[1]

Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 (4 March 2024)

Johnston & Ors v Carroll [2024] QSC 2 | Case summary | Zoe

[24]

GENERAL CONRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - IMPLIED TERMS - GENERALLY -

where the Director General of the Department of Health issued a direction to Queensland Ambulance Service staff to be vaccinated against COVID-19 - where the Director General claims the direction was made under an implied contractual term - whether the direction was able to be made pursuant to the implied term of the contracts of employment

HUMAN RIGHTS - HUMAN RIGHTS LEGISLATION -

where directions were made requiring police and ambulance workers to be vaccinated against COVID-19 - where the applicants claim the respondents failed to give proper consideration to human rights relevant to the decision - whether the directions were unlawful and in breach of the Human Rights Act 2019 (Qld)

HUMAN RIGHTS - HUMAN RIGHTS LEGISLATION -

where directions were made requiring police and ambulance workers to be vaccinated - where applicants claim they are being discriminated against due to their political belief or activity - where applicants claim directions not compatible with right to recognition and equality before the law - where applicants claim they are being compelled to be vaccinated with a medicine that has potential life-threatening side effects

where applicants claim directions not compatible with right to life - where applicants claim that full, free and informed consent to medical treatment cannot be given if an individual must choose between vaccination and employment - where applicants claim directions not compatible with right to protection from torture and cruel, inhuman or degrading treatment - where directions included no exception for conscientious beliefs - where applicants claim the directions not compatible with right to freedom of thought, conscience, religion and belief - where applicants claim directions not compatible with right to take part in public life - where applicants claim directions not compatible with right to privacy and reputation - where applicants claim directions not compatible with right to liberty and security of person - whether directions compatible with relevant human rights

[250]

23 August 2021 - on the subject of "Workforce risks and vaccination of our workforce". In that memorandum he provided a brief historical overview of the pandemic and set out excerpts from reports by the Queensland Chief Health Officer, the World Health Organisation and the Commonwealth Department of Health among others. He made the following points:

(a) that it was necessary to assess the current risk and potential impacts of Covid- 19 on the QPS especially the increase in threat caused by the Delta variant;

(b) that the US National Center for Immunization and Respiratory Diseases had said that:

(i) the Delta variant is more contagious;

(ii) it might cause more severe illness;

(iii) the vast majority of hospitalisation and death caused by Covid-19 are in unvaccinated people;

(iv) unvaccinated people remain the greatest concern; and

(v) fully vaccinated people can spread the virus to others but appear to spread it for a shorter time;

(c) he summarised the effect of the information in this way:

(i) the risks to the workforce from Covid-19 and the Delta strain in particular are quite significant and would have a devastating impact on police personnel;

(ii) the risks can be significantly mitigated by the use of approved vaccines;

(d) he summarised his advice and recommendations in this way:

(i) the Commissioner of Police has the power to direct mandatory vaccination (dependent on the facts and circumstances at the time of giving the direction);

(ii) the Commissioner of Police must ensure as far as practicable the health and safety of the QPS workforce;

(iii) a mandatory direction by the Commissioner of police with exceptions for contraindications and genuine religious objections would not amount to unlawful discrimination;

(iv) a mandatory direction by the Commissioner of Police would fall within the scope of powers under the Police Service Administration Act;

(v) a mandatory direction by the Commissioner of Police would be compatible with human rights under the Human Rights Act;

(vi) such a direction can be an obligation in contracts for police recruits;

(vii) such an obligation can be made a condition of entry for police workplaces for non-police personnel such as contractors; and

(viii) a requirement can be made for all police personnel to provide proof of vaccination to ensure compliance with a mandatory direction.

[273]

All right. Now, can I ask you, then, please, to turn to page 256, which is the Human Rights Compatibility Assessment?---Yes.

Now, do you recall when you first were provided with this document? It's not dated, I can - - -?---Yeah.

- - - indicate?---It would have been at the time that we were having the discussion to make the direction.

All right. Well, do I take it from that answer that you can't recall when you first were provided with this document?---Not the exact date.

All right?---Yeah.

Was it the day that you made the direction?---The document may have - I can't recall. You know, the - it was - this was part of many discussions, many briefings, and I can't recall the exact date.

All right. But you tell his Honour, do you, that you had firstly received this document before you made the decision to issue Direction No. 12?---Yes.

And do you tell his Honour that you read this document before you made your decision to issue direction number 12?---Sorry, I'm just trying to think, because so much was happening. So whether I received the document. But I would have

30 The affidavit of Deputy Commissioner Smith of 16 November 2021.

31 The affidavit of Deputy Commissioner Smith of 10 March 2022.

been briefed several times throughout this entire period. So there's a lot of difference between actually, your Honour, receiving the document but getting constantly briefed about what's occurring. So the exact date of receiving the document would be a very different date to all of the information and the discussion and the briefings that I was having leading up to actually signing the document. So from August onwards, when we became well aware of vaccines and the protection of vaccines, a lot of information was brought to me. A lot of briefings took place, and a lot of - obviously, you know, documentation was prepared. Conversations happened often. So it wasn't a case, your Honour, where I would get a document and there were not any briefings beforehand. In fact, briefings were quite - quite extensive. They commenced with, you know, briefing the executive leadership team. And then I would see my deputies two, three times a week on many issues, but this as well. So the conversation was constant, but the signing of the documentation doesn't necessarily take place when the conversation does.

Commissioner, I'm going to ask the question again, and I'll ask you to direct yourself to answering the question - - -?---Yep.

- - - and not make speeches. Is it the case that you, firstly, received this document before you made the decision to issue direction number 12?---I can't answer that because I don't know the date I signed this document.

Well, you didn't sign this document, Commissioner?---Well, the date I received the document, sorry, in - in document format.

[780]

(a) There are two commonly used measures or "metrics" used to describe a virus:

(i) transmissibility - the ability of pathogens to pass from one person to another; and

(ii) virulence - the likelihood of disease caused by the passing of that pathogen. It is also used as a simple measure of the likely severity of a case.

(b) Since the initial identification and classification of COVID-19 in early 2020, numerous variants had emerged and circulated globally.

(c) A "variant of concern" is a variant of COVID-19 which demonstrates an increase in transmissibility, or more severe disease (for example, increased hospitalisations or deaths), or a significant reduction in neutralisation by antibodies generated during a previous infection or vaccination, or any combination of those matters.

(d) Professor Griffin described (in his report) the means of transmission in this way:

"7. Transmission occurs via small particles containing the virus that can be expelled from an infected person's mouth and/or nose when they cough, sneeze, speak, sing or even breathe. Another person can contract the virus when particles containing the virus that travel through the air are inhaled (or come into direct contact with the eyes, nose or mouth). These particles can only typically travel relatively short distances hence this process is referred to as short-range aerosol or short-range airborne transmission and why the virus spreads mainly between people who are in close contact with each other, for example at conversational distance.

8. In poorly ventilated and/or crowded indoor settings these particles can remain suspended in the air and/or travel farther than the typical conversational distance. This is often called long range aerosol or long- range airborne transmission.

10. Hence the setting most conducive to transmission is prolonged indoor close contact in poorly ventilated spaces."

(e) A person infected with COVID-19 may (for differing periods of time) exhale those particles which may then be inhaled by another person and, potentially, lead to transmission.

(f) One of the most important factors influencing transmissibility is the person's "peak viral load" and level of "viral shed". The term "viral load" refers to the amount of virus detectable in an individual's test samples - they being the samples obtained by tests such as the PCR and RAT tests. The term "viral shed" refers to the amount of virus that is being disbursed by an infected person, that

is, the shedding of the aerosolised particles that may transmit the disease to another person.

(g) A person with COVID-19 can shed the virus, for a short period of time (that period can differ from person to person) usually at about the time of the onset of symptoms but it is also possible for asymptomatic people to shed the virus and, thus, transmit the disease. It is only while people are "shedding" that they can transmit the disease to others. The likelihood that a particular person will transmit the disease to another person depends on several factors and is highly variable - those factors include the particular variant and any protective measures taken by those persons.

(h) The Delta strain was classified as a variant of concern by WHO on 11 May 2021 and became the dominant strain of COVID-19 by mid-2021. It became the dominant strain because it had a higher transmissibility than earlier variants. It was also a highly virulent strain.

(i) The Omicron strain was first reported on 24 November 2021 and was declared by WHO to be a variant of concern on 26 November 2021. The variant was present in Australia from about that time and became the dominant strain in mid-December 2021. It was the dominant global strain by the end of January 2022. Omicron peaked in Queensland on 18 January 2022 and began to decline from that time but was still circulating widely in the community.

[835]

[99] In the context of the procedural limb, that observation is self-evident. The substantive limb is more complex because the Court is determining the issue whether the impugned action was, or was not, compatible with human rights. It decides that question on the basis of evidence, which is not necessarily confined to that which the public authority may have relied upon in its own evaluation of whether the proposed action would be compatible with human rights. In a sense, the Court's task is neither judicial review nor merits review, but the determination of a question of mixed law and fact. The distinction between judicial review and merits review in this context is therefore not necessarily helpful.
[100] Some authorities also suggest that, in order to apply the correct degree of scrutiny without encroaching into the merits of the impugned decision, the Court should give 'deference', 'respect' or 'latitude' to the decision-maker. It will be apparent from our discussion of the procedural limb that we do not find these concepts helpful. As we have already stated in that context, the decision- maker's expertise and experience may be taken into account in the Court's assessment of whether the impugned decision is compatible with an applicable human right. The Court can give that expertise and experience such weight as is warranted in the particular circumstances of the case, without any preconception that they are to be given any particular deference, respect or latitude. But, in the end, the Court must decide for itself whether the public authority has acted incompatibly with human rights, and therefore unlawfully.
[101] To state the obvious, conduct of a public authority can be declared to be unlawful if it is incompatible with a human right - contrary to the substantive limb of s 38(1) of the Charter - even if the public authority gave proper consideration to that right in accordance with the procedural limb. It is not necessary for us to consider the circumstances in which conduct which is found to be compatible with a human right will be declared to be unlawful due to noncompliance with the procedural limb." (emphasis added, citations omitted)

Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 (4 March 2024)

Johnston & Ors v Carroll

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Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 (4 March 2024)

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Cases Cited (61)