Although, for many, the Covid pandemic may seem like a distant fever dream – its many consequences are still being felt by Australian workers. In Queensland, employees of Education Queensland, private teaching institutions and other workers (including hospitality and healthcare) are still facing ongoing court battles against the Queensland government over mandatory vaccination directives. There are two main reasons for the proceedings – with most of the plaintiff’s refused vaccination, whilst others had to refuse customers, and subsequently business, over their lack of proof of Covid-19 vaccination. After initial dismissal due to ‘legal standing’, the applicants have recently won an appeal in the Supreme Court of Queensland this week. In the appeal ruling, Justice John Bond commented on the standing of the case and noted that there was “no other good reason to deny the applicants their day in court“. In addition, Justice Bond discussed on the high public interest of the case and stated that “there is a strong public interest in determining whether or not there is any merit in their claims”.
There is no method of predicting how this decision will play out in its forth coming hearing. However, we have seen a similar case that was decided in the Supreme Court of Queensland in February 2024 – namely the 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 (the Johnston cases). In this case, the plaintiffs challenged the Commissioner of Queensland Police Service (QPS) and the Chief Executive of Hospital and Health Services and Director General of Queensland Health Queensland Health (QH) with regard to the validity of the mandatory Covid-19 vaccination directives that were given to their employees. Like the current issues being debated in this case, the Johnston cases involved similar facts and deliberation regarding the Queensland Human Rights Act 2019 (QHRA) and its impact on human rights during the pandemic.
The key issue here surrounded the interpretation of Section 58 of the QHRA, which relates to conduct made by public entities in relation to constraining human rights. The Supreme Court contemplated the impact of mandatory Covid-19 vaccination directives on human rights and provided some key insights into the contemporary understanding of the human rights to ‘full, free and informed consent’ within the context of the pandemic. In the Johnston cases, the plaintiffs argued that the mandatory vaccination directives restricted various human rights under the QHRA, which included informed and medical consent, discrimination, privacy, and liberty. In submissions to the court, it was argued that the mandatory vaccination directives were not reasonable or justified and disproportionately impacted their human rights. In analysing this, Section 13 of the QHRA was discussed, which looks at the nature of the human right being limited, the purpose of the limitation, the relationship between the limitation and its purpose, whether there are any less restrictive measures that should be implemented instead, the importance of the restriction of rights, and finally the importance of preserving the human right in question.
In my opinion, it will be Section 58 of the QHRA that will be relied upon again to convince the Supreme Court that the directions given by the Queensland government were unlawful due to their inconsistency with the QHRA. Generally, Section 58 relates to conduct made by public entities in relation to constraining human rights and has two obligations that it imposed on the public entity In the Johnston cases, the unlawfulness and invalidity of the directions given to employees is contained under Section 58(1), which states that decision-makers are required to make decisions in compatibility with human rights and incorporate the considerations into the decision-making process.
What was unique in the Johnston cases was the cross-examination of the Queensland Police Commissioner, who openly admitted that she was unfamiliar with documentation that was core to the decision-making process and was also unable to recall key parts of the decision-making process that was relied upon to implement the mandatory vaccination directives. By the time of the orders, in mid-2021, the pandemic had been in effect for over eighteen months and yet the Commissioner did not have any information about whether any police officer who had contracted Covid-19 had transmitted the virus to another police officer, how many police officers had contracted Covid-19 and transmitted it to members of the community, and how many police officers contracted Covid-19 from members of the community in the course of their duties. Ultimately, the Supreme Court of Queensland found that the Police Commissioner failed to give proper consideration to the human rights impacted by the directives. For the recent appeal and its case, we may see a similar outcome and interpretation regarding the application of the QHRA. With regard to the QHRA, Supreme Court in the Johnston cases concluded that if an Act is designed to protect human rights, it must be interpreted in a way that is as protective of human rights as possible.
Another key element that would likely be discussed in the forthcoming appeal is Section 17 of the QHRA, which states that a person must not be subjected to torture, treated or punished in a cruel or inhumane way or subjected to medical, scientific experimentation or treatment without the person’s full, free and informed consent. This section mimics Article 7 of the International Covenant on Civil and Political Rights, which states that:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
In the Johnston cases, the court concluded its commentary on Section 17(c) of the QHRA by stating that consent to medical procedures are often accompanied by pressure and, in the context of ‘no jab, no job’ mandates during the pandemic, held the following: “where a person’s livelihood can be put at serious risk if consent is not given then that is sufficient to peel ‘free’ away from ‘full, free and informed'”. Ultimately, the Supreme Court of Queensland concluded that there was a genuine pressure imposed by QPS and QH for employees to receive their vaccinations and this ultimately constituted a breach of Section 17(c) of the HRA.
Based the Johnston cases, and its precedent, it is not unreasonable that we could see a similar verdict surrounding the right to full, free and informed consent and the interpretation of Section 58 given to the Queensland government. In addition, the retrospective data available for vaccine efficacy and the poorly managed pandemic response could contribute to a successful outcome for the applicants within this matter. Only time will tell.
