ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND
CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION
APPLIES –
GENERALLY – where the applicant applies under section 20 of the
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS ANDCONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATIONAPPLIES –GENERALLY – where the applicant applies under section 20 of theJudicial Review Act 1991 (Qld) for a review of a decision of therespondent – where the respondent issued a health service directive undersection 47of the Hospitals and Health Boards Act 2011 (Qld) on 28January 2025 to all hospitals and health services in Queensland to restrict theprovision of “stage I” (pubertyblocking hormone) treatment and“stage II” (gender affirming hormone) treatment to children andadolescents under 18years of age with gender dysphoria – whether thedecision was an improper exercise of power – whether the respondentexercised a personal discretionary power at the direction or behest of anotherperson, namely, the Minister for Health and AmbulanceServices – whetherthe respondent took into account an irrelevant consideration, namely, the advice
or opinion of the Minister
and/or Cabinet – whether the respondent
consulted with the Hospital and Health Service as required by the Hospitals
and Health Boards Act 2011 (Qld)
Hospital and Health Boards Act
2011 (Qld), s 8, 15, 24, 44F, 47, 48
Judicial Review Act 1991 (Qld), s 20(2)(e), 23(e)
Ansett
Transport Industries (Operations) Pty Ltd v Commonwealth of Australia [1977] HCA 71
Plumbing and Allied Services Union of Australia and Others v
QR LTD and
Others [2010] FCA 591, considered
CPCF v Minister for
Immigration and Border Protection (2015) 255 CLR 514, considered
Judgment (74 paragraphs)
[1]
M Alexander of LGBTI Legal Service for the applicant
[2]
[1] Orders have already been made prohibiting publication of anything that might lead to the identification of the applicant. Given the way in which the case was heard, compliance should not be difficult.
[3]
[2] On 28 January 2025 the respondent issued a directive that prevented[1] State health services from administering hormone treatment for gender dysphoria to any child or adolescent who had not already commenced such treatment ('the directive').
[3] There is a question as to whether the respondent complied with a requirement for consultation before the decision to issue the directive was made. [2]
[4] There is also an issue as to whether he did so "at the direction or behest"[3] of the Minister for Health and Ambulance Services[4] ('the Minister').
[5] Further, and even if the directive was not issued at the actual direction of the Minister, there is a question as to whether it was proper for the respondent to take the Minister's view into consideration[5] when issuing the directive.
[6] By their intrinsic character, these proceedings do not involve any review of the directive's merits. They are concerned solely with the legal requirements that attend any decision of this nature, irrespective of the subject matter.
[4]
[7] The scene is set by provisions of the Hospital and Health Boards Act 2011 (Qld) ('HHB Act'). It creates a public health system which is comprised of the Health Department and of Hospital and Health Services ('the Services'). The Services are the independent statutory bodies which actually provide the means by which the health and well-being of the community are maintained.[6]
[8] The overall management of the public health system is the responsibility of the Department through the "chief executive", who is the respondent.[7] One way in which he manages the Services is to issue them, pursuant to s 47, with binding directives.[8] The decision under review was, by the respondent's own reckoning, made pursuant to s 47.[9]
[9] The power to issue a direction to the Services is not exclusive to the chief executive. The Minister may give a Service a direction if he is satisfied it is necessary to do so in the public interest. However, if the Minister gives a direction it must be in writing and published in a way that allows it to be accessed by members of the public.[10]
[10] The Minister is also empowered to give directions to the chief executive about the managing of the Department, but the HHB Act gives him no power to direct the chief executive about anything to do with the Services.[11]
[11] There is a prerequisite to the issue of directions by the chief executive.[12] That is, in the development of a directive to Services he must consult with any Service to which the directive will apply.[13]
[5]
[12] The applicant is now 14 years old and was diagnosed with gender dysphoria in 2020. She is a patient of the Children's Health Queensland Hospital and Health Service. It has been recommended that she commence "stage I" hormone treatment for gender dysphoria. As at January of this year the applicant had, for some time, been on a waiting list to receive this treatment.
[13] The respondent's directive will preclude her from receiving this treatment from that Service. On that basis it is allowed, by the respondent, that the applicant has standing to bring this application.
[6]
[14] At the outset, it must be noted that neither the respondent nor the Minister gave any evidence in these proceedings.[14] The following sequence of events is gleaned from the accounts of others who worked for the respondent, and secondary sources such as emails and file notes.
[15] In December 2024, the respondent became aware that a health Service (not being the service at which the applicant was receiving treatment) had administered hormone therapy for gender dysphoria other than in accordance with endorsed guidelines. He formed an intention to brief the Minister in relation to:
[7]
(a) the types of gender-affirming care that children experiencing gender dysphoria can access (such as medical, legal and social affirmation);
(b) Queensland Health's response to the identification of an unauthorised gender clinic;
(c) how Queensland's clinical governance for hormone therapy aligns with other jurisdictions; and
(d) the options for reviewing the evidence base for medical treatment of children experiencing gender dysphoria.[15]
[8]
[16] As a result, the respondent was instructed to start preparing Cabinet submissions.[16]
[17] The respondent "was involved in developing the submission in an iterative way".[17] That is, in the course of developing the submission, he "provided edits ... [p]osed questions and made comments for further consideration once the substance of the submission had been prepared in draft".[18]
[18] Privilege has been claimed over the submission,[19] so its contents are unknown. However, it can be inferred that the respondent must have known all about them. He discussed the submission with his deputy Director-General on 14, 16 and 17 January 2025. It can also be inferred that one option posed, within the submission, was for a pause of hormone therapy, and that this option went to Cabinet with the respondent's "imprimatur".[20]
[19] The Minister took the submission to cabinet and on 20 January 2025 the respondent received an email which confirmed the outcome of Cabinet's deliberations on each recommendation in the submission.
[20] On 21 January 2025, the respondent instructed his staff to prepare the directive. The only available inference is that the directive was prepared in accordance with the wishes of Cabinet as conveyed by the Minister.[21]
[21] There is, in evidence, a draft of the directive as it existed on 24 January 2025. At that time the directive maintained that the foreshadowed "pause" would not have applied to a "current patient" of a service, and a "current patient" was any person who had commenced receiving care, "including assessment".[22] At some point between then and 1.42 pm on 26 January 2025, the Minister spoke to the respondent. As a direct result of that, the draft was amended on the instruction from the respondent, who emailed Queensland Health staff and stated:[23]
[9]
"Following a discussion with the Minister the HSD required further clarification. The pause on prescribing will apply to all patients who have NOT YET commenced on hormonal therapy - even if already in the assessment pathway."
[10]
[22] Some other communications shed light on the interactions between the respondent and the Minister. For example, at 3:01 pm the respondent sent an email that referred to the Minister making an announcement about the health service directive:[24]
[11]
"I'm just waiting to discuss with Minister around the timing of 'immediacy' of HSD ... I will send you all the financial documents as soon as this is verified";
[12]
[23] Then at 3:30 pm he emailed Queensland Health staff and stated:
[13]
"We will need to be prepared for media questions and responses regarding the Ministers announcement - I am hoping to get that provided by them";[25] and
[14]
[24] On 28 January 2025 and before 9:52 am,[26] the respondent signed a 'Briefing Note' which approved the directive. He indicated that it could be "uploaded to the website at 10:30 am".
[25] As scheduled, the respondent met with the Services via Microsoft Teams to consult on the health service directive on 28 January 2025 at 10:00 am ('the Teams meeting').[27] The Teams meeting concluded at some point after 10:14 am, but before 10:28 am.[28] At 11:07 am, the directive was issued.[29]
[26] The respondent provided his "Statement of Reasons" for the direction on 8 April 2025.[30]
[15]
[27] The Minister scheduled a press conference for 10:00 am on 28 January - at the same time the respondent was to meet with the Services. In speaking notes prepared for that press conference he identified the directive as a decision that he had made.
[28] In the press conference itself, which commenced at 10:00 am on 28 January 2025, he is recorded as saying:
[16]
"I have also directed the Director General to commission an independently led broad review of the evidence for Stage 1 and Stage 2 hormone therapies for children in Queensland";[31]
[17]
"The Director-General will also issue a Health Service Directive to pause the intake of new patients under the age of 18 years for Stage 1 and Stage 2 hormone therapy in Queensland Health facilities";[32]
[18]
"The immediate pause will come into effect following today's announcement and will remain until the Government considers and acts on the outcomes of the Review";[33]
[19]
"Today I'm here to make a number of announcements on behalf of the Government relating to hormone relating to hormone therapies for children and adolescents with gender dysphoria in public facilities";[34]
[20]
"Now I was first briefed about this at the end of the first week of December by the Director-General and I took immediate action and the Government's primary concern has been the safety and wellbeing of the children who have been through the Cairns Sexual Health Service";[35]
[21]
"While this review is taking place there's a need to maintain confidence in the public health services particularly those delivered by Queensland Health to children, so today I am also announcing an immediate pause on new public patients receiving hormone therapy for those who are under the age of 18. A binding health service directive will immediately pause the prescription of stage 1 and stage 2 hormone therapies to new patients in Queensland Health facilities. Patients who are already on a treatment plan with the Queensland Children's Gender Service will be exempt. I am advised that medically that is the appropriate procedure to follow. The pause will remain in effect until such time as the Government considers and acts on the outcomes of the broader review";[36]
[22]
"It is with these principles at the forefront of our mind that the Government has made these four decisions that I am announcing today."[37]
[23]
[29] On any reading of the press conference as a whole, when the Minister used the word "Government" he can be taken to be referring to himself, as the representative of cabinet.
[24]
"The procedures required by law to be observed in relation to the making of the Decision were not observed (JRA s 20(2)(b)) in that s 48 of the [HHB Act] required that "[i]n developing a health service direction that applies to a Service, the chief executive must consult with the Service" and the Respondent did not consult with the Services as required."
[25]
[31] The only way in which it is argued that the respondent complied with this mandatory requirement is by reason of the Teams meeting which lasted for about 22 minutes.[38]
[32] The background to this meeting gives a clue as to the role that consultation with the Services was going to have in the development of the directive. On 25 January 2025 (the Saturday of a long weekend), the respondent sent an email which included:
[26]
"[w]e will need organise for the official process to come through me to endorse on Tuesday morning and then go up on the website ... I will call a meeting for all (Services) after the announcement to discuss".[39]
[27]
[33] However, in the 3:30 pm email of 27 January 2025 the respondent wrote:
[28]
"I have scheduled a Teams meeting with HSCEs at 10am tomorrow where I will brief them on the HSD and provide an opportunity for feedback / discussion prior to sending out the memo for effect from 10.30am Tuesday January 28, 2025".[40]
[29]
[34] Only one participant in the meeting in the 10:00 am meeting has given evidence - Adjunct Professor Francis Tracey.
[35] Although he had been aware that a directive was coming, neither he (nor, it can be inferred, anyone else at the meeting) had seen a draft before one appeared on the screen. His evidence, spare as it was, indicated:[41]
(c) the respondent asked for feedback a number of times;
(d) The representative of one Service gave feedback on where the directive would 'draw the line' as to who was an adult;
(e) on this point the respondent said that "feedback would be considered, taken on board and the position likely clarified in the document itself"; [43] and
(f) no substantive concerns were raised regarding the substance of the draft.[44]
[31]
[36] The question is whether this "opportunity for feedback / discussion" (by which time the essential terms of the directive as it did issue had, functionally, been settled) properly could be described as "consultation". The respondent accepts that it was "abbreviated", but maintains it was sufficient.
[37] "Consultation" is a protean concept. There is no one definition that will apply in every case. When a requirement for "consultation" is imposed by statute, the nature of the requisite consultation will be informed by the terms of that statute.
[38] The HHB Act does not set a timeframe for, nor is anything specified about the nature or content of "consultation". There is, however, one indispensable requirement imposed by s 48. It insists that 'consultation' will form part of the process of "developing" a directive, rather than be something which occurred after the terms of the directive were already "developed".
[39] The distinction between those situations was captured by Logan J when he wrote:
[32]
"Everything that [the word "consult"] carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, "this is what is going to be done" and saying to that person "I'm thinking of doing this; what have you got to say about that?". Only in the latter case is there "consultation".[45]
[33]
[40] Within its own (different) context, the respondent's evidence about the way in which the Cabinet submission was formulated illustrated the sort of things that might be done in the "iterative" development of a position on the issues raised. There are no doubt many ways in which "consultation" might fit into such a process, but whatever they were, they had to involve a meaningful opportunity for the Services to contribute to the process by which the working parts of the directive came into existence.
[41] The 10:00 am meeting, however, had every hallmark of an occasion convened for the respondent to announce that the directive was "what is going to be done".
[42] That is the only way to characterise a situation in which:
[34]
(a) the terms of the directive had been settled and did not subsequently vary in any substantial way;
(b) the 27 January 2025 email contemplated publication at 10.30 am and did not seem to contemplate the possibility of any further meaningful "development";
(c) none of the participants in the meeting knew about the contents of the directive until they saw it, fully formed, on the screen, at the meeting; and
(d) the Minister was, contemporaneously with the meeting, announcing the decisions contained in the directive.
[35]
[43] It is true that after the meeting, and as reflected in these tracked changes, the syntax of the draft was amended to "reflect the feedback and reduce ambiguity":[46]
[36]
" Any Current Patient or New Patient may receive Puberty Blockers or Sex Hormones will continue to behere prescribed forfor a a medical condition other than Gender Dysphoria.
[37]
Continue to permit the prescription and delivery of Puberty Blockers or Sex Hormones to Current Patients and New Patients for medical conditions other than Gender Dysphoria."[47]
[38]
[44] Further, after making these amendments to the health service directive, the respondent amended a memorandum to the Chief Executives of the services by making the following additions:
[39]
"Following our discussion at 10.00am this morning, and subsequent refinement, have today issued a new Health Service Directive - Treatment of gender dysphoria in children and adolescents under 18 years of age with puberty blockers and gender affirming hormone treatment (HSD), effective from 10.30am on 28 January 2025.
[40]
Noting those investigations, and acknowledging the HSD consultation framework, the HSD will be subject to consultation and a review within 12 months to consider its ongoing appropriateness."[48]
[41]
[45] Those changes may well have achieved the objective of "reducing ambiguity", but adjustments of this nature could not be thought to bear at all on the actual decision - already made - to suspend hormone treatment. That which occurred was more than "abbreviated", and went beyond procedural minimalism. The concept of purposeful "consultation" was marginalised in a way that made it functionally irrelevant. The 10:00 am meeting may have contributed to the form of the directive, but its substance was predetermined.
[46] It can be accepted that the Teams meeting did at least afford an opportunity to express a view that the directive should not be issued. This does not, however, amount to consultation in the "development" of an already "developed" directive. The requirement is not simply for a "right to be heard", as might be expected for the purposes of procedural fairness. There was a need for at least some communication about the directive's operative contents prior to their effective finalisation.
[47] A flexible approach will always be demanded when considering whether the requirement for "consultation" demanded by s 48 of the HHB Act has been satisfied. And it might be satisfied in any number of ways. However, in these circumstances the legal requirements were clear and the lack of compliance with them is established. This ground of review must succeed. It is necessary to conclude that, in the language of s 20(2)(b) of the Judicial Review Act 1911 (Qld), the process of consultation required by s 48 of the HHB Act to be observed in the making of the decision was not observed.
[42]
Was the directive issued at the direction or behest of the Minister; was his opinion (that it should issue) an irrelevant consideration?
[43]
[48] The application will be allowed on ground 3. It would have succeeded also on grounds 1 and 2, although the questions raised under those headings are more difficult.
[49] The grounds read:
[44]
"Ground 1: The making of the Decision was an improper exercise of the power conferred by s 47 of the [HHB Act] because the Respondent exercised a personal discretionary power at the direction or behest of another person (JRA s 20(2)(e) and s 23(e)), namely the Minister for Health and Ambulance Services (Minister) and/or cabinet.
[45]
Ground 2: In the alternative to Ground 1, the making of the Decision was an improper exercise of power because the Respondent took into account an irrelevant consideration in exercising the power in s 47 of the [HHB Act] to make the Decision, namely the advice or opinion of the Minister and/or Cabinet (JRA s 20(2)(e) and s 23(a))."
[46]
[50] The power conferred by s 47 of the HHB Act to issue a directive is expressly and exclusively conferred upon the respondent. As a matter of law, it must therefore reflect his own decision. It is understandable, given the magnitude and importance of public health issues, why the HHB Act creates this requirement for independent and informed decision-making.
[51] It might be thought that the applicant must clear a high bar before it could be found that the respondent's decision was not his own. A finding that one of his decisions was made at another's direction could not be made without some judicial notice being taken of the respondent's experience and status. He holds a position of enormous responsibility and must make many independent decisions in the course of any given day. He is unlikely even to think of consulting the Minister about most of those. Further, the respondent has, at different points - such as in the Statement of Reasons - made the assertion that the directive does indeed represent his decision.[49]
[52] However, as noted above, much evidence points to the directive as giving effect to a decision made by the Minister. Its preparation began, it can be inferred, on the Minister's instruction, given on 20 January. On 24 January the Minister exercised decisive control over an amendment of some significance.[50] And he spoke, at the press conference, in a way that appropriated the effect of the direction as his own. Indeed, he gave his reasons for it.[51] And the respondent's efforts to ensure that the promulgation of the directive coincided with that press conference tend to confirm that it was the Minister's agenda which was being accommodated.
[53] Those circumstances compel, at least on the balance of probabilities, the inference that the directive issued not as the result of an independently exercised statutory discretion, but because the Minister wanted it to issue. The drawing of this inference is not prevented by the fact that the respondent was no doubt well across the issues and approved of the submission to Cabinet. The submission - whatever it was - was not a decision for the purposes of s 47.
[54] It would have been open, in different ways, to displace that inference, or at least weaken it to the point where it could not be drawn to the requisite standard.
[47]
(25) As the Director-General of Queensland Health, I am responsible for the overall management of the public sector health system. In performing the system manager role, I am responsible for issuing binding health service directives to HHSs, which include setting standards and policies for the safe and high-quality delivery of health services.
[48]
(26) As indicated above, on 20 January 2025 I was advised xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.
[49]
(27) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx In developing the HSD I ensured puberty blockers and sex hormones would remain available in the treatment of other medical conditions e.g., preconscious puberty in children and young people;
[50]
(28) I was cognisant that I could not issue the HSD unless it had been determined to be compatible with human rights. Accordingly, in arriving in my decision to issue the HSD, I considered a draft human rights compatibility assessment that had been prepared for me in relation to my instructions on the parameters of the proposed HSD. I agreed with the analysis of human rights in the document and adopted it as my own, as indicated by me approaching the Briefing Note. A copy of the human rights compatibility assessment is attachment 1 to these reasons.[53]
[51]
[59] Paragraph 25 is a job description.
[60] Paragraph 28 avers compliance with requirements of the Human Rights Act 2019 (Qld); neither party suggests that there is, in this application, any relevance to that legislation.
[61] The reasons, if they are to be discovered, must therefore be found in paras 26 and 27. The unredacted parts of those paragraphs speak for themselves. They contain no reasons.
[62] In response to the point made that the respondent did not give evidence, it is submitted that in litigation of this kind there should be reluctance to supplement a statement of reasons. This is said, in part at least, to be out of fairness to applicants. That submission would be more powerful if the statement of reasons contained discoverable reasons. I do not apprehend that the applicant would have complained about "unfairness" if the respondent had given evidence - the exercise would not so much have been about supplementing reasons as it would have been supplying them.
[63] The absence of any evidence proves nothing, but it means there is little to disturb the conclusion suggested by established circumstances. It must be considered more probable than not that the directive was issued at the direction of the Minister who "on behalf of the government" announced its effect.
[64] The respondent maintains that such conclusion should not be drawn, but does allow, in effect, that the decision was made "because of" a preference expressed to him by the Minister. This preference was, so the argument runs, for a position already endorsed by the respondent in the submission to cabinet - or at least, so it should be inferred. And he submits that in some circumstances an independent statutory discretion might legitimately be exercised in response to an expression of such a preference.
[65] These situations arise when the decision-maker is giving effect to government policy. Such decisions might not be characterised as being made at the direction of a Minister, nor as being tainted by the irrelevant consideration of a Minister's opinion, but rather as being taken after attributing the Minister's preference with "conclusive weight". If that is what occurred, then whether the communication from the Minister is characterised as a "direction", behest" or an "irrelevant consideration", it might be protected from impeachment pursuant to the (Qld).
[52]
"The question whether, absent express power to do so, a Minister can direct a public official, for whom he or she is responsible, in the exercise of a statutory discretion has been the subject of different approaches in this Court from time to time. The answer depends upon a variety of considerations including the particular statutory function, the nature of the question to be decided, the character of the decision-maker and the way in which the statutory provisions may bear upon the relationship between the Minister and the decisionmaker". [56]
[53]
[68] There is here no need to rationalise decades of jurisprudence formulated at the highest level. This statute is clear about the relationship between the Minister and the decision-maker. The Minister may direct the chief executive about the management of the Department. The fact that s 44F of the HHB Act is so precise on this point implies restriction on the capacity of the Minister to direct the chief executive about other things, such as issuing directives.[57]
[69] That restriction is tightened - to the point of occlusion - by the provision which allows the Minister himself[58] to issue directives to the Services,[59] so long as they are made public. This tells against any construction that would allow events to unfold as they did here, and which would enable the Minister to achieve inscrutably that which would otherwise have to be done transparently. The HHB Act places a premium on the chief executive's independence when directing the Services. There will no doubt be circumstances in which the Government's view will be a relevant consideration, but the s 47 discretion itself must be exercised by him, independently, in every case.
[70] To be clear, there can be in this case no suggestion that the Minister was trying to circumvent the requirements of the HHB Act. On the contrary, rather than suggest this was a decision of the chief executive, the Minister could not have been more open about his intentions, nor more insistent on his ownership of the decision.
[71] It should also be acknowledged that both the Minister and the respondent were operating in a problematic legal terrain, that has, as Mr Horton KC put it, seen "all the great minds of the High Court over the years ... at odds ...".[60] When in that sort of territory, it is hard to be critical when a finding is made, under this heading, that relevant actions fell on the wrong side of a fine line.
[72] Nor is there any point of general application to be delivered from this conclusion, which turns on specific provisions in the particular statute under consideration. Section 44 of that statute gives the Minister direct power to issue directives. He may not do so indirectly, through the chief executive's use of s 47. That is, essentially, what happened here.
[54]
[73] The orders of the court will be:
The application is allowed.
The respondent's decision to issue direction QH-HSD-058 be set aside.
The respondent is to pay the applicant's costs of the proceeding on the standard basis.
Leave is given to withdraw the applicant's application filed 8 October 2025.
[55]
[1] The respondent characterises the decision as a "suspension" of such treatment. That word is not used in the directive, but it is noted that a "systematic review" of medical services provided to children and adolescents was to be undertaken, and that the directive would be reviewed "within 12 months".
[7] Ibid s 8(2). Dr Rosengren, the respondent, is the chief executive of Queensland Health, and is in the materials also referred to as the Director-General.
[61]
[9] Exhibit 1 p 7. Respondent's Bundle of Material dated 2 June 2025 page 16 ('Exhibit 1'); T1-75-28.
[62]
[13] Ibid ss 47 and 48. Emphasis added. It is accepted that the impugned directive applied to all services.
[63]
[14] The respondent did also provide a "statement of reasons" for his decision, but as will be seen the version tendered in these proceedings is of limited utility.
[64]
[15] Affidavit of Peta Bryant 18 September 2025 [7].
[65]
[17] Affidavit of Damien Searle 29 August 2025 [10].
[27] Statement of Reasons [14] (Exhibit 1 p 9) ('Statement of Reasons').
[68]
[31] Affidavit of Matilda Alexander dated 30 June 2025, Exhibit MJA-9, p 55.
[69]
[41] Affidavit of Francis Tracey dated 1 September 2025.
[70]
[45]Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Others v QR Limited and Others[2010] FCA 591 at [45].
[52] It would also have been open for the Minister to testify that no direction was given to the respondent.
[73]
[56]CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at 537.
[74]
[58] In a matter of public interest, such as this case.
Parties
Applicant/Plaintiff:
AB
Respondent/Defendant:
Chief Executive of Queensland Health [2025] QSC 277
Legislation Cited (4)
Review Act 1991
Health Boards Act 2011
Review Act 1911
Rights Act 2019
Cases Cited (3)
(1977) 139 CLR 54
(1981) 180 CLR 404
(2015) 255 CLR 514
[55] Since the question resolves to an assessment as to the respondent's state of mind (as required by s 47), the most direct method of proof would have been evidence from him.[52] The respondent could have given evidence to the effect that the decision to issue the directive was his and his alone. It may not have been decisive, and would no doubt have been tested by cross-examination about some of the circumstances referred to above, but it would have provided a basis for resisting the applicant's contention.
[56] In the absence of direct evidence the respondent seeks to resist the inference, and maintain the independence of his decision, on the basis of his "statement of reasons".
[57] The reasons refer to "My decision" to issue the directive. They contain the heading of "Evidence and other material relied upon". This includes the cabinet submission (as noted, not in evidence) and the email of 20 January 2025, which must have reflected the Minister's position, and also referred to the briefing note. There is also text under the heading "Background".
[58] The functionally relevant part of the document, however, resolves to just four paragraphs, underneath the heading "Reasons for my decisions":
[66] That is, a distinction (appreciated by lawyers, but likely to be questioned by others) can be drawn between a decision-maker being ordered to do something, as opposed to being asked to do something and giving decisive effect to that request.
[67] In CPCF v Minister for Immigration and Border Protection,[54] French CJ identified a series of High Court cases in which this exquisitely nuanced legal conundrum has played out. His Honour summarised the situation by saying:[55]