Winn v State of Queensland

Public Sector Act 2022 (Qld) s 103, s 130

Queensland Government Directive 04/24: Independent Medical Examinations cl 8

Castles v Secretary of Department of Justice [2010] VSC 310; (2010) 28 VR 141

Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16

Goodall v State of Queensland [2008] QSC 319

Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480

Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162

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

Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97

Minister for Immigration and Border Protection v WZARH [2015] (2015) 256 CLR 326

Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273; 9 QR 250

P v Register of Firearms (Administrative Review) [2018] ACAT 20

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Schubert v State of Queensland (Queensland Health) [2024] QIRC 128

State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3

Wirth v Mackay HHS & Anor [2016] QSC 39

[1] Mr Winn works as an Administration Officer within the Brisbane Magistrates Court for the Queensland Department of Justice and Attorney-General ('DJAG'). He was directed by Ms Angela Moy (A/Deputy Director-general, Courts and Tribunals) to attend an independent medical examination ('IME') after he disclosed some medical issues in a response to a disciplinary process. I will refer to that earlier decision by Ms Moy as the 'IME Decision'.

[2] Mr Winn sought an internal review of Ms Moy's IME Decision. The resulting review decision by Ms Sharon Bailey (Deputy Director-general, Portfolio Governance and Executive Services), dated 6 March 2025, upheld the IME Decision. It is that second decision ('Review Decision') that is the subject of this appeal.

[3] There are several principles that I have been guided by in deciding Mr Winn's appeal:

(a) The Commission cannot re-hear the original source of dispute that is the subject of the relevant decision;[1]

(b) Deciding whether a decision was fair and reasonable involves considering whether the conclusions reached by the decision-maker were open to be reached;

(c) It is not the Commission's role to disturb a decision based on inferences that were open to be drawn, even if the Commission might have reached a different conclusion;[2]

(d) Only where the review of the relevant decision reveals conclusions or inferences drawn that were not reasonably open to be drawn on the material before the decision-maker is the decision prone to being overturned on appeal;[3]

(e) The words 'fair and reasonable' must be interpreted according to their ordinary meaning. That should not be confused with the strict legal test of reasonableness in the sense of the lawfulness or legality of a decision;[4] and

(f) Mere disappointment with the outcome of a relevant appealable decision is not enough to establish it was not fair and reasonable.[5] There must be some sort of practical injustice in the relevant decision before an appeal of this nature can succeed.[6]

What are the grounds on which Mr Winn appeals the review decision by Ms Bailey?

[4] Mr Winn appeals on two bases. First, the Review Decision was unlawful because DJAG failed to meet its obligations under the Human Rights Act 2019 (Qld) ('HR Act'). Second, because the Review Decision was not fair and reasonable on the basis that the requirements of clause 8.1 of the Queensland Government Directive 04/24: Independent Medical Examinations ('the Directive')[7] about IMEs were not met.

Appeal Ground 1 - proper consideration of Mr Winn's relevant human rights

[5] Mr Winn argues that pursuant to the HR Act,[8] DJAG needed to give 'proper consideration' to his relevant human rights and that included 'identifying the human rights that may be affected by the decision'. Mr Winn concedes that this must be approached in a commonsense and practical manner[9] but argues that consideration must be more than superficial[10] and requires the decision maker to 'seriously turn his or her mind to the possible impact of the decision on the person's human rights.'[11]

[6] Mr Winn's argument under this first ground of appeal is (in summary) this: when seeking a review of Ms Moy's IME Decision, he expressly raised this issue of his human right not to be subjected to medical treatment without full, free and informed consent. That is the right stated in section 17(c) of the HR Act. Mr Winn points to Ms Bailey's statement in the Review Decision that the purpose of the IME was to advise DJAG on how to handle Mr Winn's condition and was not 'treatment'. Mr Winn argues that this statement amounted to expressly rejecting the proposition he had advanced, that section 17(c) of the HR Act was engaged or limited by the IME Decision.

[7] The primary argument in this ground of appeal is that directing Mr Winn to unwillingly attend an IME breached his right under section 17(c) of the HR Act. Essentially, the argument hinges on whether attending an IME amounted to Mr Winn being subjected to 'medical treatment' within the meaning of that phrase as it appears in section 17(c) of the HR Act.

[8] When interpreting the phrase 'medical treatment' as it appears in section 17(c) of the HR Act, I have focused my attention on the ordinary or natural meaning of that phrase, having regard to context taken from section 17 and the HR Act more broadly. The HR Act's purpose[12] is also an important consideration that I have borne in mind when doing this.[13] I am mindful too that the meaning I arrive at needs to be reasonably open on the natural and ordinary meaning of the words read in the context in which they appear.[14] On what constitutes the ordinary or natural meaning of a word or words, dictionaries are of use because they give a good indication of the ordinary or natural meaning that society attributes to words. Specific judicial considerations of the phrase can also assist, depending of course on context.

[9] The phrase 'medical treatment' is not defined in the HR Act. As to context, the phrase appears alongside others in section 17(c). The exact wording is '...subjected to medical or scientific experimentation or treatment'. I have had regard to the context derived from those other words when considering what the phrase 'medical treatment' means here. The four forms of protection in section 17(c) are from medical experimentation, medical treatment, scientific experimentation and scientific treatment.

[10] The rest of section 17 needs to also be considered. It protects a person from being subjected to torture or treated or punished in a cruel, inhuman or degrading way. These indicate to me a context of serious levels of interference with a person.

[11] As to the ordinary or natural meaning of the word 'treatment', the Macquarie dictionary relevantly defines it as: 'the application of medicines, surgery, psychotherapy, etc., to a patient to cure a disease or condition: asthma treatment.'[15] The Shorter Oxford English Dictionary relevantly defines 'treatment' as 'the application of medical care or attention to a patient, ailment, etc.'[16]

[12] Mr Winn says that 'medical treatment' includes diagnosis such that would occur during an IME. He cites a decision of the Australian Capital Territory Civil and Administrative Tribunal, P v Register of Firearms.[17] In that decision, the Tribunal determined that when the applicant had been directed to undergo an assessment to produce a report, he was being made to create a document, rather than produce one already in existence. The latter was within power, the former not. That was the deciding point of that case and discussion about what constitutes 'medical treatment' was simply to address arguments that the case did not actually turn on in my opinion.

[13] Because Mr Winn has relied heavily on the observations of the Tribunal in the P v Register of Firearms decision, I have given careful consideration to it. The Tribunal considered a very similar provision within the Australian Capital Territory's equivalent Human Rights Act.[18] The Tribunal cited the above Macquarie Dictionary definition as well as the broader one: 'an action or behaviour towards a person.' The Tribunal relevantly held that a liberal or broader view of the term 'treatment' should be adopted. The principal reason for doing so seems to have been affording a liberal, not technical or narrow construction of rights-based beneficial legislation.[19] The Tribunal opined that it seemed appropriate to take the broader view that assessing and diagnosing patients did constitute 'treatment'. That was on the basis that doing so was a part of the overall medical intervention and would often constitute, in itself, a significant invasion of that person's personal interests. The Tribunal reasoned that assessments that include taking blood or even simple alcohol testing for criminal offences were medical procedures, even if they were designed to only gather information, rather than being part of a curative process.

[14] There are several reasons why I am not persuaded by Mr Winn's submissions about P v Register of Firearms:

(a) First, the relevant passage of the decision was obiter dictum, which Mr Winn appropriately concedes. It was a discussion of a matter the parties seem to have argued about but not part of the essential reasoning of that case. The essential reasoning of that case was the finding that the request for a medical assessment to produce a report was beyond power, found to only relate to requiring production of documents already in existence;

(b) Second, I do not accept Mr Winn's submission that just because diagnosis or assessment is an essential precursor to the more interventionist acts of applying medicines, therapies, surgery, etc means that the assessment step becomes part of, or is part of, the entire process by definition. The two are very separate in my opinion. The fact that one must usually occur (or should) before any reasonable prospects of success can be expected in the other does not make them one and the same;

(c) Third, in my opinion, the ordinary meaning of the word 'treatment' does not include diagnosis or assessment stages that often precede it. Even where an assessment involves some form of medical procedure, such as taking blood samples, that does not mean it too becomes part of, by definition, the active process of applying medicines, surgery, therapies, etc. One is aimed at understanding the issue, the other is aimed at curing or managing it. By way of illustration, I do not accept that a police officer taking a saliva sample from a driver at a roadside drug-driving test could be considered engaging in the 'treatment' of any addiction in the ordinary or natural meaning of that word. Nor do I accept that just because a medical procedure takes place for the purposes of an assessment, the assessment becomes part of the person's 'medical treatment' by definition. The relevant phrase here is 'medical treatment', not 'medical procedure'; and

(d) Fourth, and related to the third, even though beneficial rights-based legislation like the HR Act should be interpreted liberally, the exercise must still result in a meaning that is reasonably open on the natural and ordinary meaning of the words when read in the context in which they appear. In my view, the relevant right protected by section 17(c) is the right not to be subjected to personal interferences like the application of medicines, curative therapies, surgery, etc without full, free and informed consent. Section 17(c) does not include a right to not be assessed by way of an IME in my opinion.

[15] I conclude that it was open to Ms Bailey to find that the IME Decision did not encroach on Mr Winn's section 17(c) HR Act right because, I accept, the IME Decision did not require Mr Winn to undergo 'medical treatment'. On that basis, I reject Mr Winn's first ground of appeal. In my opinion, a direction to attend an IME is not a direction to be subjected to 'medical treatment' within the meaning of that phrase as it is used in section 17(c) of the HR Act.

[16] Even so, Ms Bailey did actually give consideration to Mr Winn's section 17(c) HR Act human rights. Ms Bailey expressly stated in the Review Decision that she had done so. First, where Ms Bailey stated that she had carefully considered all of the material that was before Ms Moy and had regard to Mr Winn's reasons stated for seeking the review. Ms Bailey subsequently observed that that included the claim that Mr Winn's human rights had not been considered.

[17] Ms Bailey also gave consideration as discussed above where she came to the conclusion that an IME did not actually involve being subjected to 'medical treatment'.

[18] Further, under the heading 'Human Rights consideration', Ms Bailey stated that she had considered Mr Winn's human rights and concluded that any limitation on those rights was demonstrably justified. Ms Bailey stated that to be the case based on the 'public interest in ensuring the safety and wellbeing of employees of the Department (including yours and your colleagues) and that your fitness for duty and any adjustments required is properly ascertained.' (my emphasis)

[19] I have highlighted that last passage of words because it clearly demonstrates that Ms Bailey did in fact give proper consideration to Mr Winn's section 17(c) HR Act right. Ms Bailey had said earlier in the Review Decision that the purpose of sending Mr Winn to an IME was to take advice from a properly informed and qualified expert to 'inform the chief executive when determining how best to support an employee to maintain their employment where reasonably practicable.' That information derived from the IME, even if the process limited Mr Winn's section 17(c) human right, was clearly for the purpose of ensuring Mr Winn's fitness for duty and understanding any adjustments required. That is how Ms Bailey phrased it when weighing up whether any human right was limited. Ms Bailey concluded that such limitation was justified having regard to the need to ensure Mr Winn's (and others') safety, his fitness for duty, and ascertaining any adjustments that may be warranted.

[20] On that basis, even if an IME is 'medical treatment', I find that Ms Bailey did give proper consideration to Mr Winn's section 17(c) HR Act right. In coming to that conclusion, I am influence by Emerton J's observations as cited with agreement by his Honour, Martin SJA in Johnston[20] (my emphasis):

[185] ... Proper consideration need not involve formally identifying the 'correct' rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over- zealously by the courts.

[186] While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person's human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.

[21] In my opinion, it is clear that Ms Bailey understood the section 17(c) HR Act right and how, if she was wrong about the IME not being 'medical treatment', that right would be limited by Mr Winn being directed to attend an IME. Ms Bailey weighed that up and determined the limitation was justified if that was the case. The justification was, she stated, the benefits to Mr Winn and others in taking advice from a doctor about Mr Winn's fitness for duty and any adjustments that may be advised. In my opinion, to borrow from his Honour Emerton J's words, this is evidence that Ms Bailey seriously turned her mind to the possible impact of her decision on Mr Winn's section 17(c) right and the countervailing interests and obligations she identified. Namely, ensuring Mr Winn's fitness for duty, his safety and that of his colleagues, and ascertaining what adjustments might be advised by someone who was sufficiently informed and properly qualified to do so.

[22] To conclude, this ground of appeal fails for two reasons. First, the IME direction was not a limitation on the section 17(c) HR Act right in my opinion. Second, even if it was, Ms Bailey did understand and give that possibility proper consideration finding that if that were so, the limitation was justified in the circumstances.

Appeal ground 2 - Were the requirements of clause 8.1 of the Directive not met?

When deciding whether to require an employee to submit to a medical examination in accordance with section 104 of the Act, a chief executive must consider:

(a) whether there is a more appropriate option in the circumstances to attempt to resolve the employee's unsatisfactory performance or absence. This must include consideration of legislative obligations relating to reasonable adjustment and obligations under the Workers' Compensation and Rehabilitation Act 2003. This may also include positive performance management or seeking the employee's consent to obtain information from the employee's treating doctor to inform further discussions about the work performance or absence, or a graduated return to work

(b) whether the conditions in sections 103(a) and (b) of the Act have both been met.

[24] This ground of Mr Winn's appeal focuses on the obligation to have considered 'more appropriate options.' It also focuses on the potential that there can be, not 'must be' in my opinion, consideration of alternatives like performance management or seeking information from the employee's treating doctor.

[25] In the Review Decision, Ms Bailey stated that she had had regard to the Directive and, amongst other things, 'your reasons for seeking the review, i.e. ... Ms Moy failed to properly consider reasonable alternatives to making the [IME] Decision , such as positive performance management, or seeking your consent to obtain information from your treating doctor to inform further discussions.' Ms Bailey turned to that point on page 4 of the Review Decision. That was after she discussed in some detail Ms Moy's findings, which she agreed with, that Mr Winn had admitted to much of the alleged behaviour and sought to explain or defend it by referring to the medical issues cited in the letter from his treating doctor.

[26] Ms Bailey observed that that letter from Mr Winn's doctor was in hand at the time Ms Moy made the IME Decision. Ms Bailey expressly considered the appropriateness of Ms Moy's conclusions and agreed that where a disciplinary process is on foot, and the unsatisfactory performance relates to conduct that offends the relevant employee code of conduct, then performance management processes were neither necessary nor appropriate. Ms Bailey also agreed that with the detailed information from Mr Winn's treating doctor in hand, it was not necessary to seek further information from that doctor before directing Mr Winn to attend an IME. Ms Bailey also gave careful consideration to whether the conditions in sections 103(a) and (b) had been met and concluded that they had been.

[27] All of those conclusions were open to Ms Bailey to make in my opinion. She drew those conclusions from her assessment of Ms Moy's reasons for deciding that neither performance management nor seeking further information from Mr Winn's treating doctor were appropriate options to directing an IME in those circumstances. Mr Winn disagrees obviously. However, I see nothing unfair or unreasonable in Ms Bailey's conclusions and I therefore reject this ground of the appeal.

[28] I should add that on my assessment, it appears to me that clause 8.1 of the Directive was not breached in any way. The requirement is that there be consideration of alternatives and that the conditions in sections 103(a) and (b) had been met. Ms Moy did give consideration to all of those matters. That resulted in conclusions that were supported by the circumstances, as I have outlined above. Ms Bailey considered that and found no fault with it. That was a finding open to Ms Bailey to make in my opinion.

[29] For the forgoing reasons, each of the grounds of appeal fail. It was open to Ms Bailey to conclude, in agreement with Ms Moy, that the IME Decision did not limit Mr Winn's section 17(c) HR Act human right. Ms Bailey also gave consideration to whether, if such a limitation did result from the IME Decision, it was justified in the circumstances. Her conclusions on that consideration were open to be drawn in my opinion. There was no breach of clause 8.1 of the Directive either. The appeal must therefore be dismissed and I order accordingly.

[1] Goodall v State of Queensland [2008] QSC 319 [5], cited by Dwyer IC in Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480 [7].

[2] State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3 [30]; Schubert v State of Queensland (Queensland Health) [2024] QIRC 128 [8].

[3] Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97 [155].

[4] Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16.

[5] Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162 [82]-[83] [85] citing Minister for Immigration and Border Protection v WZARH [2015] (2015) 256 CLR 326 [35]-[36] [57] [61]; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1.

[6] Ibid [79], citing Wirth v Mackay HHS & Anor [2016] QSC 39.

[7] Queensland Government Directive 04/24: Independent Medical Examinations ('Directive').

[8] Human Rights Act 2019 (Qld) s 58 (1) (b).

[9] Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Whitthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of Queensland Police Service) [2024] QSC 2 ('Johnston') [283] - [248].

[10] Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273; 9 QR 250 [80].

[11] Castles v Secretary of Department of Justice [2010] VSC 310; (2010) 28 VR 141 [185]-[186].

[12] Human Rights Act 2019 (Qld) s 3.

[13] Herzfeld & Prince_, Interpretation_ (Thomson Reuters, 3rd ed, 2024) [1.150] ('Interpretation').

[14] Ibid [1.160] citing Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 305 (Gibbs CJ), 320 (Mason and Wilson JJ); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 [11] (French CJ, Kiefel and Bell JJ) [76] [79]-[80] (Gageler J); Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54; (2017) 263 CLR 551 [52] (Kiefel CJ, Keene, Nettle and Edelman JJ); Disorganized Developments Pty Ltd v South Australia [2023] HCA 22; (2023) 97 ALJR 575 [15] (Kiefel CJ, Gageler, Gleeson and Jagot JJ; Steward J agreeing).

[15] Macquarie Dictionary (online at 27 January 2026) 'treatment' (def 3a).

[16] Shorter Oxford English Dictionary (5th ed, 2003) 'treatment' (def 3a).

[17] P v Register of Firearms (Administrative Review) [2018] ACAT 20.

[18] Human Rights Act 2004 (ACT) s 10 (2) which says 'no-one may be subjected to medical or scientific experimentation or treatment without their free consent.'

[19] Citing Brennan J's judgment in Waters v Public Transport Corporation [1991] HCA 49.

[20] Johnston (n 9) [284] citing Castles v Secretary of Department of Justice [2010] VSC 310; (2010) 28 VR 141 [185]-[186].