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)

The applicants asserted that directions which had been issued by their employers (the Queensland Police Commissioner and the Director-General of Queensland Health respectively) that they undergo mandatory vaccination against Covid-19 were unlawful. Justice Martin found in their favour, holding that the directions which had been given failed to give proper consideration to human rights in contravention of s 58(1)(b) Human Rights Act 2019. The Court ordered that in both cases the respondents be restrained from taking any steps with respect to enforcement of the directions or from implementing any disciplinary proceedings against the applicants resulting from the terms of the directions. The judgment highlights the paramount importance of public entities having consistent and proper regard to human rights considerations in advance of decision-making.

Martin SJA

27 February 2024

In both matters, the contentious directions had been revoked, however the position remained that the applicants could be subject to disciplinary proceedings in the event they were not granted relief. They sought to have the decisions to give directions requiring vaccination set aside, [5] arguing that they were invalid pursuant to:

(a)section 30 Judicial Review Act 1991; or

(b)sections 43 and 47 Judicial Review Act 1991; or

(c)section 10 Civil Proceedings Act 2011; or

(d)the court’s inherent jurisdiction. [15], [19].

As to the police service applicants, the directions were issued under ss 4.8 and 4.9 Police Service Administration Act 1990. As to the ambulance service applicants, there was a dispute about whether they had been given under s 13 Ambulance Service Act 1991 or at common law (or both).

Did the Queensland Police Commissioner have the power to make the QPS directions?

The police service applicants contended that the directions which were made were not authorised by the Police Service Administration Act 1990 [149] and, specifically, that the commissioner’s power to issue directions pursuant to s 4.9 was confined by reference to the “functions of service” defined by s 2.3. [155]. Section 2.3 comprises a range of matters typically undertaken by police officers such as preservation of peace and good order, community protection, prevention of crime and so on. The applicants submitted that since vaccine mandates sat entirely outside the remit of those functions of service, [156] the directions were inconsistent with the Act.

His Honour rejected the argument that s 4.9 was intended to be read subject to s 2.3. In his view, that argument was misconceived and incorrectly interpreted the meaning of the term “functioning of the police service”. He clarified:

“Those words are part of the broader description of the task imposed on the Commissioner by s 4.8(1). The Commissioner is given the responsibility “for the efficient and proper administration, management and functioning of the police service in accordance with law”. The word “functioning” is not used to reflect the tasks set out in s 2.3. It is used as a present participle and means little more than “working” in the sense that a functioning clock is a clock that works. The word “functioning” has the same meaning when used in s 4.9(1)”. [157], [158].

Nonetheless despite the fact that the power afforded to the commissioner was broad, it was not unlimited. Rather, the exercise of that power was subject to, among other things, whether it needed to be considered in accordance with the provisions of the Human Rights Act 2019. [165].

His Honour clarified that the question of the validity of the directions was to be assessed by reference to the relevant circumstances prevailing at the time the power was exercised, rather than later. [175], [20]. The same approach applies to whether an action is justified under s 13 Human Rights Act 2019, [22] and whether a person has committed an unlawful act or made an unlawful decision under s 58 Human Rights Act 2019. [23].

Did s 4.9 Police Service Administration Act 1990 permit the making of directions limiting fundamental freedoms?

The applicants contended that s 4.9 does not confer a power to make a direction that limits either fundamental common law rights, or the human rights protected by the Human Rights Act 2019. [188]. They implored the court to adopt a “constructional choice of s 4.9 that is compatible with human rights”. [192].

His Honour held that not only is s 4.9 unambiguous, but it does not contain anything which is inconsistent with the Human Rights Act 2019. He clarified that the true enquiry was not the source of the power but rather the way in which it was exercised: “it is whether a decision made pursuant to that provision is one which complies with the requirements of the HRA. That, in turn, requires consideration of whether the Directions comply with s 58 of the HRA”. [198].

In his view, s 48 Human Rights Act 2019 cannot be readily applied to limit provisions which afford an open-ended discretion of a general nature (as in s 4.9). In his view that approach would not accord with the language of s 4.9 (and would possibly result in the court partaking in a remedial approach to interpretation). [199].

Having regard to the above, it was plainly the case that the power conferred by s 4.9 extended to limit fundamental freedoms.

Were the directions issued by the Queensland Police Commissioner unlawful and/or invalid?

The evidence revealed that the decision-making processes undertaken by the Police Commissioner in relation to making the directions were imperfect. For example, his Honour deemed her evidence regarding whether she gave “proper consideration to a relevant human right in making [the] decision” to issue the key direction was “vague and inconclusive”. [134]. It followed that he was unable to be satisfied to the requisite standard that she had properly complied with the procedural requirements in s 58(1)(b) Human Rights Act 2019. [135]–[138]. As a result, the directions were unlawful. [139].

What was the source of the power for the making of the QAS directions?

The ambulance service applicants and the Director-General of Queensland Health differed as to the source of the chief executive’s power to give the impugned direction. The applicants claimed that since it was unclear what source of statutory power enabled the respondent to impose the employment declarations upon them, the court should accordingly conclude that they were beyond power and invalid. The Director-General’s position was that the direction was a decision to exercise a power under a contract and thus not a decision under an enactment (see Griffith University v Tang (2005) 221 CLR 99), nor an exercise of public power. Therefore it was neither amenable to judicial review, nor subject to s 58 Human Rights Act 2019. [200].

In response to the Director-General’s contentions, the applicants cited the fact that his direction was accompanied by a “shopping list of statutes” as lending support to their position that it had not been made pursuant to an implied contractual term at all but instead, evidently, on the basis of “some statutory power”. [210].

As the trial progressed the parties’ positions appeared to reach agreement on one thing – “the QAS direction was not made pursuant to any statutory power”. [230] His Honour resolved the matter this way:

“Where the parties both seek the same result, namely that there was no legislative basis for the QAS Direction – either because it was made pursuant to an implied term or it was beyond any statutory power – it is not for the court to search for some saving statute”. [231].

As to whether the Director-General had the capacity to give the directions under the implied term of the contracts of employment, [213], his Honour noted that employees are only required to obey lawful commands given by an employer which come within the scope of the contract of service and are deemed reasonable: see R v Darling Island Stevedoring & Lighterage Co Ltd; ex parte Sullivan (1938) 60 CLR 601.

In his Honour’s view, an assessment of the relevant evidence from executive staff in the department [216]–[218] did not directly assist in his determination of the question of “reasonableness” [219]. The Director-General had omitted to provide proper evidence about those matters and as a result he had failed to demonstrate that the directions were authorised. [224]–[225]. The applicants were entitled to injunctive relief restraining the respondent from seeking to take any action upon any alleged contravention of the Direction. [225].

Did the directions limit any of the rights identified in the Human Rights Act 2019?

In the course of his reasons, his Honour comprehensively considered the content of various human rights and whether they were invoked or limited by the issuance of the directions. [266]–[379].

Disposition

Relief was granted to the police applicants in terms of declarations that the directions were unlawful and injunctions restraining the Commissioner of Police 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.

Relief was granted to the ambulance service applicants in terms of a declaration that the direction made was of no effect and an injunction restraining the Director-General of Queensland Health 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. [469].

A Jarro