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[2025] QCA 126
appellant. Leave to appeal granted in both proceedings; both appeals allowed; the primary judge’s orders set aside; the respondents’ summary dismissal applications dismissed; respondents ordered to pay the...
The Court of Appeal held that the applicants’ cases could continue even though the challenged COVID-19 directions had been revoked and the legislation authorising them had expired. The applicants alleged that the directions had affected their personal rights, work or businesses. Those alleged past effects could give them a sufficient interest to seek declarations, and the questions were not entirely hypothetical. The Court therefore set aside the summary dismissal orders. It did not decide whether a past human-rights infringement, by itself, would always support a declaration under s 10 of the Civil Proceedings Act.
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2,200 words · generated 07/10/2026
The Queensland Court of Appeal heard two appeals together: one brought by the Hunt applicants, principally business operators, and one brought by the Ishiyama applicants, a group of workers including teachers. Both groups had challenged COVID-19 vaccination-related directions made by the Chief Health Officer under Part 7A of the Public Health Act 2005 (Qld) (PHA). Their proceedings sought declarations that the directions were invalid, as well as orders to set them aside or quash them. The applications relied on several possible jurisdictional bases, including the Judicial Review Act 1991 (Qld) (JRA), the Court’s declaratory jurisdiction, and the Human Rights Act 2019 (Qld) (HRA). [3], [5], [43], [66]
9 cited instruments linked from this judgment.
The Hunt applicants challenged the Second and Third Social Measures Directions. Those directions restricted access to certain businesses, activities and undertakings based on vaccination status, and imposed compliance obligations on relevant operators. The Hunt applicants alleged that the directions affected their business operations and infringed common law and HRA rights. Their supporting material described effects including restrictions on entering or operating businesses, reduced patronage or turnover, and enforcement activity. [37]-[39], [47]-[64]
The Ishiyama applicants challenged the First and Second High-Risk Directions. Those directions required workers in specified high-risk settings to meet vaccination requirements. The applicants said they were workers who did not obtain a vaccination and were prevented from entering, remaining or working in their workplaces. Several described suspension, threatened disciplinary action, or loss of work. [35]-[36], [66]-[81]
The directions were revoked after the proceedings began. Part 7A also expired, leaving no power under that part to make the challenged directions. However, s 498 of the PHA preserved the ability to continue or commence proceedings for offences committed while Part 7A was in force. [34], [39]-[40]
The respondents applied under s 48 of the JRA to dismiss the proceedings. Their central position was that the applicants no longer had standing because the directions had ceased to operate, and that declarations would have no foreseeable consequences. The primary judge accepted the standing argument and summarily dismissed the applications. The Court of Appeal allowed the Hunt and Ishiyama appeals, set aside those orders and dismissed the respondents’ summary dismissal applications. [8]-[15], [125]-[126]
The central question was whether the applicants could still seek declarations about alleged past unlawful conduct after the directions had been revoked and the statutory powers had expired. The Court approached this as a question of whether each group retained a real or sufficient interest in the declarations sought. It noted that the terminology used in earlier cases included “real interest”, “sufficient interest”, “sufficient material interest” and “special interest”. The substance of the inquiry was whether the applicant had a material interest in the requested order. [93]-[95]
The Court relied on the explanation in Hobart International Airport Pty Ltd v Clarence City Council: a material interest may exist where a person is likely to gain an advantage, other than simply the satisfaction of righting a wrong or winning a contest, or suffer a disadvantage beyond a sense of grievance. Whether the interest is sufficient depends on the circumstances. [94]
The Court considered the applicants’ allegations of effects on their own rights, work and businesses. Bond JA concluded that, if the applicants established their factual cases, they would have a basis for complaint different from that of the public at large. He also considered it significant that the proceedings had proper contradictors. [101] The judgment did not decide whether the directions were in fact invalid or whether the alleged effects had been proved at trial. The question on appeal was whether the applications should be dismissed before those claims were heard.
The Court rejected the suggestion that revocation and expiry necessarily made the proceedings hypothetical. It reasoned that resolving the questions raised would address whether the conduct could be repeated, even though repetition of the same measures might require Parliament to reintroduce the relevant statutory provisions. [101] This reasoning supported the conclusion that the proceedings could have significance despite the directions no longer having effect.
The Court also addressed the Human Rights Act. Bond JA considered that past infringement of statutory human rights could, for natural-person applicants, support standing for declaratory relief. He further reasoned that the HRA’s interpretive provision, s 48, informed the construction of the statutory jurisdiction to make declarations. [102]-[105] Brown JA and Ryan J agreed with the orders and Bond JA’s reasons generally, but considered it unnecessary to determine whether a past HRA infringement without other consequences would independently support a declaration under s 10 of the Civil Proceedings Act. They considered that the applicants’ standing in relation to common law personal rights, together with the operation of s 59 of the HRA, was enough for the case. [127]-[129]
On summary dismissal, the Court rejected two additional submissions by the appellants. First, s 48 could apply to non-JRA claims included in an application for JRA relief. Its text expressly covered “a claim for relief in such an application”, and the structure of ss 43 and 47 supported that reading. [111]-[113] Second, the Court rejected the claim that s 48(1)(a) was subject to a very high threshold. It applied Brisbane City Child Care Pty Ltd v Kadell, which had rejected that proposed limitation. [114]
The Court concluded that there was no sufficient reason to deny the applicants the opportunity to have their claims tried. It referred to the strong public interest in determining whether there was merit in the alleged past contraventions, and noted the Commission’s earlier participation in support of aspects of the applicants’ case. [121] It did not undertake a first-instance assessment of the underlying merits because that had not been the basis on which the primary judge decided the matter or the basis of the notices of contention. [123]
Before this judgment, the High Court’s decision in Unions NSW v New South Wales had stated that past infringement of certain personal rights or interests may support declaratory relief even without other asserted legal consequences. It contrasted those circumstances with a challenge based solely on the implied freedom of political communication, which is not a personal right. The plurality in Unions NSW found that the plaintiffs before it could not show that their rights, duties or legal interests had been infringed or that a declaration would assist in vindicating such an interest. [96]-[98]
Bond JA applied that distinction to the applicants’ allegations. Unlike a party asserting only a general constitutional interest, these applicants alleged that the directions had personally affected them, their work or their businesses. The judgment therefore reinforces the significance of pleading and evidence of individualised effects when seeking declaratory relief about past executive action. It does not hold that every past breach, or a general interest in the legality of government action, is enough. The question remains one of degree and depends on the circumstances. [94], [101]
The judgment also drew on Ainsworth v Criminal Justice Commission, where the High Court recognised a real interest in declarations concerning procedural unfairness and reputational harm, and Plaintiff M68/2015 v Minister for Immigration and Border Protection, where the claimed interference with liberty supported a challenge to the lawfulness of past executive conduct. These authorities informed the Court’s view that the absence of a damages claim or other immediate legal consequence does not necessarily remove standing. [98]-[100]
The decision does not resolve all questions about human-rights-based standing. Bond JA considered that HRA rights could support declaratory relief, including through s 10 of the Civil Proceedings Act. Brown JA and Ryan J expressly treated that broader question as unnecessary to decide. Their shared reasoning was that the applicants could rely on alleged past infringements of common law personal rights or interests, and that the conditions for s 59 of the HRA were met where another ground of unlawfulness was available. [102]-[109], [127]-[129]
On summary dismissal, the judgment confirms that s 48 of the JRA can reach non-JRA claims included in an application for review. It also applies the broad character of s 48(1)(a) described in Kadell, while rejecting a proposed very high threshold. The decision is not that summary dismissal is unavailable whenever standing exists. Rather, on these facts, standing and the absence of another adequate basis for dismissal meant the claims should not be terminated summarily. [112]-[114], [117]-[122]
At [94], the Court explains that a person’s interest must be more than a desire to right a wrong, uphold a principle or win a contest. In plain English, the person must be affected in a way that gives them a practical stake in the declaration, although the nature and degree of that stake vary by case.
At [101], Bond JA says the applicants’ alleged circumstances, if proved, would distinguish them from the public at large. This means that claims of personal effects on work, business or individual rights may matter to standing even if the underlying public health measures affected many people.
Also at [101], the Court says the questions would determine “whether what has been done can be repeated”. The point was not that the same directions could automatically be reissued. Part 7A had expired. Rather, the Court considered that a decision about legality could still matter if the statutory framework were later reintroduced.
At [113], the Court reads s 48 as applying to both JRA applications and claims for relief included within them. In practical terms, adding non-JRA relief to an application for review does not, by itself, place that relief outside the statutory summary dismissal power.
At [121], Bond JA identifies a “strong public interest” in determining whether the applicants’ claims have merit. That observation supported allowing the proceedings to continue, but did not determine the claims’ merits or establish that the directions were unlawful.
At [128], Brown JA emphasises that the Court did not need to finally decide whether s 10 of the Civil Proceedings Act supports a declaration based solely on a past HRA infringement without asserted consequences. That qualification is important: the result should not be read as a definitive ruling on that question.
The reasoning is most directly relevant where a person seeks a declaration about allegedly unlawful executive action that has ended or been revoked before the case is decided. The applicant needs to identify a personal effect or interest, rather than rely only on disagreement with government policy or a general interest in legality. Here, the applicants alleged effects on common law personal rights, work, employment or businesses. [47]-[64], [70]-[81], [101]
The case may also be relevant where the challenged action no longer operates but a declaration could still address a live legal controversy, including whether the conduct could recur under a future statutory framework. The Court’s reasoning does not mean that every ended dispute remains justiciable. It treated possible repetition, the alleged individual effects and the availability of proper contradictors as relevant features. [94], [101]
For proceedings combining JRA and non-JRA claims, the decision is relevant to the scope of s 48. A claim does not escape that provision merely because it seeks declaratory or other relief on a basis separate from the JRA. [112]-[113] The decision also illustrates the need to distinguish standing from the ultimate merits: the Court allowed the claims to proceed without deciding whether the challenged directions were valid. [123], [125]-[126]
The judgment was delivered on 8 July 2025. The supplied judgment text does not identify any subsequent decisions applying, distinguishing or otherwise treating Hunt v Gerrard; Ishiyama v Aitken. Accordingly, later judicial treatment cannot be stated from this source.
The authorities discussed in the judgment are earlier decisions, not later treatment of this case. In particular, Bond JA considered Unions NSW, Ainsworth and Plaintiff M68/2015 when addressing standing for declarations about past conduct. The judgment also refers to Beale v Chief Health Officer as having reached a contrary view, explaining that Beale was decided before Unions NSW. [98]-[101] That discussion concerns the relationship between earlier authorities, not how courts have treated the 2025 judgment.
The most explicit unresolved issue is whether a past infringement of an HRA right, without other asserted legal consequences, is by itself enough to support a standalone declaration under s 10 of the Civil Proceedings Act. Bond JA considered that it could be; Brown JA and Ryan J considered it unnecessary to determine the issue. [102]-[105], [127]-[129]
The Court also did not decide whether the appellants would retain standing under the JRA if JRA relief were considered separately from the other claims. It was unnecessary to resolve that question once standing under another jurisdictional basis was established. [107]-[109]
Nor did the Court decide whether the challenged directions were invalid, whether the applicants’ evidence would be accepted at trial, or whether any particular HRA right was infringed. Those matters remained for the continuation of the proceedings. The Court expressly declined to assess the underlying legal and factual merits for the first time on appeal. [121]-[123]
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Hunt v Gerrard; Ishiyama v Aitken [2025] QCA 126
PARTIES: In Appeal No 3513 of 2024: / THOMAS GORDON HUNT / (first applicant) / KALIESHA LEE O'KEEFE / (second applicant) / OCHRE CATERING PTY LTD (ACN 605 220 963) T/A OCHRE RESTAURANT / (third applicant) / TROJON HOSPITALITY PTY LTD (ACN 648 268 713) T/A GOONDI HILL HOTEL / (fourth applicant) / BEAN OBSCENE PTY LTD (ACN 165 542 138) T/A RAMSON COFFEE / (fifth applicant) / SKY MAKAYLA RIXON T/A ELIXIR TAPAS BAR / (sixth applicant) / MISSION BEACH TAVERN PTY LTD (ACN 167 635 921) T/A MISSION BEACH TAVERN / (seventh applicant) / MIGHTY MAC PTY LTD (ACN 641 483 669) T/A HELGA’S PANCAKE HOUSE / (eighth applicant) / MARBEL FOXHOLE PTY LTD (ACN 624 784 872) T/A BAR WUNDER / (ninth applicant) / DAITHI JUDE SPALDING T/A SLAP AND PICKLE / (tenth applicant) / KANGAVENTURE PTY LTD (ACN 117 452 098) T/A THE BILLABONG KURANDA / (eleventh applicant) / JAR CONSULTING SERVICES PTY LTD (ACN 602 440 184) T/A BAMBINO ESPRESSO / (twelfth applicant) / v / DR JOHN GERRARD, CHIEF HEALTH OFFICER / (first respondent) / STATE OF QUEENSLAND / (second respondent) / ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND / (intervener) / In Appeal No 3515 of 2024: / CHERIE JEAN ISHIYAMA / (first applicant) / ROBERT WILLIAM WYLIE / (second applicant) / PETER GRANT MERRILL / (third applicant) / MEGAN RUTH PYNE / (fourth applicant) / SARAH DEW / (fifth applicant) / MEAGAN CLARE CURNOW / (sixth applicant) / MANDA SMOLCIC / (seventh applicant) / v / DR PETER AITKEN, FORMER CHIEF HEALTH OFFICER / (first respondent) / DR JOHN GERRARD, CHIEF HEALTH OFFICER / (second respondent) / STATE OF QUEENSLAND / (third respondent) / ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND / (intervener)
FILE NO/S: Appeal No 3513 of 2024 / Appeal No 3515 of 2024 / SC No 966 of 2022 / SC No 367 of 2022
DIVISION: Court of Appeal
PROCEEDING: Application for Leave/Judicial Review
ORIGINATING COURT: Supreme Court at Brisbane – [2024] QSC 6 (Martin SJA)
DELIVERED ON: 8 July 2025
DELIVERED AT: Brisbane
HEARING DATE: 30 August 2024
JUDGES: Bond and Brown JJA and Ryan J
ORDERS: **In proceeding Appeal No 3513 of 2024:****1.****The applicants have leave to appeal.****2.****The appeal is allowed.****3.****The respondents must pay the appellants’ costs of the appeal.****4.The orders made by the primary judge on 27 February 2024 in proceeding BS 966/22 are set aside and in lieu thereof it is ordered that -(a)the respondents’ summary dismissal application is dismissed; and(b)****the respondents must pay the applicants’ costs of the application.****In proceeding Appeal No 3515 of 2024:****1.****The applicants have leave to appeal.****2.****The appeal is allowed.****3.****The respondents must pay the appellants’ costs of the appeal.****4.The orders made by the primary judge on 27 February 2024 in proceeding BS 367/22 are set aside and in lieu thereof it is ordered that -(a)the respondents’ summary dismissal application is dismissed; and(b)**the respondents must pay the applicants’ costs of the application.
CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – STANDING TO INSTITUTE PROCEEDINGS – GENERALLY – where the Chief Health Officer issued a series of directions regarding vaccination against COVID-19 – where the appellants sought declaratory relief as to the invalidity of particular directions which had been made purportedly in lawful exercise of the Public Health Act 2005 (Qld) Part 7A powers and also sought orders quashing or setting aside those directions – where the directions were revoked after the applications had been filed – where the respondents brought an application for summary dismissal claiming the appellants no longer had standing – where the primary judge granted the summary dismissals on the basis that the appellants no longer had standing to seek the relief claimed in the various applications – where the respondents argued that the primary judge’s decision should be affirmed on the basis that none of the appellants were now exposed to any risk of future prosecution for non-compliance with the impugned decisions, and as such the relief sought would have no foreseeable consequences for the appellants – where the Attorney-General, as intervenor, argued that the primary judge’s decision could be affirmed on the alternate ground that it would be inappropriate for the proceedings to continue in circumstances where the appellants were no longer affected by the directions, and declarations would produce no foreseeable consequences – where the standard of appellate review to be applied was the “correctness standard” as explained in Warren v Coombes (1979) 142 CLR 531 – whether the primary judge erred in concluding that the applicants had no standing to seek declaratory relief concerning alleged past breaches of their common law rights or their rights under the Human Rights Act 2019 (Qld) – whether the primary judge erred by exercising power under Judicial Review Act 1991 (Qld) s 48 in relation to claims that were not made under that Act – whether the primary judge erred by failing to apply a very high threshold to a summary application – whether the primary judge erred by failing to appreciate that once the Attorney-General and the Commission had become parties the question of the standing of the appellants had become irrelevant – whether the primary judge’s decision should nevertheless be affirmed on the grounds proposed by the respondents and the Attorney-General – whether the primary judge erred in awarding costs to the respondents from 4 February 2023 / Civil Proceedings Act 2011 (Qld), s 10 / Human Rights Act 2019 (Qld), s 58, s 59 / Judicial Review Act 1991 (Qld), s 22, s 43, s 47, s 48(1), s 48(5) / Public Health Act 2005 (Qld), s 315, s 319, s 324, s 362A, s 362B / Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020 (Qld) / Brisbane City Child Care Pty Ltd v Kadell (2020) 5 QR 367; [2020] QCA 181, applied / Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421; [1972] HCA 61, considered / (2023) 97 ALJR 857; [2023] HCA 32, considered / (2022) 276 CLR 519; [2022] HCA 5, considered / (1936) 55 CLR 499; [1936] HCA 40, cited / (2016) 344 ALR 101; [2016] NSWCA 157, cited / (2020) 5 QR 623; [2020] QSC 293, cited / (2024) 98 ALJR 1119; [2024] HCA 30, considered / (2016) 257 CLR 42; [2016] HCA 1, considered / (2023) 277 CLR 627; [2023] HCA 4, considered / (1979) 142 CLR 531; [1979] HCA 9, cited
COUNSEL: P Zappia KC, with N Dour, for the applicants / S A McLeod KC, with B I McMillan and P H Nevard, for the respondents / D P O'Brien KC, with F J Nagorcka, for the intervener
SOLICITORS: Alexander Law for the applicants / G R Cooper, Crown Solicitor for the respondents / G R Cooper, Crown Solicitor for the intervener
Introduction
BOND JA: Chapter 8 Part 7A of the Public Health Act 2005 (Qld) (the PHA) conferred wide powers on the chief health officer1 and other emergency officers2 in respect of issues arising under the COVID-19 pandemic in Queensland.
Proceedings BS 11254/21, BS 367/22 and BS 966/22 were each commenced by application in the trial division of the Supreme Court of Queensland by a separate group of applicants. It is convenient to identify the applicants in BS 11254/21 as the Johnston applicants, the applicants in BS 367/22 as the Ishiyama applicants and the applicants in BS 966/22 as the Hunt applicants and those proceedings respectively as the Johnston, Ishiyama and Hunt proceedings.
In each proceeding, the relevant group of applicants sought declaratory relief as to the invalidity of particular directions which had been made purportedly in lawful exercise of Part 7A powers and also sought orders quashing or setting aside those directions. Principal amongst the complaints advanced in each proceeding were allegations that various directions made by the chief health officer had been made unlawfully and to the detriment of the applicants’ rights under the common law and under the Human Rights Act 2019 (Qld) (the HRA).
The respondents in the Johnston proceeding were the Commissioner of the Queensland Police Service and the then current chief health officer. The respondents to the Ishiyama proceeding were a former chief health officer, the then current chief health officer and the State of Queensland. The respondents to the Hunt proceeding were the then current chief health officer and the State of Queensland.
Section 43 of the Judicial Review Act 1991 (Qld) (the JRA) and Chapter 14 Part 4 of the Uniform Civil Procedure Rules 1999 (Qld) combine to permit claims for non-JRA relief to be advanced in an application for JRA relief and to that end require a party seeking to do so to make necessary modifications to the approved forms. Each of the applications in the present case was styled as an “application for a statutory order of review” under the JRA. In each “application for a statutory order of review” the applicants invoked the jurisdiction of the Court under the JRA to grant relief pursuant to s 20 (application for a statutory order of review) or s 43 (application for review). However, each group of applicants also included in the “application for a statutory order of review” claims for declaratory relief specifically founded on the following alternative bases for the Supreme Court’s jurisdiction to grant the applicants’ claims for the declaratory and other relief –the inherent jurisdiction of the Supreme Court;the jurisdiction of the Supreme Court pursuant to s 10 of the (Qld) () to make declaratory orders without granting consequential relief;the jurisdiction of the Supreme Court under s 59 of the HRA to grant relief or remedy in relation to an act or decision of a public entity on the ground of unlawfulness arising under s 58 of that Act, namely acting or making a decision in a way not compatible with human rights, in making a decision, failing to give proper consideration to relevant human rights.
“In some circumstances, and consistent with the principles recently articulated by the High Court in Unions NSW v New South Wales (No. 3),3 past infringements of human rights may be sufficient to give standing for declaratory relief even without other legal consequences. The High Court reaffirmed that sufficiency of interest is a matter of degree and the categories of interests that may be protected by judicial orders are broad.”
The three applications for summary dismissal were heard together by the primary judge. His Honour found in favour of the respondents’ applications and made appropriate summary dismissal orders and also orders that the applicants pay the respondents’ costs of the proceeding incurred on and from 1 February 2023: see Johnston v Carroll; Ishiyama v Aitken; Hunt v Gerrard [2024] QSC 6.4 Save in one respect,5 the primary judge did not found his conclusion the application should be summarily dismissed on any assessment as to whether the applicants’ material gave rise to an arguable claim on the legal or factual merits, if the applicants did have standing. Rather, his Honour accepted that the applications for summary dismissal should be granted “on the basis that the applicants no longer have standing to seek the relief claimed in the various applications”.6
The Hunt applicants and the Ishiyama applicants have each appealed. In this Court, proceeding Appeal No 3513/24 relates to the orders made in the Hunt proceeding and proceeding Appeal No 3515/24 relates to the orders made in the Ishiyama proceeding. Both the Hunt applicants and the Ishiyama applicants have the same representation. Both groups seek orders setting aside the orders made below and substituting orders dismissing the summary dismissal applications and requiring the respondents to pay the applicants’ costs of the summary dismissal applications and of the appeals.
The respondents oppose the appeals. By notice of contention, they argue that the primary judge’s decision should be affirmed on the basis that –none of the appellants were now exposed to any risk of future prosecution for non-compliance with the impugned directions; and, as such,the relief sought would have no foreseeable consequences for the appellants.
The Attorney-General also appeared so as to oppose the appeals. She filed a notice of contention that the primary judge’s decision could be affirmed on an alternative ground. That is, if it was shown that the primary judge erred this Court should re-exercise the discretion in s 48(1) of the JRA to dismiss the application for review on the basis that it would be inappropriate for the proceedings to continue in circumstances where the appellants were no longer affected by the directions, and declarations would produce no foreseeable consequences.
Although, by operation of s 51(2) of the HRA, the Commission was a party to the appeals, it notified the parties that it did not intend to participate in them. Consistently with that notification, the Commission did not seek to be heard on the appeals.
Relevant legislative and procedural background
The legislative regime
By the Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020 (Qld) a new Part 7A was inserted into Chapter 8 of the PHA. The new part contained ss 362A to 362MAJ. It is appropriate to outline the structure of Chapter 8 as so amended.
Pursuant to s 319 the Minister was empowered to declare by a signed written order a public health emergency in the event of being satisfied that there was a public health emergency, and it was “necessary to exercise powers under [chapter 8] to prevent or minimise serious adverse effects on human health.” The term “public health emergency” was defined as “an event or a series of events that has contributed to, or may contribute to, serious adverse effects on the health of persons in Queensland.” An order made under s 319 was defined as a “public health emergency order”.
Pursuant to s 324 the Minister was required to end a declared public health emergency as soon as the Minister was satisfied it was no longer necessary to exercise powers under chapter 8 to prevent or minimise serious adverse effects on human health.
Amongst other things, a public health emergency order was required to state the duration of the order (s 320) and the Minister was obliged to publish the order by gazette notice and in relevant mass media as soon as possible after it was declared (s 321). A public health emergency order started when declared and ended 7 days thereafter, unless ended sooner by the Minister under s 324 or a regulation made under s 323 extended the period of the declared public health emergency beyond the end of the 7 days (s 322).
Pursuant to s 323, the period of a declared public health emergency could be extended or further extended by periods of not more than 90 days.
“COVID-19 emergency” was a term defined in s 315 as “…the public health emergency declared by the Minister on 29 January 2020 under section 319(2), as extended and further extended under section 323”.
Division 1 of Part 7A contained s 362A. Section 362A stated that the purpose of Part 7A of the PHA was to confer additional powers for the COVID-19 emergency on the chief health officer and emergency officers.
Division 2 of Part 7A dealt with the powers conferred on the chief health officer. As to this:
(a)Section 362B empowered the chief health officer to give directions in these terms:
“362B****Power to give directions
(1)This section applies if the chief health officer reasonably believes it is necessary to give a direction under this section (a public health direction) to assist in containing, or to respond to, the spread of COVID-19 within the community.
(2)The chief health officer may, by notice published on the department’s website or in the gazette, give any of the following public health directions—
(a)a direction restricting the movement of persons;
(b)a direction requiring persons to stay at or in a stated place;
(c)a direction requiring persons not to enter or stay at or in a stated place;
(d)a direction restricting contact between persons;
(e)any other direction the chief health officer considers necessary to protect public health.
(3)A public health direction must state—
(a)the period for which the direction applies; and
(b)that a person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction.”
(b)Section 362C specified when public health directions took effect.
(c)Section 362D provided that a person to whom a public health direction applied must comply with the direction unless the person had a reasonable excuse and specified that the maximum penalty for non-compliance was a fine of 100 penalty units or 6 months imprisonment.
(d)Section 362E obliged the chief health officer to revoke a public health direction as soon as reasonably practicable after becoming satisfied that the direction was “no longer necessary to assist in containing, or to respond to, the spread of COVID-19 within the community.”
(a)Pursuant to ss 362G and 362H an emergency officer was empowered –
(i)to give persons directions to stay at or in a stated place for a stated isolation period of not more than 14 days and to comply with stated conditions during the isolation period;
(ii)to give a parent of a child a similar direction in relation to the child.
(b)Pursuant to ss 362G and 362I an emergency officer was empowered to give the owner or operator of any business or undertaking a direction to open or close the facility used in conducting the business or undertaking or to limit access to the facility.
(c)Section 362J provided that a person to whom a direction was given under Division 3 must comply with the direction unless the person had a reasonable excuse and specified that the maximum penalty for non-compliance was a fine of 100 penalty units.
(d)Section 362K obliged the emergency officer to revoke a direction given under Division 3 as soon as reasonably practicable after becoming satisfied that the direction was “no longer necessary to assist in containing, or to respond to, the spread of COVID-19 within the community.”
Division 4 of Part 7A dealt with enforcement of directions and contained s 362L. Pursuant to s 362L emergency officers were empowered to use necessary and reasonable force to take action to enforce compliance with directions made under divisions 2 or 3 of Part 7A.
Division 5 of Part 7A contained s 362M. Section 362M provided that nothing in part 7A limited the powers which might be exercised by an emergency officer under parts 6 or 7 to respond to the COVID-19 emergency and vice versa. Division 6 of Part 7A contained detailed provisions governing the collection of personal information in certain respects.
Division 7 of Part 7A contained s 362MAJ. Section 362MAJ stated a statutory sunset clause applicable to the Part 7A powers. Part 7A was to expire on the “COVID-19 public health legislation expiry day”, which was a term defined in s 315 as the earlier of –
“(a)the day the ‘COVID-19 emergency’ ends under section 324(1); or
(b)31 October 2022.”
“(1)This section applies in relation to an offence against repealed section 362D or repealed section 362J committed by a person before the commencement.
(2)Without limiting the Acts Interpretation Act 1954, section 20, a proceeding for the offence may be continued or started, and the person may be convicted of and punished for the offence, as if chapter 8, part 7A had not expired.
(3)Subsection (2) applies despite the Criminal Code, section 11.
(4)In this section—
repealed, for a provision of this Act, means the provision as in force from time to time before the commencement.”
The making and subsequent revocation of the impugned directions7
On 11 December 2021, the former chief health officer gave a direction entitled “COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction” (the First High-Risk Direction). Broadly, that direction provided that workers must not enter and remain in, work in, or provide services in a high-risk setting unless the worker had, subject to certain exemptions:received the first dose of a COVID-19 vaccine by 17 December 2021;received the prescribed number of doses of a COVID-19 vaccine by 11.59 pm on 23 January 2022; andshown evidence of having received the COVID-19 vaccine to their employer or the responsible person.
High-risk settings were defined as services, businesses or activities declared to be a high-risk setting by the chief health officer under the direction, and included some educational settings, corrective services facilities, police watch houses, youth detention centres, and airports. On 4 February 2022, the chief health officer gave a direction entitled “COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2)” (the Second High-Risk Direction). The Second High-Risk Direction imposed similar obligations as the First High-Risk Direction but required that workers in a high-risk setting be “fully vaccinated”.
The chief health officer also gave a direction on 24 December 2021, entitled the “Public Health and Social Measures linked to vaccination status Direction (No. 2)” (Second Social Measures Direction), and on 8 February 2022, entitled the “Public Health and Social Measures linked to vacation status Direction (No. 3)” (Third Social Measures Direction).
Those directions provided that, among other things, a person could only enter and remain at particular businesses, activities or undertakings where the person was fully vaccinated against COVID-19 and provided proof, or where an unvaccinated person provided evidence of a medical contraindication or participation in a vaccine trial. Persons who operated relevant businesses or activities were required, among other things, to comply with the vaccination entry requirements and take reasonable steps to ensure staff and visitors also complied with them.
Since the applications were filed, each of the challenged directions has been revoked. The First High-Risk Direction was revoked by the Second High-Risk Direction, and the Second High-Risk Direction was revoked by a direction of the chief health officer published on 30 June 2022. The Second Social Measures Direction was revoked by the Third Social Measures Direction, and the Third Social Measures Direction was revoked by a direction of the chief health officer made on 4 March 2022.
In addition, Part 7A of the PHA has been deleted and there is now no power to make the directions which are the subject of the challenges. The primary judge recorded the effect of s 362MAJ of the PHA and noted that the parties before him had proceeded on the basis that Part 7A expired on 31 October 2022.
The Hunt proceeding
It is appropriate to record in a little more detail the nature of the relief claimed by the Hunt applicants in the Hunt proceeding, the grounds on which the relief was claimed and the matters established by the evidence relied on by the Hunt applicants.
The Hunt applicants challenged both the Second Social Measures Direction and the Third Social Measures Direction (collectively, the Social Measures Directions).
The application described itself as an application to review the chief health officer’s decisions to make the Social Measures Directions “… pursuant to section 20, or alternatively section 43 of [the JRA], or alternatively pursuant to section 10 of [the CPA], or alternatively pursuant to the Court’s inherent jurisdiction to review, and additionally pursuant to section 59 of [the HRA].”
The proceeding named 12 applicants of whom 4 were natural persons and 8 were corporations. In their written submissions in this Court, the Hunt applicants described themselves as:
“… business-owners in the hospitality industry, whose relevant responsible persons did not obtain a COVID-19 vaccination and were by reason of the Social Measure Directions prevented from entering, remaining or working in their business and from permitting staff and customers who were not vaccinated from entering, remaining or working in their business.”
The Hunt applicants contended that they were aggrieved of the Social Measures Directions on the following grounds –the Social Measures Directions were not authorised by the enactment pursuant to which they were purported to be made;further or alternatively, insofar as s 362B of the PHA authorised the Social Measures Directions and s 362D of the PHA required compliance with them, those provisions and/or the Social Measures Directions respectively were inconsistent with a Commonwealth Law and/or the Commonwealth Constitution and were invalid such that the chief health officer had no statutory authority to give the Social Measures Directions;8further or alternatively, a breach of the rules of natural justice occurred in connection with the making of the Social Measures Directions and thereby they were not available to the chief health officer;further or alternatively, the chief health officer, in making the Social Measures Directions did not have jurisdiction to make them and thereby they were not available;further or alternatively, the making of the Social Measures Directions were an improper exercise of the power conferred by the PHA on the chief health officer pursuant to which each was purported to be made and thereby the making of the Social Measures Directions were not available to the chief health officer;further or alternatively, the Social Measures Directions involved an error of law and thereby the Social Measures Directions were not available to the chief health officer;further or alternatively, there was no probative evidence or other material to justify the making of the Social Measures Directions and thereby the Social Measures Directions were not available to the chief health officer;further or alternatively, the Social Measures Directions were otherwise contrary to law and thereby the making of the Directions were not available to the chief health officer.
The Hunt applicants pleaded further detail in relation to each of those grounds in the body of their application. Before this Court the Hunt applicants sought to justify their standing by reference only to the alleged infringement of their common law rights, their various human rights under the HRA, and the contention that s 362B was contrary to the Commonwealth Constitution and invalid, so it is necessary only to focus on summarising the case pleaded in relation to those grounds.
The Hunt applicants pleaded that they had not obtained a COVID-19 vaccination and accordingly they had not complied with either the Second Social Measures Direction and the Third Social Measures Direction. Having regard to their pleading of the effect of the Social Measures Directions, it would follow that their pleaded case was that they were, by reason of the Social Measure Directions, prevented from entering, remaining or working in the relevant businesses and from permitting staff and customers who were not vaccinated from entering, remaining or working in the relevant businesses.
(a)Section 362B did not authorise9 the giving of directions which (as the Social Measures Directions did) –
(i)imposed conditions of employment upon employers and staff involved in the businesses the subject of the directions;
(ii)imposed conditions of entry upon property upon visitors entering and remaining in such businesses;
(iii)imposed conditions upon employers carrying on their lawful business activities or undertakings;
(iv)conditions of occupation and entry upon persons owing or having exclusive occupation of property.
(b)Section 362B did not authorise10 the giving of directions which (as the Social Measures Directions did) impaired, impermissibly burdened, removed or affected fundamental common law rights of the Hunt applicants namely the:
(i)the right to bodily integrity;
(ii)the right to be free of non-consensual medical treatment;
(iii)property rights;
(iv)the right to carry on a lawful trade and business undertaking;
(v)the right to work and earn a livelihood; and
(vi)the right to maintain confidential information.
(c)The Social Measures Directions were incompatible with the Hunt applicants’ rights in the following sections of the HRA:
(i)s 15 (recognition and equality before the law, including the right to enjoy human rights without discrimination, the right to equality before the law and the entitlement to equal protection of the law without discrimination, and the right to equal and effective protection against discrimination);
(ii)s 17(c) (a person must not be subjected to medical or scientific experimentation or treatment without the person’s full, free and informed consent);
(iii)s 19 (every person lawfully within Queensland has the right to move freely within Queensland and to enter and leave it, and has the freedom to choose where to live);
(iv)s 20 (every person has the right to freedom of thought, conscience, religion and belief and must not be coerced or restrained in a way that limits the persons freedom to have or adopt a religion or belief);
(v)s 21 (every person has the right to hold an opinion without interference);
(vi)s 23(2)(b) (every eligible person has the right, and is to have the opportunity, without discrimination to have access, on general terms of equality, to the public service and to public office);
(vii)s 24 (all persons have the right to own property alone or in association with others and a person must not be arbitrarily deprived of the person’s property);
(viii)s 25 (a person has the right not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with);
(ix)s 29(1) (every person has the right to liberty and security); and
(x)s 36(2) (every person has the right to have access, based on the person’s abilities, to further vocational education and training that is equally accessible to all).
(d)By the application of s 48 of the HRA (which instructs that all statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible, or at least the most compatible, with human rights), s 362B of the PHA could not be construed as empowering the chief health officer to give such directions.
(e)Alternatively, the Social Measures Directions infringed the Hunt applicants’ human rights aforesaid beyond reasonable limits and by the application of s 48 of the HRA, s 362B of the PHA could not be construed as empowering the chief health officer to give such directions.
(f)Section 362B of the PHA did not empower the chief health officer to make a direction that contravenes or is incompatible with other relevant legislation and the Social Measures Directions contravened or were incompatible with the HRA in that –
(i)The Social Measures Directions contravened the Applicants’ rights in ss 15, l7(c), 19, 20, 21, 23(2)(b), 24, 25, 26, 29(1) and 36(2) of the HRA;
(ii)The Social Measures Directions were incompatible with rights in ss 15, 17(c), 19, 20, 21, 23(2)(b), 24, 25, 29(1), 26 and 36(2) of the HRA;
(iii)In making the Social Measures Directions the chief health officer failed to give proper consideration to the Applicants’ rights in ss 15, 17(c), 19, 20, 21, 23(2)(b), 24, 25, 29(1), and 36(2) of the HRA;
(iv)By reason of the matters aforesaid the Social Measures Directions contravened s 58 of the HRA and were unlawful;
(v)Further, the Social Measures Directions impaired the Applicants’ rights aforesaid beyond reasonable limits and in a manner that could not be demonstrably justified and therefore contravened s 13 of the HRA and were unlawful.
In relation to the claim of constitutional invalidity the Hunt applicants asserted that insofar as ss 362B and 362D of the PHA authorised the Social Measures Directions and their enforcement, those provisions and the Social Measures Directions were invalid – because they violated Chapter III of the Commonwealth Constitution such as by conferring powers on the state courts of Queensland which were repugnant to or incompatible with the exercise by those courts of the Judicial Power of the Commonwealth; and further or alternativelybecause they imposed an impermissible burden on the implied freedom of political communication under the Commonwealth Constitution.
The Hunt applicants claimed the following relief:11a declaration that the Social Measures Directions were not authorised by s 362B of the PHA and were invalid;alternatively, a declaration that ss 362B and 362D of the PHA were invalid and that the Social Measures Directions were invalid;alternatively, a declaration pursuant to ss 30 and/or 43 and/or 47 of the JRA and/or s 10 of the CPA and/or the inherent jurisdiction of the Court that the Social Measures Directions were invalid;further and alternatively, a declaration that the Social Measures Directions contravened ss 13 and/or 58 of the HRA and were unlawful and a declaration under section 59 of the HRA that the Social Measures Directions were invalid;further, pursuant to s 30 of the JRA and/or the inherent jurisdiction of the Court an order that the Third Social Measures Direction be set aside;further or alternatively, pursuant to ss 43 and 47 of the JR Act and/or the inherent jurisdiction of the Court and/or s 59 of the HRA, an order that the Third Social Measures Direction be quashed;further or alternatively, pursuant to ss 43 and 47 of the JR Act and/or the inherent jurisdiction of the Court and/or s 59 of the HRA, an injunction restraining the respondents from acting in respect of the Social Measures Directions;such further or other declaration or order as the Court thought fit;costs.
In March 2022, and in apparent compliance with interlocutory orders made to file and serve affidavit material on which they intended to rely for the hearing of their application for final relief, the Hunt applicants filed a number of affidavits. The table below identifies the affidavits which were filed.
Natural person Corporation Deponent
First Applicant Thomas Gordon Hunt No affidavit filed
Second Applicant Kaliesha Lee O'Keefe No affidavit filed
Third Applicant Ochre Catering Pty Ltd Craig John Squire, owner and director of the third applicant
Fourth Applicant Trojon Hospitality Pty Ltd Troy Jones, director of the fourth applicant
Fifth Applicant Bean Obscene Pty Ltd Kirby Koopman, manager and company secretary of the fifth applicant
Sixth Applicant Sky Makayla Rixon No affidavit filed
Seventh Applicant Mission Beach Tavern Pty Ltd Jeanette Lamb, manager and part owner of the seventh applicant
Eighth Applicant Mighty Mac Pty Ltd Birgit Ariane Machnitzke, director and owner of the eighth applicant
Ninth Applicant Marbel Foxhole Pty Ltd Mark McElligot, company director and co-owner of the ninth applicant
Tenth Applicant Daithi Jude Spalding Daithi Jude Spalding, the tenth applicant
Eleventh Applicant Kangaventure Pty Ltd Jake Pelling, director of the eleventh applicant
Twelfth Applicant Jar Consulting Services Pty Ltd Annika Marie Roberts, director and owner of the twelfth applicant
The affidavits were not completely identical in form but, as will appear, there was a great deal of common ground concerning the impact which the Social Measures Directions had on businesses of the nature of those run by the Hunt applicants.
As recorded in the table, no affidavit was filed from either Mr Thomas Gordon Hunt, the first applicant, or Ms Kaliesha Lee O'Keefe, the second applicant.
As to the third applicant:
(a)An affidavit by Mr Craig John Squire sworn 26 February 2022 was filed.
(b)Mr Squire was the owner and director of the third applicant, which conducted a business known as the Ochre Restaurant.
(c)He was fully vaccinated.
(d)The Social Measures Directions affected Mr Squire’s business directly as he owned and operated a business, activity or undertaking as listed in schedule 1 to the Social Measures Directions as a hospitality venue.
(e)The Social Measures Directions:
(i)prevented Mr Squire from allowing persons to visit, enter and remain in the business who were not fully vaccinated;
(ii)required Mr Squire to treat staff and visitors differently based upon vaccination status;
(iii)affected the earning potential of the business by reducing turnover significantly;
(iv)operated unfairly on Mr Squire’s business in comparison with others; and
(v)restricted the way Mr Squire could operate the business.
(a)An affidavit by Mr Troy Jones sworn 3 March 2022 was filed.
(b)Mr Jones was the director of the fourth applicant, which operated a business known as the Goondi Hill Hotel.
(c)He did not want to be vaccinated because –
(i)of conflicting expert medical advice and opinion for and against the COVID-19 vaccination benefits versus risks and adverse reactions;
(ii)he did not believe that the COVID-19 virus was a danger to him, his family, his staff or customers;
(iii)the COVID-19 vaccines were still in their trial phase and there was an absence of any long-term data;
(iv)his understanding was that people who were vaccinated may still contract and transmit COVID-19;
(v)his understanding was that the Federal Government of Australia’s position was that vaccinations were voluntary; and
(vi)his understanding was that the COVID-19 vaccine was not a two dose medication and he understood booster shots were required.
(d)The Social Measures Directions affected Mr Jones’ business directly as he owned and operated a business, activity or undertaking as listed in schedule 1 to the Social Measures Directions as a hospitality venue in a hotel.
(e)The Social Measures Directions:
(i)prevented Mr Jones from entering the premises of his business;
(ii)prevented Mr Jones from hiring or retaining staff who are not fully vaccinated;
(iii)prevented Mr Jones from allowing persons to visit, enter or remain in the business who were not fully vaccinated;
(iv)required Mr Jones to treat staff and visitors differently based on their vaccination status;
(v)adversely affected the earning potential of the business by lowering foot traffic and reducing turnover significantly;
(vi)operated unfairly on Mr Jones’s business in comparison with others; and
(vii)restricted the way Mr Jones could operate the business.
(a)An affidavit by Mr Kirby Koopman sworn 3 March 2022 was filed.
(b)Mr Koopman was the manager and company secretary of the fifth applicant, which conducted a business known as Ransom Coffee and which supplied coffee products to other businesses.
(c)He did not want to be vaccinated, and listed the same reasons as had Mr Jones. In addition he mentioned that he had suffered from Ciguatera for 12 years and felt that any new toxins or chemicals could be potentially damaging.
(d)The Social Measures Directions affected Mr Koopman’s business directly as his business supplied products to businesses affected by the Social Measures Directions. Of the 80 businesses in Queensland to which Mr Koopman’s business supplied coffee products, 7 had closed down since 2 January 2022. Further, from 2 January 2022 his business had received a significant number of order cancellations.
(e)The Social Measures Directions had the effect of:
(i)prevented Mr Koopman from entering the premises of his clients’ businesses;
(ii)prevented Mr Koopman from hiring or retaining staff who were not fully vaccinated;
(iii)adversely affected the earning potential of the business by reducing the number of patrons which his clients’ businesses could host.
No affidavit was filed from Ms Skay Makayla Rixon, the sixth applicant.
As to the seventh applicant:
(a)An affidavit by Ms Jeanette Lamb sworn 28 February 2022 was filed.
(b)Ms Lamb was manager and part owner of the seventh applicant, which conducted a business known as the Mission Beach Tavern.
(c)She did not wish to be vaccinated, and listed the same reasons as had Mr Jones.
(d)The Social Measures Directions affected Ms Lamb’s business directly as she was an unvaccinated person who owned and operated a business, activity or undertaking as listed in schedule 1 to the Social Measures Directions as a hospitality venue.
(e)Ms Lamb interacted with enforcement authorities in relation to the Social Measures Directions. On 22 December 2021, Ms Lamb’s business was fined for not complying with the Social Measures Directions. On 26 December 2021, Sargent Rob Smith entered the business and asked one staff member to leave the premises as he was unvaccinated. On 26 January 2022, police officers raided the business, asking customers and staff for proof of vaccination status, directing staff to leave and not return to work until providing proof of vaccination status, and fining one staff member. On 28 January 2022, staff from the OLGR provided Ms Lamb with a closure notice and directed that Ms Lamb’s business be closed for 30 days.12
(f)The Social Measures Directions:
(i)prevented Ms Lamb from entering the premises of her business;
(ii)prevented Ms Lamb from hiring or retaining staff who were not fully vaccinated;
(iii)prevented Ms Lamb from allowing persons to visit, enter and remain in her business who were not fully vaccinated;
(iv)required Ms Lamb to treat staff and visitors differently based upon vaccination status;
(v)adversely affected the earning potential of the business by lowering foot traffic and reducing turnover by more than half;
(vi)operated unfairly on Ms Lamb’s business in comparison with others e.g. unvaccinated visitors to food courts or supermarkets could purchase food and drinks but could not do the same in her business; and
(vii)restricted the way Ms Lamb could operate the business.
(a)An affidavit by Ms Birgit Ariane Machnitzke sworn 28 February 2022 was filed.
(b)Ms Machnitzke was the owner and director of the eighth applicant, which conducted a business known as Helga’s Pancake House.
(c)She did not want to be vaccinated, and listed the same reasons as had Mr Jones.
(d)The Social Measures Directions affected Ms Machnitzke’s business directly as she was an unvaccinated person who owned and operated a business, activity or undertaking as listed in schedule 1 to the Social Measures Directions as a hospitality venue.
(e)The Social Measures Directions:
(i)prevented Ms Machnitzke from entering the premises of her business;
(ii)prevented Ms Machnitzke from hiring or retaining staff who were not fully vaccinated;
(iii)prevented Ms Machnitzke from allowing persons to visit, enter or remain in the business who were not fully vaccinated;
(iv)required Ms Machnitzke to treat staff and visitors differently based on their vaccination status;
(v)adversely affected the earning potential of the business because Ms Machnitzke was forced to turn it into takeaway service only;
(vi)operated unfairly on Ms Machnitzke’s business in comparison with others; and
(vii)restricted the way Ms Machnitzke could operate the business.
(a)An affidavit by Mr Mark McElligot sworn 3 March 2022 was filed.
(b)Mr McElligot was a director and co-owner of the ninth applicant, which operated a bar in Toowoomba known as the Bar Wunder.
(c)He did not want to be vaccinated, and listed the same reasons as had Mr Jones.
(d)The Social Measures Directions affected Mr McElligot’s business directly as he was an unvaccinated person who owned, controlled and operated a business, activity or undertaking as listed in schedule 1 to the Social Measures Directions as a hospitality venue.
(e)Mr McElligot deposed to having interacted with enforcement authorities in relation to the Social Measures Directions. On 18 December 2021, Mr McElligot was issued a fine for $6,982 for non-compliance with the Second Social Measures Direction. On 22 December 2021, the business was issued with a closure notice (a direction under s 362I of the PHA). On 24 December 2021, Mr McElligot was served with summons to appear at the Magistrates’ Court on 25 January 2022 for breaches of the directions. On 31 December 2021 the business was closed by police officers. On 15 January 2022, a police officer and a locksmith changed all the locks to the entry points of the business. On 16 January 2022, Mr McElligot and his partner were arrested for contravening s 362J of the PHA. On 28 January 2022, the business was issued with a further closure notice until 28 February 2022. On 28 February 2022, the business was issued with a further closure notice until 31 March 2022.
(f)The Social Measures Directions:
(i)prevented Mr McElligot from entering the premises of his business;
(ii)prevented Mr McElligot from hiring or retaining staff who were not fully vaccinated;
(iii)prevented Mr McElligot from allowing persons to visit, enter or remain in the business who were not fully vaccinated;
(iv)required Mr McElligot to treat staff and visitors differently based on their vaccination status;
(v)adversely affected the earning potential of the business by lowering foot traffic and reducing turnover by more than half;
(vi)operated unfairly on Mr McElligot’s business in comparison with others; and
(vii)restricted the way Mr McElligot could operate the business.
(g)Mr McElligot received a Notice to take Disciplinary Action and was charged with a breach of s 362D of the PHA.
It is appropriate to pause to elaborate the position which attends the prosecutions of Mr McElligot because his was the only case in which there were said to be some possible future consequences involved in any consideration of the lawfulness or otherwise of the impugned directions.On 18 December 2021 he was issued with an infringement notice on the basis that he “failed to comply with public health direction given under s 362B”. He deposed to that fine being for non-compliance with the Second Social Measures Direction, but that was wrong because that direction was only made on 24 December 2021 so the fine could only have been made in relation to non-compliance with the First Social Measures Direction because that direction was effective from 17 December 2021. The validity of the First Social Measures Direction is not challenged in the Hunt proceeding. Nor is the decision to issue the fines.It appears that Mr McElligot also faces two charges for contravention of s 362J by failing to comply with directions given by emergency officers pursuant to s 362G of the PHA. However the validity of such directions given by emergency officers is not challenged in the Hunt proceeding.
As to the tenth applicant:
(a)An affidavit by Mr Daithi Jude Spalding sworn 4 March 2022 was filed.
(b)Mr Spalding conducted a business known as the Slap and Pickle Smokehouse.
(c)He did not want to be vaccinated, and listed the same reasons as had Mr Jones.
(d)The Social Measures Directions affected Mr Spalding’s business directly as he was an unvaccinated person who owned and operated a business, activity or undertaking as listed in schedule 1 to the Social Measures Directions as a hospitality venue.
(e)Mr Spalding interacted with enforcement authorities in relation to the Social Measures Directions. On 19 December 2021 police visited the business to check on his vaccination status. On 20 December 2021, Mr Spalding closed the business hoping that mandatory vaccination requirements would be removed in the new year.
(f)Mr Spalding’s business became a takeaway only business which had reduced trade considerably, lowered foot traffic and reduced staff retention.
(g)The Social Measures Directions:
(i)prevented Mr Spalding from entering the premises of his business;
(ii)prevented Mr Spalding from hiring or retaining staff who were not fully vaccinated;
(iii)prevented Mr Spalding from allowing persons to visit, enter or remain in the business who were not fully vaccinated;
(iv)required Mr Spalding to treat staff and visitors differently based on their vaccination status;
(v)adversely affected the earning potential of the business because it became a takeaway only business which had reduced trade considerably, lowered foot traffic and reduced staff retention;
(vi)operated unfairly on Mr Spalding’s business in comparison with others; and
(vii)restricted the way Mr Spalding could operate the business.
(a)An affidavit by Mr Jake Pelling sworn 28 February 2022 was filed.
(b)Mr Pelling was the director of the eleventh applicant, which conducted a business known as the Billabong Kuranda.
(c)He did not want to be vaccinated, and listed the same reasons as had Mr Jones.
(d)The Social Measures Directions affected Mr Spelling’s business directly as he owned and operated a business, activity or undertaking as listed in schedule 1 to the Social Measures Directions as a hospitality venue hosting wedding receptions and a cafe.
(e)The Social Measures Directions:
(i)required Mr Pelling to treat staff and visitors differently based on their vaccination status.
(ii)adversely affected the earning potential of the business by reducing turnover significantly;
(iii)operated unfairly on Mr Pelling’s business in comparison with others; and
(iv)restricted the way Mr Pelling could operate the business.
(a)An affidavit by Ms Annika Marie Roberts sworn 28 February 2022 was filed.
(b)Ms Roberts was the owner and director of the twelfth applicant, which conducted a business known as Bambino Espresso.
(c)She did not want to be vaccinated. She listed the same reasons as had Mr Jones and two further reasons:
(i)She had suffered from allergic reactions to antibiotics, inflammatory responses to various medications and to her nervous system. She was worried of suffering a reaction on taking a dose of a COVID-19 vaccine.
(ii)She had COVID-19 and therefore had natural antibodies against the virus. Based on her research, she believed that scientific data showed that infection initiated antibodies produced longer lasting immunity and that vaccination should be delayed or may not be necessary after contracting COVID-19 infection.
(d)The Social Measures Directions affected Ms Roberts’ business directly as she was an unvaccinated person who owned and operated a business, activity or undertaking as listed in schedule 1C to the Social Measures Directions as a takeaway shop.
(e)Ms Roberts interacted with enforcement authorities in relation to the Social Measures Directions. On 18 December 2021, the police initially restricted the business from operating as takeaway only, but then on the next day stated that it could resume trading so long as it complied with the Second Social Measures Direction.
(f)The Social Measures Directions:
(i)prevented Ms Roberts from entering the premises of her business;
(ii)prevented Ms Roberts from hiring or retaining staff who were not fully vaccinated;
(iii)prevented Ms Roberts from allowing persons to visit, enter or remain in the business who were not fully vaccinated;
(iv)required Ms Roberts to treat staff and visitors differently based on their vaccination status;
(v)adversely affected the earning potential of the business by requiring it to be operated as a takeaway shop instead of trading as a café seating 60 patrons and because Ms Roberts was forced to cancel bookings and reduce hours due to difficulty finding staff and inability to employ unvaccinated staff;
(vi)operated unfairly on Ms Roberts’ business in comparison with others; and
(vii)restricted the way Ms Roberts could operate the business.
The Ishiyama proceeding
As it was with the Hunt proceeding, it is appropriate to record in a little more detail the nature of the relief claimed by the Ishiyama applicants, the grounds on which the relief was claimed and the matters established by the evidence relied on by the Ishiyama applicants.
In proceeding BS 367/22 the Ishiyama applicants challenged both the First High-Risk Direction and the Second High-Risk Direction (collectively, the High-Risk Directions). As did the Hunt applicants, the Ishiyama applicants advanced their application “… pursuant to section 20, or alternatively section 43 of [the JRA], or alternatively pursuant to section 10 of [the CPA], or alternatively pursuant to the Court’s inherent jurisdiction to review, and additionally pursuant to section 59 of [the HRA].”
The proceeding named seven applicants and claimed that at all material times collectively they were workers employed in or providing services in High-Risk settings as defined in the Directions, in the State of Queensland and that they represented a subset of Workers employed in a High-Risk setting. They contended that they were teachers who did not obtain a COVID-19 vaccination and were by reason of the High-Risk Directions prevented from entering, remaining or working in their place of employment.
The Ishiyama applicants contended that they were aggrieved because of the High-Risk Directions on the same bases with respect to the High-Risk Directions as had been advanced by the Hunt applicants in relation to the Social Measures Directions, as to which see [45] above.
The Ishiyama applicants pleaded further detail in relation to each of those grounds in the body of their application. Before this Court the Ishiyama applicants also sought to justify their standing by reference only to the alleged infringement of their common law rights, their various human rights under the HRA, and the contention that s 362B was contrary to the Commonwealth Constitution and invalid, and, as it was with the Hunt applicants, it is necessary only to focus on summarising the case pleaded in relation to those grounds.
The Ishiyama applicants pleaded that they had not obtained a COVID-19 vaccination and accordingly they had not complied with either the First High-Risk Direction or the Second High-Risk Direction. Having regard to their pleading of the effect of the High-Risk Directions, it would follow that their pleaded case was that they were, by reason of the High-Risk Directions, prevented from entering, remaining or working in High-Risk settings unless they comply with the COVID-19 vaccination requirements.
Amongst other matters pleaded in support of the proposition that the High-Risk Directions were not authorised by the enactment pursuant to which each was purportedly made, the effect of the Ishiyama applicants’ pleading was to assert, amongst other things, the same propositions in relation to the High-Risk Directions as had been advanced by the Hunt applicants in relation to the Social Measures Directions, as to which see [48] above.
The standard of appellate review of a s 48 summary dismissal order
“48****Power of the court to stay or dismiss applications in certain circumstances
(1)The court may stay or dismiss an application under section 20, 21, 22 or 43 or a claim for relief in such an application, if the court considers that—
(a)it would be inappropriate—
(i)for proceedings in relation to the application or claim to be continued; or
(ii)to grant the application or claim; or
(b)no reasonable basis for the application or claim is disclosed; or
(c)the application or claim is frivolous or vexatious; or
(d)the application or claim is an abuse of the process of the court.
(2)A power of the court under this section—
(a)must be exercised by order; and
(b)may be exercised at any time in the relevant proceeding but, in relation to the power to dismiss an application, the court must try to ensure that any exercise of the power happens at the earliest appropriate time.
(3)The court may make an order under this section—
(a)of its own motion; or
(b)on an application by a party to the proceeding.
(4)The court may receive evidence on the hearing of an application for an order under this section.
(5)An appeal may be brought from an order under this section only with the leave of the Court of Appeal.”
Pursuant to s 48(5), an appeal may be brought from the order made by the primary judge only with the leave of this Court. As previously mentioned, leave was opposed in the present case, but only on the basis that there was no error to be corrected. Accordingly, the question of leave does not require any particular or separate analysis.
However, when considering whether there was error to be corrected, a question arises as to what is the standard of appellate review which should be applied in determining whether there is an error to be corrected. Should the question be examined by the application of the Warren v Coombes13 correctness standard or the House v The King14 standard? The line of demarcation between the two standards of appellate review has been the subject of consideration in two recent decisions of the High Court of Australia – namely GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore15 and Moore (a pseudonym) v The King.16
In GLJ, the High Court determined that the correctness standard applied to the question whether to grant a permanent stay of proceedings on the ground that a trial would be necessarily unfair or so unfair or oppressive to the defendant as to constitute an abuse of process. Kiefel CJ, Gageler and Jagot JJ made the following observations (Steward and Gleeson JJ separately agreeing generally with their Honours on the appellate standard of review):17
“The reasoning in House v The King applies to judicial decisions involving an exercise of discretion. It has been said that the concept of a ‘discretion’ is ‘apt to create a legal category of indeterminate reference’, but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for ‘value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right’. The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the ‘correctness standard’ applies) was identified as that between questions lending ‘themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions’ in which event ‘it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance’, and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.” (Footnotes omitted)
“The basis for intervention identified in House v The King was expressed to be dependent upon the subject matter of the appeal, being the exercise of a judicial ‘discretion’. House v The King was an appeal against the imposition of a sentence of three months imprisonment for an offence under the Bankruptcy Act 1924 (Cth). While what constitutes a ‘discretionary decision’ in this context can be ambiguous, in essence it refers to the circumstance where the decision maker is allowed ‘some latitude as to the choice of the decision to be made’. A determination of which standard of review is applicable does not depend on whether the reasoning to be applied is evaluative or in respect of which reasonable minds may differ. Instead, the determination turns on whether the legal criterion to be applied ‘demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies’.” (Footnotes omitted)
What were the legal criteria to be applied by the primary judge?
The respondents before the primary judge had submitted that because any interest the applicants might have had when they commenced the substantive proceedings had long since ceased to exist, their applications ought to be dismissed on grounds that they disclosed “no reasonable basis” (s 48(1)(b) JRA), were “frivolous or vexatious” (s 48(1)(c)), and/or were “an abuse of process” (s 48(1)(d)). The primary judge, however, seemed to address the matter under s 48(1)(a), when he recorded that s 48 provided that the court may stay or dismiss an application under any of ss 20, 21, 22 or 43 if the court considered that it would be “inappropriate for those proceedings to be continued”.
As argued, the application of these legal criteria required the primary judge to determine whether the applicants lacked standing as contended and, if not, whether that justified the conclusion that the particular criterion was met. Whether the primary judge exercised the power to dismiss would be dictated by his conclusion as to whether the particular criterion had been met.18 The proper application of each criterion specified in ss 48(1)(a), 48(1)(b), 48(1)(c) and 48(1)(d) demanded an evaluative judgment which would give rise to a unique outcome (namely whether the relevant text of the statute had, on its proper construction, been met), an outcome to which there was only one legally permissible answer. Accordingly, the applicable standard of appellate review is the “correctness standard” as explained in Warren v Coombes,19 in which the High Court stated:
“Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.”
Did the applicants have standing to pursue declaratory relief?
The inherent jurisdiction and the jurisdiction under s 10 of the CPA
“The relatively recent observation that a superior court has ‘inherent power’ to make a declaratory order cannot be taken to contradict the historical fact that the power to declare the existence or non-existence of a legal right or obligation is statutory in origin. The power was unknown to a common law court. The power was also unknown to a court administering equity other than as prefatory to the making of another order capable of enforcement by execution or in certain proceedings against the Crown. The power came to be conferred incrementally by statute on the English Court of Chancery in the 1850s and on the English High Court of Justice in the 1870s. The Supreme Court of New South Wales lacked general power to declare the existence or non-existence of a legal right or obligation before that power was conferred by statute in 1965.”21 (Footnotes omitted)
“The court may hear an application for a declaratory order only and may make a declaratory order without granting any relief as a result of making the order.”
“It is neither possible nor desirable to fetter the broad discretion given by s. 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd, should in general be satisfied before the discretion is exercised in favour of making a declaration:
‘The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought.’” (Footnotes omitted)
“Though the expression of standing has been variously in terms of a ‘sufficient interest’, a ‘sufficient material interest’, a ‘special interest’ or a ‘real interest’, the conception of standing developed through that body of case law has been consistent. That conception of standing has involved recognition that a person who does not claim to have a legal right or equitable interest to be vindicated by a declaration or other order that would resolve a controversy about a right or obligation may yet have a material interest in seeking the order. In this context, an interest will be ‘material’ if the person ‘is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if [the order is made] or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if [the order is not made]’. Depending on the totality of the circumstances, the material interest that the person has in seeking the order may be sufficient to justify a court entertaining the proceeding in which the order is sought.
In Robinson, Mason J observed that ‘cases are infinitely various’ and that ‘what is a sufficient interest in one case may be less than sufficient in another’. In Onus, Brennan J added to that observation that the sufficiency of the interest of a person in a particular case ‘must be a question of degree, but not a question of discretion’ and that in answering that question of degree it is appropriate to consider both whether the interest is ‘sufficient to assure that “concrete adverseness which sharpens the presentation of issues” falling for determination’ and whether the interest is ‘so distinctive’ as to avoid a multiplicity of proceedings.”24 (Footnotes omitted)
In the present case, the respondents contended that the Court has no jurisdiction to declare the fact of past unlawful infringement of human or common law rights by executive action unless there are some other asserted foreseeable legal consequences of the declaration. The correctness of that contention was essentially the issue on which standing turned.
In Unions NSW v New South Wales, the High Court considered a challenge to the constitutional validity of a statutory cap on electoral expenditure for a State election campaign on the grounds that the relevant parts of the statute impermissibly burdened the implied freedom of political communication. The relevant section was repealed before the hearing. The plurality judgment of Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ concluded that the plaintiffs did not have standing, observing:
“The plaintiffs have not demonstrated that they continue to have standing, or a real or sufficient interest, to seek a declaration as to the invalidity of s 35. The plaintiffs cannot and do not assert that any of their rights, duties or legal interests have been infringed by the past application of s 35. The plaintiffs are not the subject of enforcement action for any past breach of s 35, nor do they claim to have contravened s 35 in the past. Nor do they assert that a declaration of invalidity would assist them in vindicating any right, duty or legal interest. The plaintiffs assert invalidity solely by reference to the implied freedom of political communication. That implied freedom is not a personal right; it is a freedom from unjustified legislative interference.” 25
“The past infringement of certain personal rights or interests of a plaintiff, such as reputation and liberty, may also be sufficient for seeking declaratory relief even where there are no other asserted legal consequences.”26
The two cases directly cited27 in support of that proposition were Ainsworth v Criminal Justice Commission28 and Plaintiff M68/2015 v Minister for Immigration and Border Protection.29
In Ainsworth v Criminal Justice Commission30 the High Court held that persons about whom recommendations had been made in a Criminal Justice Commission report had a real interest in obtaining a declaration that there had been a failure to observe procedural fairness because of the harm caused to their business or commercial reputation. The passages from Ainsworth cited in Unions NSW v New South Wales included:from the plurality judgment of Mason CJ and Dawson, Toohey and Gaudron JJ (footnotes omitted):
“It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which ‘[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.’ However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have ‘a real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties’.
The present case involves no mere hypothetical question. At all stages there has been a controversy as to the Commission’s duty of fairness. A report has been made and delivered under s. 2.18 of the Act. That report has already had practical consequences for the appellants’ reputations. For all that is known, those consequences may extend well into the future. It is appropriate that a declaration be made in terms indicating that the appellants were denied natural justice. That may redress some of the harm done.”
from the judgment of Brennan J:
“In Chief Constable of North Wales Police v. Evans, where a Chief Constable had given a police officer the option of resigning or having his services terminated and the Chief Constable had failed to give the officer an opportunity to deal with the allegations made against him, the House of Lords made a declaration to protect the interests of the officer who had resigned so far as those interests were susceptible of protection by declaration. Lord Brightman observed that –
‘it would, to my mind, be regrettable if a litigant who establishes that he has been legally wronged, and particularly in so important a matter as the pursuit of his chosen profession, has to be sent away from a court of justice empty-handed save for an order for the recoupment of the expense to which he has been put in establishing a barren victory.’
I respectfully agree. Where an official entity, purportedly exercising a statutory power or performing a statutory function which requires it to observe the rules of natural justice, publishes a report damaging to a person’s reputation without having given that person an opportunity to be heard on the matter, prima facie that person is entitled to a declaration that the report, so far as it damages his or her reputation, has been produced in breach of the entity’s duty to observe the rules of natural justice…”
“It is submitted by the first and second defendants, being the Minister and the Commonwealth (hereinafter together referred to as ‘the Commonwealth’), that these proceedings concern past conduct and would have no further consequences for the plaintiff beyond the making of the declaration. The plaintiff does not seek damages for her wrongful detention. Nevertheless the declaration sought by the plaintiff would resolve the question as to the lawfulness of the Commonwealth’s conduct with respect to the plaintiff’s detention and whether such conduct was authorised by Commonwealth law. This is not a hypothetical question. It will determine the question whether the Commonwealth is at liberty to repeat that conduct if things change on Nauru and it is proposed, once again, to detain the plaintiff at the Centre.”32
from the judgment of Keane J:
“A party who has been detained in custody has standing to question the lawfulness of that detention even though that party has not chosen to pursue a claim for damages for false imprisonment. The interference with the liberty of that person is sufficient to confer standing to seek a declaration of the legal position from a court even though no other legal consequences are said to attend the case. And even though it may be unlikely, as a practical matter, that the arrangements under which the detention was effected will be applied in the future, it is difficult not to be ‘impressed with the view that really what is at issue is whether what has been done can be repeated’.”33
The applicants seek to rely on the recognition in the plurality judgment in Unions NSW v New South Wales that the past infringement of their particular identified personal rights or interests may be sufficient to give the applicants standing to seek declaratory relief even where there are no other asserted legal consequences. I agree.34 The applicants have asserted a real interest in raising those questions because if they can make good their factual case they will have asserted a basis for complaint which is different from that of the public at large. Notably, it does not matter that the impact of which the corporate applicants in the Hunt proceeding complain is the adverse impact on their commercial and business interests which occurs indirectly by virtue of the direct impact of the impugned directions on their human employees or agents.35 It is also significant that the applicants have been able to secure proper contradictors to their cases. Moreover, the revocation of the directions and the expiry of Part 7 of the PHA does not seem to me to render their case entirely hypothetical. Resolution of the questions raised will determine whether what has been done can be repeated, even though the complete repetition of what has been done might require the legislative re-introduction of the relevant PHA sections, which, if done, would not be justiciable except on constitutional grounds.
In this Court the applicants also submitted that the HRA has influenced the test for standing because it created statutory human rights and past infringement of those human rights was a sufficient basis to justify their seeking declaratory relief even where there are no other asserted legal consequences.36 Based on the plurality judgment in Unions NSW v New South Wales, and at least for the applicants who are natural persons (who, unlike the corporate applicants, actually have human rights under the HRA), I accept that contention.
I observe however that there may be further support in the HRA itself which provides another reason for reaching that conclusion, especially when one appreciates that the so-called inherent jurisdiction is to be regarded as statutory in origin and, accordingly, necessarily subject to the provisions of s 48 of the HRA. A helpful way to think about the impact of the section was articulated by French CJ in Momcilovic v The Queen (2011) 245 CLR 1 in relation to the Victorian equivalent of s 48, namely s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic):37
“It requires statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law. Section 32(1) applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application.”
Section 10 of the CPA confers jurisdiction on the Supreme Court to hear an application for a declaratory order only and permits it to make a declaratory order without granting any relief as a result of making the declaratory order. The requirement that a plaintiff must have a “sufficient interest”, a “sufficient material interest”, or a “special interest” is an implication which the plurality judgment in Ainsworth explained derives from “the considerations which mark out the boundaries of judicial power.”38 After the introduction of the HRA, the statutory conferral of jurisdiction to hear an application for a declaratory order only must be construed in a context which includes the statutory recognition that natural persons have the human rights set out in the HRA. If, as Unions NSW v New South Wales tells us it is, it is open to construe the statutory conferral of jurisdiction to permit a plaintiff to seek declaratory relief in respect of past infringement of certain common law personal rights or interests of a plaintiff, even where there are no other asserted legal consequences, it should also be open to make the same constructional choice in respect of past infringement of the human rights set out in the HRA. There appears to be no reason why the conferral of jurisdiction should be more limited in relation to statutory human rights than it is in relation to the common law personal rights in which such declarations are possible. To conclude otherwise, would appear to be contrary to s 48 of the HRA.
The respondents’ contention that the Court has no jurisdiction to declare the fact of past unlawful infringement by executive action of the common law and human rights which the applicants assert unless there are some other asserted foreseeable legal consequences of the declaration, must be rejected.
Standing under the JRA and the HRA
Insofar as the Hunt and Ishiyama applications were each advanced as an application for a statutory order of review, it was necessary for the applicants to demonstrate that they were persons aggrieved by a decision to which the JRA applied. As the primary judge found, in Hunt v Gerrard39 the Court of Appeal held that the chief health officer’s decisions to issue public health directions under s 362B of the PHA were properly characterised as decisions of a legislative, rather than an administrative, character. His Honour correctly found that s 20 of the JRA was not available to the applicants.
It has already been explained that claims for non-JRA relief may be advanced in an application for JRA relief under s 43. Section 44 entitles a person make an application for review if the person’s interests are, or would be, adversely affected in or by the matter to which the application relates. The respondents submitted that once the relevant directions had been revoked and Chapter 8 Part 7A of the PHA had expired the applicants ceased to have standing under the JRA. The appellants argued that continuity of standing was unnecessary and that it sufficed to demonstrate compliance with s 44 if they had standing within the meaning of s 44 when they commenced the application.
In another case, it might be necessary to resolve that question. However, s 43(3) of the JRA provides that even if the Court considers that the relief sought should not be granted under an application for review, the Court may require the non-JRA claims to proceed as if they had been started in a non-JRA way. Given my conclusion as to the standing under the inherent jurisdiction, it becomes unnecessary to resolve the question whether there would be standing for JRA relief if that relief were considered alone.
It is not necessary separately to consider the suggested jurisdiction under ss 58 or 59 of the HRA because that jurisdiction will exist once the conclusion is reached that there is jurisdiction under some other basis: see Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623 at [268] to [275]. If there is an available right to seek relief or remedy in respect of an act or decision of a public entity on the ground that it was unlawful other than because of s 58 of the HRA, that will satisfy the condition. It will then follow that there is jurisdiction under s 59.
Should there nevertheless be an order for summary dismissal under s 48?
Did the primary judge err by exercising power under s 48 in relation to claims that were not made under the JRA?
The appellants argued that the primary judge erred in exercising the summary dismissal power to dismiss claims that were not made under the JRA. Their contention was that the summary dismissal power simply did not apply to the non-JRA claims which were advanced in their application.
That argument must be rejected. As already explained, s 43 of the JRA and Chapter 14 Part 4 of the Uniform Civil Procedure Rules combine to permit claims for non-JRA relief to be advanced in an application for JRA relief and to that end require a party seeking to do so to make necessary modifications to the approved forms. Section 43(3) empowers a Court to require the non-JRA claims to proceed as if they had been started in a non-JRA way. Section 47 empowers the Court considering such an application to grant relief in respect of the non-JRA claims regardless of the fate of the JRA claims.
The plain contemplation of s 48 is that it is a power to deal with non-JRA claims which have been included in an application for a statutory order of review or an application for any of the relief mentioned in s 43. That contemplation is made explicit in the words “the court may stay or dismiss an application under section 20, 21, 22 or 43 or a claim for relief in such an application …” (emphasis added).
Did the primary judge err by failing to apply a very high threshold to a summary dismissal application?
Did the primary judge err by failing to appreciate that once the Attorney-General had and the Commission had become parties the question of the standing of the applicants had become irrelevant?
“… in deciding that the proceedings ‘must be dismissed pursuant to s 48 of the JRA’ (J[75]), the Court erroneously assumed that s 48(1) treated any loss of the Appellants’ standing as a threshold barrier to the success of the proceedings. But that did not follow. The Attorney-General, acting on Queensland’s behalf in proceedings that impugned important aspects of the State’s public health regime, and the QHRC, a statutory authority with the function of promoting understanding and acceptance of the HRA (HRA, s 61(d)), had each exercised a statutory right of intervention in each proceeding. Importantly, the QHRC supported parts of the Appellants’ case that challenged the validity of the later Direction. No party had asserted, or could assert, that those entities had an insufficient interest to prosecute the proceedings to their conclusion.
In Williams v Commonwealth (No 1) (2012) 248 CLR 156… the High Court concluded that the threshold questions of standing raised by the defendant (the Commonwealth) could be ‘put to one side’ as various States had intervened in the proceedings and undoubtedly had a ‘sufficient interest in the observance by the Commonwealth of the bounds of [Commonwealth] executive power ... to give [them] standing’. For broadly the same reasons, as at the date the primary judge heard the dismissal applications, the intervention of the Attorney-General and the QHRC had created a real controversy between parties with a real interest in the outcome of the proceedings – independently of the Appellants’ standing in the matter at that time. It was wrong for the Court to dismiss the proceedings on a summary basis in those circumstances.” (Footnotes omitted)
Should the dismissal be affirmed on the bases raised in the notices of contention?
Persons in the position of the applicants who have advanced in an application under the JRA claims for relief under the JRA and claims for non-JRA relief have rendered themselves subject to an exercise of power under s 48. Even if standing is not in issue, a Court has nevertheless broad power to order summary dismissal under s 48(1)(a).
Amongst other things, the Court in Brisbane City Child Care Pty Ltd v Kadell went on to observe of the power in s 48(1)(a):
“… The test of ‘inappropriate’ makes the power under s 48(1)(a) ‘a broad one’. It is not necessary for the purpose of this application to identify all the categories of cases to which it could apply. It is sufficient to say that it will include the category of case where there may have been an error, but the circumstances in which the decision was made and/or the subsequent events or the circumstances of the parties’ ongoing relationship do not warrant addressing in a proceeding under the Act whether there was error by the decision-maker.”40
In another case, it might well be an unremarkable exercise of power under s 48(1)(a) for a judge to conclude that if events in the parties’ ongoing relationship rendered their dispute moot or the underlying question hypothetical, it would not be appropriate for the proceeding to continue. In the present case, and for two reasons, I would not reach that conclusion.
First, for reasons earlier advanced, the applicants did have standing, both under the inherent jurisdiction of the Court and under the JRA. And, it would then follow, the applicants did have standing to seek orders under ss 58 and 59 of the HRA.
Second, apart from the rejected proposition as to standing, there is no other good reason to deny the applicants their day in Court in their attempt to establish the merits of their claims for declaratory orders in relation to alleged past contraventions. To the contrary, there is a strong public interest in determining whether or not there is any merit in their claims, not least for reasons similar to those advanced in the passages quoted from Plaintiff M68/2015 v Minister for Immigration and Border Protection at [100] above. That conclusion is supported by the fact that the Commission was prepared to intervene in support of the case to advance the arguments which it was prepared to advance.
A possible exception to that proposition would be the position of those of the Hunt applicants who did not file any affidavits in support of their claims, as they had been required to do. In light of the fact that the Hunt proceeding will continue in respect of the other applicants in that proceeding, I would not presently exercise the summary dismissal jurisdiction only in relation to those applicants who had not filed affidavits. If, subsequent to the disposition of the present case, those applicants continue not to comply with court directions, then the question of the dismissal of their claims can be addressed by the judge in the trial division charged with managing the continuation of the proceeding.
It remains to note only that during the course of the hearing before this Court a belated argument was advanced that an exercise of power under s 48 could also be justified by making an adverse assessment of the legal and factual merits of the case revealed in the affidavit material filed by the Hunt and Ishiyama applicants. That was not the basis on which the case was advanced before the primary judge. Nor was it the basis on which the primary judge dealt with the case. Nor was it an argument advanced by either notice of contention. I would not embark upon such an assessment for the first time on appeal.
Costs
Conclusion
(a)The applicants have leave to appeal.
(b)The appeal is allowed.
(c)The respondents must pay the appellants’ costs of the appeal.
(d)The orders made by the primary judge on 27 February 2024 in proceeding BS 966/22 are set aside and in lieu thereof it is ordered that –
(i)the respondents’ summary dismissal application is dismissed; and
(ii)the respondents must pay the applicants’ costs of the application.
(a)The applicants have leave to appeal.
(b)The appeal is allowed.
(c)The respondents must pay the appellants’ costs of the appeal.
(d)The orders made by the primary judge on 27 February 2024 in proceeding BS 367/22 are set aside and in lieu thereof it is ordered that –
(i)the respondents’ summary dismissal application is dismissed; and
(ii)the respondents must pay the applicants’ costs of the application.
BROWN JA: I agree with the orders proposed by his Honour Justice Bond. I also agree with his Honour’s reasons. However, to the extent that his Honour has determined that a past infringement of a human right without asserted legal consequences would create a sufficient interest to seek a declaration on a stand alone basis under s 10 of the CPA, I consider it is unnecessary in the present case to express a position in that regard. Given that, as Justice Bond has determined, the appellants have standing to seek declarations for past infringements of their identified common law personal rights or interests, even in the absence of other asserted legal consequences, the applicants have standing to seek declarations for past infringements of human rights pursuant to s 59(1) of the HRA.
While there is merit in Justice Bond’s analysis that s 48 of the HRA would operate when construing s 10 of the CPA, to extend the jurisdiction to hear an application for a declaratory order only on the basis of a past infringement of human rights, where there are no asserted consequences, I do not consider that the legal position is clear. While s 11 of the HRA provides that all individuals in Queensland have human rights, it has been held in two single judge decisions of this Court that the HRA does not itself create legal rights that have free-standing operation.41 That view is supported by ss 58 and 59 of the HRA. Section 58 makes it unlawful for a public entity to act or make a decision in a way that is not compatible with human rights or to make a decision which fails to give proper consideration to human rights relevant to the decision. Section 59 of the HRA provides that a person may seek relief or remedy on the ground of unlawfulness arising under s 58 “if a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of section 58 unlawful.” Section 59(5) provides that a person “may seek relief or remedy on a ground of unlawfulness arising under section 58 only under this section.” Those matters could potentially suggest a different conclusion may be reached as to whether s 48 HRA would necessarily be interpreted in a way that would extend the application of s 10 of the CPA so that a past infringement of a human right under the HRA with no asserted legal consequences would constitute a “sufficient interest” from a past infringement of a common law personal right or interest. However, given the fact that the appellants have established standing and s 59 of the HRA applies, the present case is not, in my view, the appropriate vehicle to finally determine the application of s 10 of the CPA.
RYAN J: I agree with the orders proposed by his Honour Justice Bond and with his Honour’s reasons, but like her Honour Justice Brown, and for the reasons given by her Honour, I do not consider it necessary to determine the application of s 10 of the CPA in this case.
The chief health officer was defined in schedule 2 of the PHA by reference to the Hospital and Health Boards Act 2011 (Qld). The role was created pursuant to s 52 of that Act. The occupier of the role must be a medical practitioner employed as a public service officer or as a health service employee. ↩
Section 315 of the PHA defined the term “emergency officer” as a person appointed under Chapter 8 as either emergency officer (general) or emergency officer (medical). Chapter 8 Part 5 of the PHA provided the mechanism for the appointment of both such categories. ↩
Unions NSW v New South Wales (No 3) (2023) 97 ALJR 150 at [21]-[22]. ↩
In BS 11254/21 the costs order related only to the third respondent, the chief health officer. ↩
His Honour followed authority binding on him to conclude that it was not open to the applicants to obtain a statutory order of review because the impugned decisions could not be regarded as decisions of an administrative nature. ↩
Johnston v Carroll; Ishiyama v Aitken; Hunt v Gerrard [2024] QSC 6 at [10]. ↩
The matters recorded under this heading essentially repeat the findings made by the primary judge: see Johnston v Carroll; Ishiyama v Aitken; Hunt v Gerrard [2024] QSC 6 at [4]-[7], [9] and [18]. ↩
The Court was informed that the parties had complied with s 78B of the Judiciary Act 1903 (Cth) and that only the Attorney-General for Queensland sought to intervene. ↩
This proposition should be construed as a proposition about the proper construction of the section, in light of the principle of legality.
(1979) 142 CLR 531
(1972) 127 CLR 421
(2023) 97 ALJR 857
(2022) 276 CLR 519
(1936) 55 CLR 499
(2016) 344 ALR 101
(2024) 98 ALJR 1119
(2016) 257 CLR 42
(2023) 277 CLR 627
(2011) 245 CLR 1
(2012) 248 CLR 156
(2023) 97 ALJR 150
(2018) 264 CLR 541
(2025) 99 ALJR 474
(1992) 175 CLR 564
(2016) 259 CLR 339
(1996) 68 FCR 406
(2010) 243 CLR 319
(2011) 242 CLR 421
(2014) 254 CLR 394
(2024) 98 ALJR 1163
Leave to appeal granted in both proceedings; both appeals allowed; the primary judge’s orders set aside; the respondents’ summary dismissal applications dismissed; respondents ordered to pay the applicants’ costs of the appeals and the summary dismissal applications. [125]-[126]
On 23 March 2022, pursuant to s 50 of the HRA, the Attorney-General for Queensland intervened in, and thus became a party to, each proceeding. On 24 March 2022, the Queensland Human Rights Commission took the same step in each proceeding, and also became a party, pursuant to s 51 of the HRA. The Commission supported the applicants’ position on core components of their claims, contending that the direction impugned in the Ishiyama proceeding was beyond power, both because of the limits it imposed on human rights were not demonstrably justified and because it did not comply with s 58(1) of the HRA.
After the applications had been filed, each of the impugned directions was revoked with the consequence that none of the directions had any further effect on any of the applicants. Further, Part 7A of the PHA expired pursuant to a statutory sunset clause with the result that the statutory source of power to make such directions no longer existed. Notwithstanding the revocation of the directions and the expiry of Part 7A, in each proceeding the applications continued to seek both declaratory relief and orders setting aside and quashing the impugned directions.
In early 2023 the respondents filed applications in each proceeding pursuant to s 48(1) of the JRA seeking orders summarily dismissing the entirety of the application. The Attorney-General supported them in those applications.
The summary dismissal arguments were not founded on the legal or factual merits of the applicants’ arguments as to the invalidity of the directions which they impugned. Rather the core arguments advanced in support of the summary dismissal were that the applicants:were required to demonstrate “continuous” standing;had lost any standing they may have had due to the revocation of the directions;were no longer adversely affected by the directions;did not have a special interest in pursuing the applications;would incur no foreseeable consequence if declarations were made given the revocation; anddid not have standing to challenge the validity of the decisions which may result in criminal proceedings because there were no criminal proceedings presently being prosecuted.
For their part, the core arguments against summary dismissal advanced by the applicants were –it was sufficient to establish the necessary standing to seek declaratory relief if an applicant complained of past infringement by unlawful executive action of their common law and human rights, without needing to show any further consequence; andthe applicants did not have to show that a criminal prosecution had commenced because it was enough to show that there was evidence before the court that the applicants had engaged in conduct which could result in criminal prosecution.
The Commission supported the first of those arguments, contending:
Insofar as the summary dismissal orders were made pursuant to s 48(1) of the JRA the applicants needed leave to appeal pursuant to s 48(5) of that Act. Both groups of applicants belatedly sought such leave. The grant of leave was opposed, but only on the basis that there was no error to be corrected. Accordingly, the question of leave does not require any particular or separate analysis. The focus of the appeal must be on the question whether there was error to be corrected.
Having regard to the way in which arguments were advanced on appeal, the dispositive questions were:whether the primary judge erred in concluding that the applicants had no standing to seek declaratory relief concerning alleged past breaches of their common law rights or their rights under the HRA;if so, whether the primary judge’s decision should nevertheless be affirmed on the grounds posed by the notices of contention; andwhether the primary judge erred in awarding costs to the respondents from 4 February 2023.
For reasons which follow, I conclude:The primary judge erred in concluding that the applicants did not have standing under the inherent jurisdiction of the Court.If the applicants had standing on that basis, it would be inappropriate to make orders of summary dismissal. The applicants should not be denied the opportunity to have their claims tried.There is no reason why costs in this Court and below should not follow the event.
In each proceeding in this Court, orders should be made granting leave to appeal pursuant to s 48(5) of the JRA, allowing the appeal, setting aside the orders made below and substituting orders dismissing the summary dismissal application and requiring the respondents to pay the applicants’ costs of the application and of the appeal.
Amongst other matters pleaded in support of the proposition that the Social Measures Directions were not authorised by the enactment pursuant to which each was purportedly made, the effect of the Hunt applicants’ pleading was to assert, amongst other things, the following propositions:
In relation to the claim of constitutional invalidity the Ishiyama applicants was the same as that which had been advanced by the Hunt applicants.
The Ishiyama applicants claimed the same relief in relation to the High-Risk directions as had been claimed by the Hunt applicants in relation to the Social Measures Directions, as to which see [50] above.
Each of the 7 Ishiyama applicants was a natural person. In January, February and March 2022, and in apparent compliance with interlocutory orders made to file and serve affidavit material on which they intended to rely for the hearing of their application for final relief, each of the Ishiyama applicants filed an affidavit or affidavits in which they deposed to facts in support of their application.
As to Ms Cherie Jean Ishiyama, the first applicant:Affidavits from Ms Ishiyama sworn on 11 January 2022 and 9 and 21 February 2022 were filed.Ms Ishiyama had been a teacher in permanent employment.On 30 November 2021, her employer told staff that the Premier had made vaccines mandatory for all education staff in 2022. On 1 December 2021 she was told that she would lose her employment or be suspended without pay if she did not get vaccinated.She did not want to be vaccinated. She listed reasons similar to those which Mr Jones had stated in the Hunt applicants’ proceeding.In January 2022 she communicated her objection to becoming vaccinated to her employer and her employment was initially suspended and then terminated. Her understanding was that occurred because she did not receive the COVID-19 vaccine.
As to Mr Robert William Wylie, the second applicant:Affidavits from Mr Wylie sworn on 13 January 2022, 4 and 21 February 2022 were filed.Mr Wylie was a teacher in permanent employment.In November and December 2021, he received from his employer similar communications to Ms Ishiyama concerning the need for mandatory vaccination.He was concerned about the risks of vaccination and asked to be provided with an appropriate risk assessment concerning the taking of the vaccination but was not provided with one. He felt as though he was being bullied and pressured into taking an experimental vaccine.In January 2022 his employer told him that he was suspended from his employment and that further disciplinary action was being considered. Mr Wylie expected to be terminated from his employment and become liable for subsequent relocation costs.Mr Wylie did not identify whether his employment had been terminated.
As to Mr Peter Grant Merrill, the third applicant:An affidavit from Mr Merrill sworn 19 February 2022 was filed.Mr Merrill was a teacher in permanent employment.In December 2021, he received from his employer similar communications to Ms Ishiyama concerning the need for mandatory vaccination.Like Mr Wylie, he sought information from his employer concerning risk assessments of taking vaccination, but was not provided with any.Mr Merrill’s affidavit thereafter contains confusing details. In one part, he deposed that in January 2022 he received his first vaccination shot and informed his employer he would be fully vaccinated by 4 February 2022. However in other parts of his affidavit he deposes to having decided not to receive the recommended vaccines. He then deposes that, on 21 January 2022, he was suspended with pay and placed into a show-cause position as to why he should not be suspended without pay.Mr Merrill did not identify whether his employment had been terminated.
As to Ms Megan Ruth Pyne, the fourth applicant:Affidavits from Ms Pyne sworn on 14 January 2022, 3 and 21 February 2022 were filed.Ms Pyne was a teacher in permanent employment.In November and December 2021, she received from her employer similar communications to Ms Ishiyama concerning the need for mandatory vaccination. She too sought information from her employer concerning risk assessments of taking vaccination, but was not provided with any.She chose not to become vaccinated.On 10 January 2022, Ms Pyne was suspended with pay from work due to not being vaccinated. She was told that further disciplinary action was being considered. She expected to be placed into a show-cause position as to why she should not be suspended without pay.Ms Pyne did not identify whether her employment had been terminated, or whether further disciplinary action was taken.
As to Ms Sarah Elizabeth Dew, the fifth applicant:An affidavit from Ms Dew sworn on 27 January 2022 was filed.Ms Dew was an early childhood educator working 4 days a week in employment in that role.On 30 November 2021 her employer told her that if she did not become fully vaccinated her employment would be suspended. She immediately went on stress leave and was awaiting further information from her employer. Her last day of paid work was 16 December 2021.She chose not to become vaccinated and believed she would lose her job because of that choice. She believed that she would be unable to finish her Diploma in Children’s Services due to her inability to complete practical placement.Ms Dew did not identify whether her employment had been terminated, or whether further disciplinary action was taken.
As to Ms Meagan Clare Curnow, the sixth applicant:Affidavits from Ms Curnow sworn on 14 January 2022 and two on 4 February 2022 were filed.Ms Curnow was a teacher in permanent employment, on maternity leave until term 2, 2022. When maternity leave ended, her intention was to return to work part time, 3 days per week.From 30 November 2021, Ms Curnow received communications concerning mandatory vaccination. She understood that she was required to be double vaccinated by 23 January 2022.She chose not to become vaccinated. She was concerned as to the lack of evidence concerning efficacy and long-term consequences of use of the vaccines as well as the effect on her breast-feeding child.In December 2021, Ms Curnow received a copy of the Department of Education’s “Covid-19 Vaccine Declaration” which she understood to mean that she would lose her job or be stood down without pay if she chose not to receive a vaccination.Ms Curnow did not identify whether her employment had been terminated, or whether further disciplinary action was taken.
As to Ms Manda Smolcic, the seventh applicant:Affidavits from Ms Smolcic sworn on 12 January 2022, 10 February 2022 and 21 February 2022 were filed.Ms Smolcic was a teacher in permanent employment in distance education.From 30 November 2021, Ms Smolcic received communications concerning mandatory vaccination from her employer.She apparently chose not to become vaccinated. She believed that vaccination might pose a health risk to her, in particular due to some health conditions she had. She was also concerned as to the lack of evidence concerning efficacy and long-term consequences of use of the vaccines. She had tried but failed to obtain an exemption certificate from a GP.She believed that if she did not become vaccinated she would be terminated by her employer.Ms Smolcic did not identify whether her employment had been terminated, or whether disciplinary action was taken.
As per previous footnote. ↩
In the application the relief was expressed in the present tense, not the past tense as expressed here, but nothing turns on that. The Hunt applicants sought to justify their standing on the basis that they could seek declarations to vindicate past unlawful infringement of their rights. It was not suggested that the present tense form of their application was inconsistent with their seeking declarations as to past infringement of their rights. ↩
The date mentioned in the affidavit was 28 January 2021, but that was an obvious typographical error. ↩
Warren v Coombes (1979) 142 CLR 531 at 551. ↩
House v The King (1936) 55 CLR 499 at 504-505. ↩
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 at [16] per Kiefel CJ, Gageler and Jagot JJ, Steward and Gleeson JJ separately agreeing generally with the majority’s view on the appellate standard of review, and in particular their Honours citing with approval Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 562-563 [46]-[49] per Gageler J and 574-575 [85]-[87] per Nettle and Gordon JJ. ↩
Moore (a pseudonym) v The King (2024) 98 ALJR 1119, per Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ at [15]. ↩
GLJ v The Trustees of the Roman Catholic Church of Lismore (2023) 97 ALJR 857 at [16] per Kiefel CJ, Gageler and Jagot JJ, at [95]-[96] (Steward J), and [161] (Gleeson J). ↩
cf KMD v CEO (Department of Health NT) (2025) 99 ALJR 474 per Jagot J at [45]. ↩
Warren v Coombes (1979) 142 CLR 531 at 551. ↩
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581; CGU Insurance Ltd v Blakeley (2016) 259 CLR 339 at 346 [13]. ↩
Hobart International Airport Pty Ltd v Clarence City Council (2022) 276 CLR 519 at 548 [61]. ↩
Section 10 of the Equity Act 1901 (NSW): “In addition to the jurisdiction which is otherwise vested in it, the Court shall have jurisdiction to make binding declarations of right whether or not any consequential relief is or could be claimed, and whether or not the suit in which the declaration is sought is a suit for equitable relief or a suit which relates to equitable rights or titles. No suit shall be open to objection on the ground that a merely declaratory decree is sought thereby.” The equivalent provision is now to be found in s 75 of the Supreme Court Act 1970 (NSW). ↩
See Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 at 414; Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 359 [103]; Edwards v Santos Ltd (2011) 242 CLR 421 at 435 [36], 436 [37]-[38], see also 425 [1]; Hobart International Airport Pty Ltd v Clarence City Council (2022) 276 CLR 519 at 538 [32]. ↩
Hobart International Airport Pty Ltd v Clarence City Council (2022) 276 CLR 519 at 550 [65]-[66]. ↩
Unions NSW v New South Wales (2023) 277 CLR 627 at 642 [25]. ↩
Unions NSW v New South Wales (2023) 277 CLR 627 at 640 [21]. ↩
Reference was additionally made to Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [100]-[103]. ↩
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582, 596-597. ↩
Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 65 [20], 65-66 [22]-[23], 76 [64], 89 [109], 90 [112], 123 [235]-[236], 151-152 [349]-[350]. ↩
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582, 596-597. ↩
Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 65 [20], 65-66 [22]-[23], 76 [64], 89 [109], 90 [112], 123 [235]-[236], 151-152 [349]-[350]. ↩
Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 65-66 [23]. And see to similar effect: at 76 [64] per Bell J; 90 [112] per Gageler J. ↩
Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 123 [235]. ↩
In Beale v Chief Health Officer [2022] QCA 188, this Court reached a contrary view. But Beale was argued on 6 June 2022 and decided on 30 September 2022. Unions NSW v New South Wales was argued in November 2022 and not decided until 15 February 2023. ↩
cf Argos Pty Ltd v Minister for the Environment and Sustainable Development (2014) 254 CLR 394 at 405-406 [28]-[32] per French CJ and Keane J and 414 [60]-[61] per Hayne and Bell JJ. ↩
Transcript 1-13 line 27 to 1-14 line 40. ↩
Momcilovic v The Queen (2011) 245 CLR 1 at 50 [51]; see also R v DA (2016) 263 A Crim R 429 per Ashley, Redlich and McLeish JJA at [44]; Director of Public Prosecutions v Smith (2024) 98 ALJR 1163 per Gageler CJ, Gleeson, Jagot and Beech-Jones JJ at 1175 [47] and per Edelman J at 1191 [134]. ↩
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582. ↩
Hunt v Gerrard [2022] QCA 263. The High Court of Australia refused special leave to appeal from that decision, see [2023] HCASL 82. ↩
Brisbane City Child Care Pty Ltd v Kadell (2020) 5 QR 367 at [55]. ↩
Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623 at [197]; BZN v Chief Executive, the Department of Children, Youth, Justice and Multicultural Affairs [2023] QSC 266 at [66]. ↩