Johnston & Ors v Commissioner of Police & Anor; Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health & Ors [2021] QSC 275

Date: 26 October 2021
Tribunal: Supreme Court of Queensland
Tribunal Member: Dalton J
Human Rights Act 2019 (Qld) Sections: ss 15(1), 17(c), 20, 21, 48, 50, 51, 58
Rights Considered: Right to recognition and equality before the law; Right to protection from cruel, inhuamn or degrading treatment; Right to freedom of thought, conscience, religion and belief; Right to freedom of expression.
Other Legislation: Civil Proceedings Act 2011 (Qld) s 10; Crime and Corruption Act 2001 (Qld) s 219E; Hospital and Health Boards Act 2011 (Qld) s 75; Industrial Relations Act 2016 (Qld) ss 9, 448, 449, 450, sch 1; Judicial Review Act 1991 (Qld) ss 7, 10, 12, 13, 18, 19, 20, 21, 22, 41, 43, 44, 47, sch 1, sch 2; Police Service Administration Act 1990 (Qld) s 9.1A.
Keywords: Public Law Considerations: COVID-19 Directions

Seven police officers sought review of the decision by the Commissioner to issue a Direction requiring all police officers and some frontline staff members to receive two COVID-19 vaccinations by certain dates and to provide evidence of having done so. Contemporaneously, twelve ambulance officers and one nurse brought an application on the same terms against the Chief Executive of Hospital and Health Services and Commissioner of Queensland Ambulance Services. Solicitors and counsel for the applicants in both applications were the same and the matters were heard together.

This case concerned seven police officers, twelve ambulance officers and one nurse. They sought to challenge Health Directives mandating they receive COVID-19 vaccines. Preliminary issues before the court were threefold. First, there was a question as to whether the court itself had jurisdiction to hear the application, having regard to the provisions of the Industrial Relations Act 2016 (Qld). Secondly, even if the court did have jurisdiction, should they hear it having regard to ss 12 and 13 of the Judicial Review Act 1991 (Qld) (‘JRA’) and the fact there are similar proceedings in the Queensland Industrial Relations Commission. Third, there was a question of whether the applicants were “persons aggrieved” within the meaning of s 7 of the JRA.

The court did not feel it could properly exercise jurisdiction in this case as it did not have enough evidence about the applicants’ cases. For this reason, it deferred the consideration of whether to exercise jurisdiction under ss 12 and 13 of the JRA until hearing the applications fully.

The Attorney-General intervened pursuant to s 50 of the Human Rights Act 2019 (Qld): at [54]. The Human Rights Commission intervened pursuant to s 51 of the Human Rights Act 2019 (Qld): at [54]. Their application alleged that the Directions breached: s 15(1), that every person has the right to recognition as a person before the law; s 17(c), that a person must not be subjected to medical or scientific experimentation or treatment without the person’s full, free and informed consent; s 20, freedom of thought, conscience, religion and belief; and s 21, freedom of expression: at [55].

The court succinctly summarised the interveners' submissions. Firstly, whether the matters subject to these proceedings are heard in the Court or in the Industrial Relations Commission, ss 48 and 58 remain agitated: at [56]. Secondly, even if the Court does not have jurisdiction under Part 3 of the Judicial Review Act 1991 (Qld), it would have jurisdiction to consider the ss 48 and 58 matters in dealing with the Part 5 Judicial Review Act 1991 (Qld) matters: at [56].

The court decided to hear the parties as to directions necessary to progress the remaining parts of the application to a final hearing: at [58].

Visit the judgment: Johnston & Ors v Commissioner of Police & Anor; Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health & Ors [2021] QSC 275