Zoe is a legal information platform. Always consult the official source for authoritative text.
Ishiyama & Ors v Dr Peter Aitken, Former Chief Health Officer & Ors; Baxter & Ors v Dr John Gerrard, Chief Health Officer & Anor; Hunt & Ors v Dr John Gerrard, Chief Health Officer & Anor [2022] QSC 41 - QSC 2022 case summary — Zoe
Ishiyama & Ors v Dr Peter Aitken, Former Chief Health Officer & Ors; Baxter & Ors v Dr John Gerrard, Chief Health Officer & Anor; Hunt & Ors v Dr John Gerrard, Chief Health Officer & Anor [2022] QSC 41
[2022] QSC 41
Supreme Court of Queensland|2022-04-05|Before: Dalton J
ADMINISTRATIVE LAW – REASONS FOR ADMINISTRATIVE DECISIONS –
OBLIGATION TO GIVE REASONS – where the Chief Health
Officer made a
decision to make directions under the Public Health Act 2005 (Qld)
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – REASONS FOR ADMINISTRATIVE DECISIONS –OBLIGATION TO GIVE REASONS – where the Chief HealthOfficer made adecision to make directions under the Public Health Act 2005 (Qld)– where the Applicants requested a statement of reasons under theJudicial Review Act 1991 (Qld) – where the Applicants are entitledto a statement of reasons if the decision is of administrative character –whetherthe decision was of administrative character – whether thedecision was of a legislative characterHospital and Health Boards Act 2011 (Qld), s 52, s 53,s 53ACJudicial Review Act 1991 (Qld), s 4, s 31, s 32, s 33,Public Health Act 2005 (Qld), s 319, s 324, s 332, s 333, s 335,s 345, s 347, s 349, s 352, s 354, s 362A, s 362B, s 362C, s 362D, s 362E,s 362FA, s 362G, s 362H, s 362IBraemar Power Project Pty Ltd v The Chief Executive, Department of Minesand Energy [2008] QSC 241, consideredCommonwealth v Grunseit
[1943] HCA 47
(1943) 67 CLR 58, considered
Federal Airports Corporation v
Aerolineas Argentinas [1997] FCA 723
(1997) 76 FCR 582, cited
Griffith University v
Tang [2005] HCA 7
(2005) 221 CLR 99, cited
Hamblin v Duffy [1981] FCA 38
(1981) 50 FLR 308,
considered
Kassam v Hazzard [2021] NSWCA 299,
considered
McWilliam v Civil Aviation Safety Authority [2004] FCA 1701
(2004) 214 ALR
251, cited
Queensland Medical Laboratory v Blewett [1988] FCA 423
(1988) 84 ALR 615,
considered
RG Capital Radio Ltd v Australian Broadcasting Authority
[2001] FCA 855, considered
Schwennesen v Minister for the Environment
and Resource Management [2010] QCA 340, considered
Sea Shepherd
Australia Ltd & Anor v Western Australia & Ors [2014] WASC 66
(2014) 313 ALR 184,
considered
Victorian Stevedoring & General Contracting Co Pty Ltd v
Dignan [1931] HCA 34
(1931) 46 CLR 73, cited
Judgment (150 paragraphs)
[1]
ADMINISTRATIVE LAW - REASONS FOR ADMINISTRATIVE DECISIONS - OBLIGATION TO GIVE REASONS - where the Chief Health Officer made a decision to make directions under the Public Health Act 2005 (Qld) - where the Applicants requested a statement of reasons under the Judicial Review Act 1991 (Qld) - where the Applicants are entitled to a statement of reasons if the decision is of administrative character - whether the decision was of administrative character - whether the decision was of a legislative character
S A McLeod QC with B McMillan and P Nevard for the respondents
[18]
S A McLeod QC with B McMillan and P Nevard for the respondents
[19]
[1] These proceedings challenge directions of the Chief Health Officer (CHO) under the Judicial Review Act 1991 (Qld) (JRA) and the Human Rights Act 2019 (Qld). These interlocutory applications came about because the applicants requested reasons for the making of the decisions to make the relevant directions. The CHO refused to give reasons on the basis that his decision to make the directions was of a legislative character, not an administrative character, and that therefore he was not obliged to give reasons. My view is that he was correct. I dismiss the three interlocutory applications. I provide my reasons.
[20]
[2] The directions were made under the Public Health Act 2005 (Qld) (PHA). Chapter 8 of the PHA is entitled "Public health emergencies". Part 2 allows the Minister to declare a public health emergency, s 319, and to end a public health emergency, s 324.Part 4 provides that on the declaration of a public health emergency the chief executive (Director General) of the Health Department is responsible for the "overall management and control of the response to the emergency", s 332, and provides power for the Chief Executive to appoint emergency officers with wide-ranging powers to respond to the public health emergency - s 345 and following.
[3] Part 7A was added to the PHA during the COVID-19 pandemic.[1] It is headed "Particular powers for COVID-19 emergency". The purposes of the Part are, "to confer additional powers for the COVID-19 emergency on ... the chief health officer ... and emergency officers ...", s 362A. Before this amending legislation, Chapter 8 of the PHA conferred no specific powers on the CHO.
[4] The challenged directions are made under the following provisions of
[21]
(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.
[22]
(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 -
[23]
(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.
[24]
(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.
[25]
(a) when the direction is given; or
(b) if the direction fixes a later day or time - on the later day or at the later time.
[26]
(2) For subsection (1)(a), if the public health direction is published on the department's website and in the gazette, the direction is given when it is first published.
[27]
(3) As soon as reasonably practicable after a public health direction is given, the chief health officer must take reasonable steps to ensure that persons likely to be directly affected by the direction are made aware of the giving of the direction.
[28]
Examples of steps that may be reasonable for subsection (3) -
[29]
• advertising in newspapers, on radio and on television
[30]
362D Failure to comply with public health directions
[31]
A person to whom a public health direction applies must comply with the direction unless the person has a reasonable excuse.
[32]
Maximum penalty - 100 penalty units or 6 months imprisonment."
[33]
[5] There are three directions under challenge in these proceedings. I will set out the relevant features of each.
[34]
[6] This direction, challenged in Baxter, applies to workers in a healthcare setting.
[35]
"Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (No. 3)
[36]
Direction from Chief Health Officer in accordance with emergency powers arising from the declared public health emergency
On 29 January 2020, under the Public Health Act 2005, the Minister for Health and Minister for Ambulance Services made an order declaring a public health emergency in relation to coronavirus disease (COVID‑19). The public health emergency area specified in the order is for 'all of Queensland'. Its duration has been extended by regulation to 26 March 2022 and may be further extended.
[40]
Further to this declaration, I, Dr John Gerrard, Chief Health Officer, reasonably believe it is necessary to give the following directions pursuant to s362B of the Public Health Act 2005 to assist in containing, or to respond to, the spread of COVID-19 within the community.
[41]
This public health direction applies to workers in healthcare who enter, work in, or provide services in a healthcare setting. The direction sets out the COVID-19 vaccination requirements for workers in healthcare, their employers and responsible persons in healthcare settings, with limited exceptions, to assist in containing the spread of COVID-19 in vulnerable settings, including health, disability and aged care settings, and in the broader community."
[42]
4. This Public Health Direction may be referred to as the Workers in a Healthcare Setting (COVID-19 Vaccination Requirements) (No. 3) Direction.
[43]
5. This Direction applies from time of publication until the end of the declared public health emergency, unless it is revoked or replaced.
[44]
6. This Direction applies to workers in healthcare, including those in the National Registration and Accreditation Scheme, all self‑regulated allied health professionals and all other individuals who work in a healthcare setting.
7. A worker in healthcare must not enter, work in, or provide services in a healthcare setting unless the worker in healthcare complies with the COVID-19 vaccination requirements.
[47]
8. The COVID-19 vaccination requirements are that:
[48]
a worker in healthcare must be fully vaccinated; and
[49]
[7] Part 2 of the direction contains exceptions for persons who are "unable to be vaccinated due to a current medical contraindication" but provides that those workers must comply with various requirements, such as the use of PPE and testing requirements. There are other exceptions provided for: participation in a COVID-19 trial; circumstances of critical workforce shortage; emergencies, and the like.
[8] Part 3 imposes obligations to keep records in relation to COVID-19 vaccine compliance on various persons, such as employers.
[9] Part 5 of the direction gives an emergency officer (public health) the power to compel a worker in healthcare or their employer to comply with additional directions if the officer believes that is reasonably necessary.
[10] Part 6 is over six pages long. It contains definitions of various terms, such as: COVID-19 vaccine; COVID-19 test; COVID-19 PCR test; COVID-19 RAT; fully vaccinated; healthcare setting; medical contraindication; proof of COVID-19 vaccination and worker in healthcare. It is from the definitions that the seemingly simple provisions, such as paragraph 7, (above) acquire meaning. Through the use of defined terms the CHO prescribes such matters as what persons are within the ambit of the direction; what places are not to be entered by non-vaccinated persons; what constitutes vaccination, and what constitutes proof of vaccination. The entire direction is 16 pages long.
[50]
[11] The applicants in Ishiyama challenge the direction entitled COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2) and the earlier direction in similar terms which has been revoked.
[12] The current direction provides as follows:
[51]
"COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction
[52]
Direction from Chief Health Officer in accordance with emergency powers arising from the declared public health emergency
On 29 January 2020, under the Public Health Act 2005, the Minister for Health and Minister for Ambulance Services made an order declaring a public health emergency in relation to coronavirus disease (COVID-19). The public health emergency area specified in the order is for 'all of Queensland'. Its duration has been extended by regulation to 26 March 2022 and may be further extended.
[56]
Further to this declaration, I, Dr Peter Aitken, Chief Health Officer, reasonably believe it is necessary to give the following directions pursuant to s362B of the Public Health Act 2005 to assist in containing, or to respond to, the spread of COVID-19 within the community.
[57]
This public health direction applies to workers who enter, work in, or provide services in a high-risk setting. The direction defines how a high‑risk setting is identified by the Chief Health Officer and specifies the COVID-19 vaccination requirements and related obligations for workers and employers operating in a high-risk setting. The direction recognises that an employer may mandate vaccination for employees, where otherwise permitted at law, based on the requirements of a role.
[58]
1. This Public Health Direction applies to workers in settings where there is:
[59]
high risk of transmission of the COVID-19 virus; or
the setting is used by a large number of vulnerable persons; or
a sudden reduction in available workforce due to COVID-19 cases or quarantine would significantly affect the continuity of critical services resulting in potential consequential public health and safety risks to the community.
[60]
2. This Public Health Direction supplements existing public health directions already made to contain or respond to the spread of COVID-19 by mandating vaccination of workers in healthcare settings, in quarantine facilities and in vulnerable facilities. Nothing in this public health direction reduces the requirements of those public health directions.
[61]
3. Separately from the requirements of Public Health Directions, under sections 362G and 362H of the Public Health Act 2005, an emergency officer (public health) can require a person to comply with additional directions if the emergency officer believes it is reasonably necessary to assist in containing, or to respond to, the spread of COVID-19 in the community.
[62]
4. This Public Health Direction may be referred to as the COVID‑19 Vaccination Requirements for Workers in a High‑Risk Setting Direction.
[63]
5. This Public Health Direction applies from time of publication commences until the end of the declared public health emergency, unless it is revoked or replaced.
[64]
6. This Public Health Direction applies to workers in a high-risk setting in the public, private and non-government sectors, and identifies the COVID-19 vaccination and related requirements for workers, employers and responsible persons in high risk settings.
[65]
7. This Public Health Direction does not apply to people who visit the high-risk setting to access or use its services, either for themselves or as a support person for someone else.
[66]
8. The requirements of this public health direction prevail where a worker is required to be vaccinated under this direction, and another public health direction also applies to the worker but does not require the worker to be vaccinated. The worker must comply with the COVID-19 vaccination requirements for workers in a high-risk setting.
9. A worker must not enter and remain in, work in, or provide services in a high-risk setting unless the worker complies with the COVID‑19 vaccination requirements in paragraph 17.
[69]
Examples: a contractor, union official, regulator, auditor, courier, performer, or sales representative must comply with the COVID-19 vaccination requirements to work in a high-risk setting even though they may only occasionally enter the setting as part of their work duties.
[70]
10. An employer whose employees or contractors work in a high-risk setting must notify workers of the COVID-19 vaccination requirements and take all reasonable steps to ensure that a worker does not enter and remain in, work in, provide services or volunteer in a high-risk setting if the person does not meet the COVID-19 vaccination requirements or have a medical contraindication for COVID-19 vaccines.
[71]
11. A high-risk setting is a service, business or activity declared to be a high-risk setting by the Chief Health Officer in Schedule 2."
[72]
[13] The direction is 14 pages long. It defines high risk settings to be schools, corrective facilities, police watch-houses, youth detention settings and some areas of airports. It defines what a person must do to be fully vaccinated. It grants exemptions on medical bases, as well as on bases related to clinical trial of vaccines, workforce shortages and emergency entry.
[73]
[14] The applicants in the Hunt proceedings challenge the social measures direction, namely, the Public Health and Social Measures linked to vaccination status Direction (No 3), and its predecessor, a similar direction (No 2).
[15] The social measures direction provides as follows:
[74]
"Public Health and Social Measures linked to vaccination status Direction (No. 2)
[75]
Direction from Chief Health Officer in accordance with emergency powers arising from the declared public health emergency
On 29 January 2020, under the Public Health Act 2005, the Minister for Health and Ambulance Services made an order declaring a public health emergency in relation to coronavirus disease (COVID-19). The public health emergency area specified in the order is for 'all of Queensland'. Its duration has been extended by regulation to 26 March 2022 and may be further extended.
[79]
Further to this declaration, I, Dr John Gerrard, Chief Health Officer, reasonably believe it is necessary to give the following direction pursuant to the powers under s 362B of the Public Health Act 2005 to assist in containing, or to respond to, the spread of COVID-19 within the community.
[80]
1. This Public Health Direction outlines the requirements for businesses, activities and undertakings, including COVID-19 vaccination requirements for owners, operators visitors and staff entering and remaining in businesses, activities and undertakings
[81]
2. This Public Health Direction is to be read in conjunction with other Public Health Directions issued under section 362B of the Public Health Act 2005 that have not expired or been revoked.
[82]
3. This Public Health Direction may be referred to as the Public Health and Social Measures Linked to Vaccination Status Direction (No.2).
[83]
5. This Public Health Direction applies from time of publication until the end of the declared public health emergency, unless it is revoked or replaced.
[84]
6. This Public Health Direction applies to a business, activity or undertaking in Queensland listed in Schedule 1, and to an owner or operator, staff and a visitor who enters the business, activity or undertaking. The specific requirements relating to a business, activity or undertaking in this Direction prevail to the extent of any inconsistency with a general requirement of the Movement and Gathering Direction (No. 12).
[85]
7. Nothing in this Public Health Direction removes a vaccination requirement for a person who is required to be vaccinated for COVID-19 under another public health direction. Nor does this Public Health Direction prevent the responsible person for a high risk setting from requesting and retaining information or records authorised or required under an Act or Regulation.
[86]
PART 1 - DIRECTION - PUBLIC HEALTH AND SOCIAL MEASURES LINKED TO VACCINATION STATUS
[87]
Vaccination Entry Requirements - Business, Activity or Undertaking in Schedule 1
[88]
8. A person may only enter and remain at a business, activity or undertaking where they:
[89]
comply with the vaccination entry requirements relating to the business, activity or undertaking and provide proof of COVID-19 vaccination prior to entering the business, activity or undertaking or prior to being served or upon request; or
are unvaccinated and provide evidence of a medical contraindication prior to entering the business, activity or undertaking or prior to being served or upon request; or
are unvaccinated and provide evidence of being a COVID-19 vaccine trial participant or a medical certificate or a letter from a medical practitioner, certifying that the person is currently taking part in a COVID-19 vaccine trial
[90]
Note: a person who enters a venue to access a COVID-19 vaccination at a vaccination centre within the business, activity or undertaking must only enter that part of the venue that is the vaccination centre and must not remain any longer than required, unless otherwise permitted to do so under this Direction.
[91]
9. A person who owns, controls or operates a business, activity or undertaking listed in Schedule 1 in Queensland, whether operating at a private residence, commercial premises or in a public space, must when operating the business, activity or undertaking:
[92]
comply with the vaccination entry requirements for the business, activity or undertaking; and
take reasonable steps to ensure staff and visitors comply with the vaccination entry requirements for the business, activity or undertaking; and
clearly display the requirement for staff and visitors to be fully vaccinated and provide evidence of COVID-19 vaccination or of a medical contraindication; and
request and sight proof of COVID-19 vaccination or evidence of a medical contraindication required under Part 2; and
request and sight evidence that the person is a COVID‑19 vaccine trial participant.
clearly display the Check in Qld app QR code at each entry to the business that is used by staff or visitors
collect contact information required under Part 3; and
comply with any COVID-19 density limits for the business, activity or undertaking; and
operate in accordance with the COVID-19 checklist or COVID safe site plan, where required.
[93]
Note: the requirements of this public health direction apply to premises or a public space only to the extent that the business, activity or undertaking is conducted at the premises or public space. Where a business, activity or undertaking is conducted from a private residence, for example, the requirements of this public health direction only apply to the part of the private residence used by or for thebusiness, activity or undertaking.
[94]
[16] The businesses, activities or undertakings subject to this direction are defined in Schedule 1 of the direction to be hospitality and entertainment venues, stadiums, festivals, libraries, museums and galleries, et cetera. Again there is exemption for medical contraindication and vaccine trial participation. This direction also obliges a person who controls a business, activity or undertaking subject to it to collect contact information from anyone who visits one of the venues.
[17] All three directions contained a notice as to penalty in similar terms. The Workers in a Healthcare Setting direction provided as follows:
A person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction.
[97]
Section 362D of the Public Health Act 2000 provides:
[98]
Failure to comply with the public health directions
[99]
A person to whom a public health direction applies must comply with the direction unless the person has a reasonable excuse.
[100]
Maximum penalty - 100 penalty units or 6 months imprisonment.
[101]
Published on the Queensland Health website at 4.30pm."
[102]
[18] It is noteworthy that this section of each direction informs the reader that s 362D of the PHA provides for a penalty, but that the directions themselves do not impose a penalty.
[103]
(1) If a person makes a decision to which this part applies, a person who is entitled to make an application to the court under section 20 in relation to the decision may request the person to provide a written statement in relation to the decision.
[104]
"33 Decision-maker must comply with request except in certain circumstances
[105]
(1) Subject to this section, a person to whom a request is made under section 32 (the decision-maker) must, as soon as practicable, and, in any event, within 28 days after a receiving the request, provide the statement to the person who made the request (the requester).
[106]
[21] The right to request a statement of reasons is given to a person concerned about "a decision to which this part applies". That phrase is defined at s 31 of the JRA relevantly to mean "a decision to which this Act applies". That phrase is in turn defined at s 4 of the JRA, again relevantly, "(a) a decision of an administrative character made, ... under an enactment ...".
[107]
[22] The cases recognise that the JRA, and its analogues, use the expression "of an administrative character" to exclude, "decisions of a 'legislative' or 'judicial' character."[2] In Queensland Medical Laboratory v Blewett Gummow J stated:
[108]
"The decisions to which the ADJR Act applies are limited, inter alia, by the requirements of the definition in s 3(1) that they be made 'under' an 'enactment' ... and that they be 'of an administrative character'. That expression is not further defined. But as Fox J explained in Evans v Friemann ... the use of the term 'administrative character' indicates that the ADJR Act recognises and maintains the constitutional trichotomy (found in Chs I, II and III of the Constitution) between the legislative, the administrative and the judicial as an exhaustive description of decision-making ... ."[3]
[109]
[23] There are numerous statements in the cases and texts as to the difficulty in distinguishing between administrative and legislative acts.[4] The starting point for any consideration is the decision of the High Court in Commonwealth v Grunseit (above), although the subsequent cases recognise that in addition to what is said in that decision, regard must be had to various other indicia.
[24] Grunseit concerned the National Security (Aliens Service) Regulations 1942 No. 39. By reg 8 of these wartime regulations it was provided that:
[110]
"(1) The Minister of State for the Army may direct that -
[111]
(a) Any male refugee alien under the age of sixty years who has not, within fourteen days after he first became liable to register, volunteered and been accepted for service in any part of the Naval Military or Air Forces of the Commonwealth ... shall perform such service in Australia as is directed by the Minister of State for Labour ... being service which the alien is, in the opinion of the Minister issuing the direction, capable of performing."
[112]
[25] Pursuant to reg 8, on 17 August 1942 the Minister for the Army directed that:
[113]
"... every male refugee alien, and every male enemy alien other than a refugee alien who -
[114]
(a) is of, or above, the age of eighteen years, and under the age of sixty years; and
(b) has not, within fourteen days after he first became liable to register, volunteered and been accepted for service in some part of the Naval, Military or Air Forces of the Commonwealth, shall perform such service in Australia as is directed by the Minister of State for the Interior, not being service in the Armed Forces, but being service which the alien is, in the opinion of the Minister of State for the Interior, capable of performing."
[115]
[26] The direction of 17 August 1942 was held to be an exercise of executive power; the High Court rejected the argument that it was an exercise of legislative power. Latham CJ determined the case this way:
[116]
"... In the case of orders, some orders would plainly be executive, as, for example, where in pursuance of a power created by legislation a particular person was ordered by another person to do a particular thing. The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases. Attention has been given in the United States of America to this distinction for the purpose of applying the doctrine which is there accepted of the separation of legislative, executive, and judicial power. My brother Williams referred to the case of JW Hampton Jr & Co v United States, where it was said: 'The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law.' ...
[117]
In the present case, in my opinion, the direction of the Minister for the Army applies the general rule which is laid by reg. 8 to particular cases which are described by reference to common characteristics. The law is not altered by the direction of the Minister; it is neither extended nor limited. The direction makes the law applicable in certain cases, the content of the law not being changed. The case might be more open to argument if the order of the Minister created a new rule of conduct depending on circumstances or considerations which were not stated or indicated in the regulation. I agree with the decision of Williams J that the order of the Minister for the Army in this case was of an executive, not of a legislative character, and that it was therefore not necessary to lay it before Parliament." - pp 82-83.
[118]
[27] Starke J expressed similar reasoning, "This direction is not of a legislative character, for it prescribes in itself no rule of conduct for the subject but simply executes the power given by reg 8 of the Aliens Service Regulations." - p 93.
[119]
Other Indicia of Legislative or Administrative Character
[120]
[28] I turn to consider cases which have discussed other indicia bearing upon the distinction between legislative and administrative action. In Schwennesen v Minister for Environment and Resource Management[5] the Court of Appeal considered 10 indicia which had been recognised by McMurdo J in the earlier case of Braemar Power Project Pty Ltd v The Chief Executive, Department of Mines and Energy.[6] The 10 factors recognised as indicating that a decision was of a legislative character were:
[121]
"(i) creates new rules of general application, rather than applies existing rules to particular cases;
[122]
(ii) must be publicly notified in the Gazette or similar publication;
(iii) cannot be made until there has been wide public consultation;
(iv) incorporates or has regard to wide policy considerations;
(v) can be varied or amended unilaterally by its maker, the analogy being to primary legislation;
(vi) cannot be varied or amended by the Executive;
(vii) is not subject to merits review in a tribunal such as the AAT;
(viii) can be reviewed in Parliament (for example, it is a disallowable instrument);
(ix) triggers the operation of other legislative provisions; and
(x) has an effect which is binding."
[123]
[29] It can be seen that the first of these factors derives from the case of Grunseit.
[30] The decision in Schwennesen recognises that no single factor is determinative - [9] and that not all of the indicia will point in the same direction. Ultimately it is "a question of judgment as to whether the factors suggesting that the decision is legislative will 'displace those that would suggest to the contrary'." - [34]. I would add that because the Court will be obliged to make a distinction between legislative and executive action in widely varying cases, some factors will assume more weight in some cases than in others. As well, the circumstances of any particular case may suggest other criteria for analysis. In Sea Shepherd Australia Ltd & Anor v Western Australia & Ors (above), Edelman J listed the factors which he had summarised and adapted from the caselaw:
[124]
"(i) the greater the control that Parliament has over the power reposed in the executive the more legislative the instrument will be in effect;
[125]
(ii) a requirement of wide public consultation before an instrument takes effect is an indicator that it has legislative effect;
(iii) the wider the range of considerations that the decisionmaker is entitled to take into account, the more likely the instrument will be characterised as legislative in effect;
(iv) a broad nature and impact of the decision will be another indicator of legislative effect;
(v) the absence of executive control of the decision indicates that it has a legislative effect; and
(vi) the omission of a power of merits review by an administrative tribunal is another indicator of legislative effect." - [80].
[126]
[31] Immediately after listing these factors Edelman J remarked:
[127]
"[81] These are not exhaustive factors. At the end of the day, the question of whether an instrument has legislative effect is to be answered by considering whether the instrument bears sufficient resemblance to legislation, having regard to those qualities usually present in legislation. The more legislative qualities that are present in the instrument the more it is likely to have a legislative effect."
[128]
Indications that the CHO Directions are Legislative in Character
[129]
[32] In this case there are a number of factors which are indications that the decisions to make the directions was of a legislative character. The most important is that the CHO directions determine the content of the rule of law. It is these directions that determine which citizens the rules apply to; what citizens must do to be regarded as vaccinated, and in what circumstances unvaccinated citizens may attend various places to which they would otherwise have free access.
[33] I reject the argument that it is s 362B of the PHA which determines the content of the rule of law. That argument amounts to saying that with respect to the topics listed in s 362B(2), the law is what the CHO says it is. Section 362B does not in substance or in fact provide the content of rules of law. Section 362B is properly to be regarded as empowering the CHO to determine the content of the rules of law in relation to the topics enumerated at subsection (2) thereof. It is the CHO who determines what are the rules of law which apply and, for how long those rules apply - see s 362B(3) and s 362E of the PHA.
[34] There is no doubt that the CHO made directions pursuant to powers given to him by the PHA, but he could not in substance be said to simply have applied legislative provisions of that Act or to have executed provisions of that Act. By making the directions, he was determining the content of the rules of law which were to apply in Queensland.
[35] The rules were to apply generally to people in Queensland. They applied prospectively. They had significant impact on the employment, recreation, rights to freedom of movement and bodily integrity of many people.
[36] Next, the directions are to be made by notice published on the Department's website or in the Gazette - s 362B(2). They take effect from the time they are published on the Health Department's website or the Gazette - s 362C(2). In fact they are not "given" until they are published on the Health Department's website or in the Gazette - s 362C(2). The requirement for publication is consistent with the directions being legislative in character. It is an obvious corollary of the fact that the CHO is making new rules of conduct which apply generally to persons in Queensland.
[37] The PHA allows for the notice to be published either on the Health Department's website or in the Government Gazette. While the Government Gazette has been the traditional place of publication for matters of governmental importance, I cannot see that publication on the Health Department's website is any less an indicator of legislative character. To begin with, both legislative and administrative decisions are routinely published in the Government Gazette. Secondly, publication on the Health Department's website may well be a better method of providing fast access to the direction for the majority of people who are affected by it. The essential point is that the directions must be published, and are not effective until they are published in a way which allows rapid and widespread access to them by members of the public.
[130]
[42] In some cases, such as Schwennesen and RG Capital Radio Ltd, the facts that the decision‑maker was obliged to engage in wide public consultation and have regard to wide policy considerations were considered to be indicators that the decision was of a legislative character.
[43] The Full Court of the Federal Court in RG Capital Radio thought that the relevance of wide public consultation as an indica of legislation was that it "emphasise[d] the general nature of a licence area plan, and so adds weight to the first consideration dealt with ... above [content of a general rule rather than particular application of a rule]." - [61]. More generally, it may be that it is thought the requirement for wide public consultation mimics something of the democratic process in creating legislation. In discussing a similar factor - the breadth of policy considerations which a decision‑maker was to take into account as indicating a legislative quality, the Full Court in RG Capital Radio did not place great weight on this factor commenting, "More persuasive are the nature and impact of the resulting decision" - [66].
[44] The decisions of the CHO to make directions under emergency powers in the PHA are very different from the type of decisions in Schwennesen and RG Capital Radio. In circumstances of a public health emergency, someone uniquely qualified to address medical matters and public health measures urgently, namely the CHO, is given power to make directions he or she believes necessary to assist in containing the spread of COVID-19 within the community or which are necessary to protect public health - s 362B. The circumstances in which the power to make directions is to be exercised are very different to, say, the power to make directions as to sustainable water use over large geographical areas (Schwennesen) or to make decisions about radio licencees having regard to social, economic, commercial and technological factors over a wide geographical area of radio broadcasting (RG Capital Radio). While the requirement for wide public consultation and application of wide policy considerations could be seen in those cases to be an indicator that the character of the decisions made was legislative, I do not see the absence of such requirements in the circumstances here as any strong indication that the decisions were of an administrative character. I regard them as neutral.
[131]
Indications that the CHO Decisions are of an Administrative Character
[132]
[45] Counsel for the applicants in Ishiyama and Hunt ran an argument that when consideration was given to the "subject matter, scope and purpose of the PHA so as to identify the nature of the power in s 362B and the nature of the repository of that power", the directions should be classified as administrative in nature.
[46] He pointed to the legislation creating the role of CHO. It is an office created by s 52 of the Hospital and Health Boards Act 2011 (Qld) (HHBA). The CHO is employed as a public service officer or as a health service employee - s 52(2). That is, the CHO is employed as part of the executive. Section 53 of the HHBA provides that the functions of the CHO are to provide high level medical advice to the chief executive (Director General) and the Minister for Health on health issues, including on policy and legislative matters associated with the health and safety of the Queensland public. The same section allows that the CHO will have any functions given by the chief executive of Health under the HHBA or another Act.
[47] The fact that the CHO is part of the executive is relevant in determining the nature of the contested directions. However, the legislature may confer a power to legislate on a member of the executive.[9] Further, in Hamblin v Duffy[10] Lockhart J said, "The phrase 'decision of an administrative character' suggests to me that the Judicial Review Act looks more to the nature or character of the decision itself than to the person or body making the decision. But the identity of the particular person or body must be relevant."
[48] The applicants' submission continued that Chapter 8 of the PHA was concerned to grant management powers to executive officers during public health emergencies. It is the Minister who has power to declare a public health emergency - s 319, and to end it - s 324. In declaring a public health emergency, the Minister is to consult with the chief executive and CHO - s 319. Once a public health emergency has been declared, the chief executive "is responsible for the overall management and control of the response to the emergency". He or she may declare public servants, health service employees, local government employees and SES members to be emergency officers - s 333, and may declare public servants or health employees to be emergency officers (medical) - s 335. Emergency officers have powers given by Chapter 8 of the PHA. The main section granting those powers is s 345(1):
[133]
(1) An emergency officer responding to a declared public health emergency may do any of the following the emergency officer reasonably believes is necessary to respond to the declared public health emergency -
[134]
(a) require a person not to enter or not to remain within a place;
(b) require a person to stop using a place for a stated purpose;
(c) require a person to go to a stated place;
(d) require a person to stay at or in a stated place;
(e) require a person to take measures to remove from the person a substance that is a hazard to human health, for example, by showering;
(f) direct the movement of a person, animal or a vehicle into, out of, or around the public health emergency area;
(g) require a person to state the person's name and residential address;
(h) require a person to answer questions by the emergency officer;
(i) clean or disinfect a place, structure or thing;
(j) carry out insect or pest control;
(k) demolish stated structures or other property;
(l) contain an animal, substance or thing within the public health emergency area;
(m) remove an animal, substance or thing from a place;
(n) destroy animals at a place or remove animals from a place for destruction at another place;
(o) dispose of an animal, substance or thing at a place, for example, by burying the animal, substance or thing;
(p) take action in relation to property including, for example, to allow the officer to take control of a building for the purposes of the emergency;
(q) require a person to give the emergency officer reasonable help to exercise the emergency officer's powers under paragraphs (i) to (p)."
[135]
[49] Emergency officers also have power to enter premises, search, inspect, measure, test, et cetera - s 347.
[50] Chapter 8 Part 7 gives powers to emergency officers (medical). If such an officer suspects a person to have a serious disease or illness, the emergency officer (medical) may, in certain circumstances, order the detention of the person at a place decided by the officer. The order is to be in writing and to describe the illness or disease; the place where the person is to be detained, and the time when the detention order ends - s 349. An emergency officer (medical) may establish an area, called an isolation area, to accommodate detained persons - s 352. As soon as practicable after a person is detained, an emergency officer may request that they be medically examined - s 354.
[51] I accept the submission which was made on behalf of the applicants that those parts of Chapter 8 just described are concerned with giving members of the executive powers to manage a public health emergency. These powers are, in my view, powers to take executive action and make decisions of an administrative nature. They allow executive officers to give particular people particular directions to do particular things, to paraphrase Latham CJ in Grunseit. They do not allow the emergency officer to change the content of the law, or make rules which are applicable to society generally. The powers given at s 345(2)-(5) govern the interaction between the emergency officer and the person with whom that officer is dealing, and it is clear that a particular, indeed personal, interaction is contemplated. The same might be said of the powers contained in s 347. Once again, the section contemplates a particular, personal, interaction with a person or persons at a particular place.
[52] Section 349 gives detention powers to an emergency officer (medical). Again, in my view, it contemplates a member of the executive having a particular, personal, interaction with someone they suspect has a serious disease or illness. To detain the person, the emergency officer (medical) must give a written order - s 349(3). The section does not state to whom the order is to be given. It might reasonably be contemplated that it would be given to the person; officers charged with detaining the person, and the person in charge of the place of detention. In any event, the giving of the written order contrasts with the idea that directions made by the CHO pursuant to s 362B are not effective until they are published either on the Health Department's website or in the Government Gazette. The contrast is between the particular and the general and, in my view, between the exercise of administrative power and the exercise of legislative power.
[136]
[60] It was submitted by the applicants that because the JRA was a remedial Act, the phrase "of an administrative character" should not be construed in an unduly technical or restrictive way. An associated point is that there is dicta in several cases to the effect that a decision or act might bear both administrative and legislative characters.[12]
[61] Both these arguments were dealt with, correctly with respect, in Schwennesen. There have been numerous cases interpreting the phrase "of an administrative character" in the JRA and its analogues. All of them have accepted that "the evident purpose of the expression 'of an administrative character' was to exclude decisions of a 'legislative' or 'judicial' character".[13] Further:
[137]
"[37] The remedial nature of the Judicial Review Act 1991 (Qld) does not justify treating a decision as being of an administrative character if analysis of the decision demonstrates, as the primary judge held, that its administrative characteristics are displaced by its legislative characteristics. The decision was essentially legislative and it was therefore not of an administrative character. For that reason the decision is not amenable to review under the Judicial Review Act 1991 (Qld)."
[138]
[62] In my view, the preponderance of factors advanced by the parties, and recognised by the case law, show that the CHO's power to make decisions to publish directions under Part 7A of Chapter 8 of the PHA was of a legislative, rather than administrative character. This is not merely a numerical exercise, when the factors at [32]-[40] above are considered, it seems to me that the decisions of the CHO have the quality of legislation, not administration.
[6][2008] QSC 241, [21]. That list of criteria was in turn derived from analysis in Aronson, Dyer & Groves, Judicial Review of Administrative Action, [4th Ed, 2009] and various decisions of the Federal Court.
[8] The Court of Appeal decision in Schwennesen is one of the latter cases. See paragraph [26].
[147]
[9]Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan[1931] HCA 34; (1931) 46 CLR 73 cited in Queensland Medical Laboratory v Blewett at pp 633-634 and in RG Capital Radio at [51].
[38] Also closely associated with the fact that the directions create new rules of conduct of general application are that, (i) the population is bound by the rules and that, (ii) disobedience to the rules will trigger the operation of the penalty provision at s 362D of the PHA. These are both indications that the directions are legislative in character.
[39] Associated with the factors which I have discussed to this point is that identified at (iv) in the summary given by Edelman J in Sea Shepherd above, that the directions are of a broad nature and impact. This is another strong indicator of legislative effect. It was recognised by Leeming JA in Kassam v Hazzard,[7] a New South Wales Court of Appeal case dealing with a similar challenge to COVID-19 rules. Leeming JA described similar orders made in response to the COVID emergency in New South Wales as having some administrative characteristics but went on to say, "On the other hand, as a matter of substance, the orders are 'legislative' in the sense that they prescribe general norms of conduct, with real sanctions if breached which were applicable to thousands, indeed millions, of people."
[40] The CHO directions cannot be brought to an end or varied except by the CHO - s 362E. The CHO cannot delegate this power - s 362FA(2). In more than one case it has been held that the fact that the rule-maker can vary or amend the rules was an indication that the function had a legislative character. The analogy was with primary legislation. More recent cases have regarded this as a neutral factor in circumstances where the Acts Interpretation Act gives any rule‑maker power to amend or rescind rules made.[8] Regarding this factor together with that at (vi) in the list from Schwennesen, "cannot be varied or amended by the executive", and factor (v) in the list from Sea Shepherd, "the absence of executive control of the decision", I think that these are some indications that the decision to make a CHO directive is legislative. The fact that the power to make and revoke directions can only be exercised by the CHO, and not by the other officers of the executive who are to deal with public health emergencies (the chief executive, a deputy CHO, or an emergency officer) is, in the context of the PHA, of some significance because it marks the power of the CHO to give directions as a singular power not to be shared with the executive more generally.
[41] Another factor which I think is weakly supportive of the idea that the decision to make a direction is of a legislative character is that the decision is not subject to merits review in a tribunal. Were the decision subject to such a review, it would be a strong indication that it was administrative, not legislative. Here it is not, but, it must be said, nor are many administrative decisions.
[53] The applicants' submission continued that Part 7A of the PHA should be characterised as giving the CHO and emergency officers executive powers, for Part 7A expressly confers "additional powers for the COVID-19 emergency" on the CHO and emergency officers - s 362A(a) (my emphasis). Further, the power given to make directions at s 362B(1) is expressly given "to assist in containing, or to respond to, the spread of COVID-19 within the community"; that is, to managing its spread in the community.
[54] It was said that the power to make directions given by s 362B(2) was in relation to a limited range of matters, essentially to do with the movement of, and contact between, people. It was said that the wider power at s 362B(2)(e) should be construed ejusdem generis with the subject matter of subsections (a)-(d). For the purposes of this application, I accept that argument. All these matters were said to show that the power to give directions given by s 362B was a power to take executive action, not to legislate.
[55] In fact, as explained, I think that the power to give directions at s 362B is in contrast to the pre‑existing powers held by emergency officers and emergency officers (medical) under Chapter 8 of the PHA. I think it is also in contrast to new powers given by Part 7A to emergency officers. Division 3, Part 7A of Chapter 8 gives additional powers to emergency officers. The powers to give directions at s 362G, 362H and 362I are directions which must be given in writing directly to the persons concerned. They are, in my view, executive in nature and contrast with the CHO's power to make directions in the same ways as have been discussed at [52] above.
[56] The CHO is not by force of statute an emergency officer or an emergency officer (medical), although no doubt the Chief Executive of the Health Department could appoint him or her to either of those roles. Part 7A Division 2 is the only part of Chapter 8 that gives the CHO powers in a public health emergency, so in that sense the powers are not "additional". The powers given to the CHO are given in a separate Division of Part 7A. They are to make directions. There are no powers of a clearly executive kind such as those at ss 345, 347, 362G, 362H or 362I given to the CHO. The CHO may generally delegate his or her powers or functions under any Act to a deputy CHO - s 53AC HHBA. However, the CHO may not delegate the power to give a public health direction - s 362FA(2) PHA.
[57] I think that the legislative scheme, and that at Chapter 8, Part 7A in particular, provides the power for the CHO to make directions as a singular power, and that there is demarcation between, (i) that power and the other executive powers given by Chapter 8, and (ii) between that power and other powers given to the CHO.
[58] The directions given by the CHO are not subject to parliamentary supervision or disallowance. In Queensland Medical Laboratory v Blewett (above), the decision in question was whether or not to make a new schedule of pathology fees to the Health Insurance Act. If the decision was to make a new schedule, the schedule became part of the Health Insurance Act, ie., part of a piece of legislation. This, and the fact that the decision was subject to disallowance by Parliament, were very important factors in Gummow J's decision that the decision to make a new schedule was legislative. In fact, Gummow J's decision was that a decision not to make a new schedule (therefore not changing the Act, and not attracting a power of disallowance by the Parliament) would have been administrative.
[59] Here, there is no power for parliament to supervise or disallow the directions of the CHO. That is a relevant indication against the direction being legislative. However, such an absence is not fatal to a characterisation as legislative.[11]