Johnston v Commissioner of Police [2024] QSC 2
- Court / Tribunal
Supreme Court
- Date of decision
7 February 2024
- Type of proceeding
Judicial review
- Human Rights Act sections
15 (equality and non-discrimination), 16 (right to life), 17(c) (freedom from medical treatment without consent), 20 (thought, conscience, religion and belief), 23 (taking part in public life), 25 (privacy and reputation), 29 (liberty and security), 48 (interpretation), 58 (conduct of public entities)
Summary
Members of the Queensland Police Service challenged two directions made by the Police Commissioner that required police officers and staff members to receive doses and boosters of the COVID-19 vaccine by particular dates.
A similar challenge brought by Queensland Ambulance Service staff regarding a direction mandating vaccination made by the Director-General of Queensland Health was heard at the same time.
The court considered the rights to equality (s 15), life (s 16), freedom of thought, conscience, religion and belief (s 20), take part in public life (s 23), privacy (s 25), liberty and security (s 29) had not been limited by the directions in the ways argued by the applicants.
The court accepted that the applicants’ rights to not be subjected to medical treatment without the person’s full, free and informed consent (s 17(c)) had been limited by the directions. While consent is often accompanied by some form of pressure, the Court held that ‘where a person’s livelihood can be put at serious risk if consent is not given’ then that is sufficient to render consent not ‘full, free and informed’.
However, the limitation was demonstrably justified taking into account:
- the purpose of minimising the risks of transmission and employer responsibility for workplace health and safety and;
- the expert evidence that vaccinations had an effect in protecting against serious infection
- that alternatives to mandatory vaccination would not achieve the same purpose, and
- the knowledge about the virus, variants, virulence and transmissibility was limited and being added to on an almost daily basis.
The QPS directions were nevertheless declared unlawful because the Police Commissioner did not give proper consideration to human rights before issuing the direction. The Court was not satisfied the Police Commissioner had considered the human rights compatibility assessments prepared by staff prior to making the directions, and her oral evidence about her consideration of human rights at the time of making the directions was, at best, inconclusive.
The QAS direction was declared to have no effect because, on the evidence presented to the Court, the decision-maker had no power to issue the direction.
The court ordered that the Police Commissioner and the Director General of Queensland Health
- cannot take any steps to enforce the directions;
- cannot take disciplinary proceedings against the applicants based on the requirements of the directions.