By Sonya Parsons, Partner and Millie Volck, Lawyer

Case: 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

Jurisdiction: Supreme Court of Queensland

Coram: Martin SJA

Date of Judgment: 27 February 2024

A copy of the case can be found here.

In late 2021 and early 2022, directions were issued by the Queensland Commissioner of Police, Katarina Carroll (Commissioner) and Dr John Wakefield, the then Director-General of Queensland Health (Director-General), mandating COVID-19 vaccinations and booster doses for police officers and ambulance service officers, respectively. These employees were liable to disciplinary sanctions up to and including termination of employment if the directions were not complied with.

In response to the directions, a group of police officers initiated Supreme Court proceedings against the Commissioner.  Similarly, a group of ambulance officers commenced proceedings against the then Director-General. The applicants sought declarations that the directions were unlawful.

In the decision, Justice Martin declared:

• the vaccine mandates for police officers were unlawful; and
• the Director-General did not have the power to make the vaccine mandates for ambulance service workers on contractual grounds.

Decision relating to police officers

Section 58 of the Human Rights Act 2019 (QLD) (the Act) makes it unlawful for a public entity – including the Commissioner – to make a decision that is not compatible with human rights or to make a decision that fails to give proper consideration to a human right relevant to the decision.

All public entities in Queensland must therefore consider, for every act, policy or decision that it makes, the potential effect on the relevant human rights.

Section 17 of the Act provides for a person’s right not to be subjected to non-consensual medical treatment. This was one of nine human rights the applicants claimed were limited by the vaccine mandate.

While the Commissioner was provided with Human Rights Compatibility Assessments which considered the impact of the vaccine mandates and whether the limits imposed on the human rights were reasonable and justified, the Court found that she failed to properly consider them before making each of the vaccine mandates.

Whilst his Honour found the vaccine mandate was justified in the circumstances of the COVID-19 pandemic, being an emergency, the failure ‘to give proper consideration to a human right relevant to the decision’ made the vaccine mandate unlawful. The Court found:

‘the fundamental right not to be subjected to medical treatment without full, free and informed consent … has been impeded by these directions’.

Decision relating to ambulance service workers

By comparison, the Director-General submitted that he was able to make the direction because he had the power under an implied term of the employment agreements for ambulance service employees. The Director-General failed to identify the implied term and it was determined the vaccine mandate for ambulance service workers had no force.

The Court declared both the Commissioner and Director-General be restrained from taking any action with respect to the enforcement of the directions or taking disciplinary action based on the same.

COVID-19 vaccine challenges in other jurisdictions

Prior legal challenges to Australian state and territory vaccine mandates have largely been unsuccessful, particularly in the discrimination and industrial relations contexts.

In Western Australia, legal action regarding a similar mandate was dismissed. In the matter of Falconer v Chief Health Officer [No 3] [2022] WASC 270, a police officer took legal action over the mandate, which had required all police officers to be vaccinated, and banned unvaccinated officers from attending police premises. Mr Falconer claimed the directions were disproportionate and irrational, arguing some duties could be performed at home, without needing to attend a police facility. Justice Allanson dismissed the case, finding the actions of the Police Commissioner and Chief Health Officer were justified in the extraordinary circumstances of the pandemic.

Similarly in New South Wales, in the decision of Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, Beech-Jones J found a requirement for workers not to travel outside of particular areas of Sydney if they had not been vaccinated did not authorise vaccination without a person’s consent and was not unlawful. One of the main grounds of challenge concerned the effect of the health orders on rights and freedoms, especially in respect of the bodily integrity of persons choosing not to be vaccinated. However, his Honour found that the health orders did not interfere with such freedoms. Instead, the health orders curtailed the freedom of movement including their movement to and from work, which his Honour found was the very type of restrictions that the Public Health Act 2010 (NSW) authorised.

In Harding v Sutton [2021] VSC 741, a case in Victoria seeking judicial review of directions for mandatory vaccinations was rejected as it sought injunctive relief suspending the directions.  The Court found that the balance of convenience did not support the injunction as the highly transmissible nature of COVID-19 posed an incalculable risk of hardship to third parties.

Key takeaways:

• It is often said that human rights legislation is ‘toothless’: that is, just a statement of hopeful principles without the ability to be enforced or to create change.  This judgment confirms that the Human Rights Acts can, in certain contexts, create binding and stringent obligations which, if not complied with, will render administrative decisions unlawful.
• Now that the immediate danger of COVID-19 has passed, courts are looking afresh at human rights obligations in respect of vaccine mandates. As Victoria, the Australian Capital Territory and Queensland have human rights Acts, similar challenges may be successful in those jurisdictions (in contrast to challenges during the pandemic).
• Where human rights Acts mandate certain considerations, administrators must give detailed thought to the potential effects of the action on human rights. It is not simply a ‘tick box’ exercise.  The identification of the relevant human rights, and the effects of a decision on those rights, is a process that must be approached in a common sense and practical manner. Proper consideration will involve understanding 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 that is made.