Dean-Braieoux v State of Queensland (Queensland Police Service) [2021] QIRC 209

Date: 11 June 2021
Court/Tribunal: Queensland Industrial Relations Commission
Judicial Officer/Tribunal Member: Merrell DP
Human Rights Act 2019 (Qld) Sections: ss 15, 25, 26, 29 and 37
Rights Considered: Recognition and equality before the law; privacy and reputation; protection of families and children; liberty and security of person; health services
Other Legislation: Acts Interpretation Act 1954 s 36 and sch 1; Industrial Relations Act 2016 ss 562B, 562C, 566; Migration Act 1958 s 189; Public Interest Disclosure Act 2010 s 13; Public Service Act 2008 ss 25, 46, 47, 53, 174, 175, 178, 179AA, 194.
Keywords: Discrimination

This case concerned an appeal to the Queensland Industrial Relations Commission against a decision made under section 175 of the Public Service Act 2008 (Qld) requiring the applicant to submit to a medical examination. The applicant argued pursuant to sections 37 (right to health services) and 26(2) (right to protection of families and children) that she should not have to risk travelling with her daughter from the United States of America during the COVID-19 pandemic to undertake the medical examination, which the Commission considered not to be a relevant consideration as the medical examination she was required to undertake was by video link. The applicant also submitted that, pursuant to sections 15 (recognition and equality before the law) and 25 (privacy and reputation), the respondent’s decision to issue an IME was an apparent ‘disguised attempt’ to access her medical records and harm her reputation. However, the Commission determined that, as the elements of section 174 of the Public Service Act 2008 (Qld) had been met, her privacy had not been unlawfully or arbitrarily interfered with and her reputation had not been unlawfully attacked.

This case concerned an appeal against a written decision under section 175 of the Public Service Act 2008 (Qld) which required the applicant to submit to a medical examination on the basis that she was absent from their duty and the chief executive reasonably suspected that her absence was caused by mental or physical illness or disability. The Commission’s decision was made on the papers as neither party had requested an oral hearing.

The applicant had submitted that the decision was unfair and unreasonable as the respondent’s suspicion was not reasonably held due to, inter alia, arguments based on human rights.

Pursuant to section 37 of the Human Rights Act 2019 (Qld), she argued that she had “a right of access to a health service that provides medical advice not to risk travel to prevent serious risks to the health, welfare and safety of her family:” at [43].

She additionally argued that, pursuant section 26 Human Rights Act 2019, 'the government' “should adopt special measures to protect children which means that the best interests of a child should be taken into account in all actions affecting the child and which will depend on the child's personal circumstances:” at [43].

She also submitted that, pursuant to sections 15 and 25 of the Human Rights Act 2019, the respondent's decision to issue an IME despite possessing knowledge of her location, international border shutdowns and the safety risks of international travel was so unreasonable that it appeared to be a ‘disguised attempt’ to access her medical records and harm her reputation: at [44].

The Commission determined that the applicant’s reference to sections 26 and 39 of the Human Rights Act 2019 (Qld) were not relevant considerations as the medical examination she was required to undertake was by video link, and thus did not require her or her daughter to leave the United States of America even if there was a risk doing so due to the COVID-19 pandemic: at [71].

The Commission also determined that sections 15 and 25 of the Human Rights Act 2019 (Qld) had not been breached because, as the elements of section 174 of the Public Service Act 2008 (Qld) had been met, her privacy had not been unlawfully or arbitrarily interfered with and her reputation had not been unlawfully attacked: at [79].

The Commission concluded that the decision was fair and reasonable: at [11], [84].

Visit the judgment: Dean-Braieoux v State of Queensland (Queensland Police Service) [2021] QIRC 209