.

3. (2018) 98 NSWLR 820 at [289].

and the entitlement of the applicants not to be subjected to or concerned about proceedings related to alleged breaches of the directions can best be recognised by making the following orders.

1. I make the following orders:

   (a)In Matter 11254/21

   (i)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.

   (ii)The Commissioner of Police be, and is, restrained from:

   (A)taking any steps with respect to enforcement of the QPS Directions, and

   (B)taking any disciplinary proceedings against any of the applicants based upon the requirements of the QPS Directions.

   (b)In Matter 12168/21

   (i)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.

   (ii)The Commissioner of Police be, and is, restrained from:

   (A)taking any steps with respect to enforcement of the QPS Directions, and

   (B)taking any disciplinary proceedings against any of the applicants based upon the requirements of the QPS Directions.

   (c)In Matter 11258/21

   (i)The Court declares that Employee COVID-19 Vaccination Requirements Human Resources Policy is of no effect.

   (ii)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.

2. I will hear the parties on costs.