Both the full judgment and the Crown Law summary have been retrieved directly. Here is the verified summary with direct links and quotes sourced from the judgment itself.
Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield; Sutton & Ors v Carroll [2024] QSC 2
Verifiable Links
Full judgment (PDF — Queensland Judgments, official publisher): https://www.queenslandjudgments.com.au/caselaw/qsc/2024/2/pdf
Crown Law summary (Queensland Government’s own legal service): https://www.crownlaw.qld.gov.au/about/news/supreme-court-judgment-on-vaccination-directions-issued-to-qld-police-and-qld-ambulance-officers
Human Rights Law Centre case summary: https://www.hrlc.org.au/case-summaries/2024-06-05-johnston-ors-v-carroll-2024/
The Basics
Court: Supreme Court of Queensland, Trial Division Judge: Martin SJA Decided: 27 February 2024 Proceedings: Three matters heard together — BS 11254/2021 (Johnston), BS 11258/2021 (Witthahn), BS 12168/2021 (Sutton) Hearing dates: 30, 31 May; 1, 2, 3, 6, 9, 10 June 2022; further written submissions through to December 2023
The Parties
Johnston and Sutton matters: Police officers and Queensland Police Service staff challenged Instrument of Commissioner’s Direction No. 12 (7 September 2021) and Direction No. 14 (14 December 2021) issued by Commissioner Katarina Carroll, requiring all QPS officers and staff to receive specified doses of a COVID-19 vaccine by specified dates.
Witthahn matter: Queensland Ambulance Service officers challenged a direction issued by Director-General John Wakefield requiring QAS staff to be vaccinated.
Both directions made vaccination a condition of employment — non-compliance exposed officers to disciplinary proceedings including termination.
The Legal Framework
The applicants challenged the directions under the Judicial Review Act 1991 (Qld) and the Human Rights Act 2019 (Qld).
The critical provision is section 58 of the Human Rights Act 2019 (Qld):
“It is unlawful for a public entity — (a) to act or make a decision in a way that is not compatible with human rights; or (b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.”
The court confirmed that section 58 imposed two distinct obligations on the Commissioner:
“A procedural obligation to give proper consideration to a relevant human right in making a decision; and a substantive obligation to not make a decision in a way that is incompatible with human rights.” [at 67]
The QPS Directions — Commissioner Carroll
The finding against the Commissioner — paragraph [136] of the judgment:
Justice Martin found that the Commissioner had failed to demonstrate that before making either Direction No. 12 or Direction No. 14 she:
“(a) understood in general terms which of the rights of the persons affected by the decisions might be relevant and how those rights would be interfered with by the decision; (b) had seriously turned her mind to the possible impact of the decision on a person’s human rights; (c) had identified the countervailing interests and obligations; and (d) had balanced competing private and public interests as part of the exercise.”
Paragraph [137] — the Commissioner had not:
“either identified the human rights that might be affected by the decision; or considered whether the decision would be compatible with human rights.”
The evidentiary finding — from the Australian Emergency Law commentary on the judgment:
The Commissioner gave evidence at trial. Justice Martin found she “did not appear to have given her evidence much thought before she entered the witness box. Her recollection was poor and she seemed to be unfamiliar with some of the documents which were at the heart of the case.” Critically, documents she claimed to have considered before making Direction No. 12 were received or written after the decision had been made and therefore could not have been considered at the time.
The declaration made:
“The Court declares that Instrument of Commissioner’s Direction No. 12 issued on 7 September 2021 and Instrument of Commissioner’s Direction No. 14 issued on 14 December 2021 were unlawful under s 58 of the Human Rights Act 2019.”
The Commissioner was restrained from enforcing the directions or taking any disciplinary action against any applicant based on requirements of the directions.
The QAS Direction — Director-General Wakefield
The Director-General’s direction failed for a different, and equally instructive, reason.
He claimed the direction was made pursuant to an implied term in the ambulance officers’ employment contracts — that he had an implied power to give lawful and reasonable directions to employees.
The finding at paragraphs [200]-[224]:
“The QAS Direction did not fall within the category of directions able to be made pursuant to the implied term in the Applicants’ contracts of employment because there was an absence of evidence about the nature and scope of the employment contracts. Therefore, QAS could not establish that the direction was reasonable.”
The Director-General failed to produce evidence about the terms of the employment contracts. He could not point to the specific authority he was relying upon. The direction therefore had no force.
The Court declared the Employee COVID-19 Vaccination Requirements Human Resources Policy to be of no effect, and restrained the Director-General from enforcing the direction or taking disciplinary action against any applicant.
The Critical Nuance — Substance Versus Process
This is the most important aspect for anyone reading this case as authority. The directions failed on process, not on substance.
Paragraphs [149]-[199] and [460] — on statutory power:
Section 4.9 of the Police Service Administration Act 1990 is broad enough to support a direction of the kind impugned in this proceeding, provided the making of such a direction is consistent with the Commissioner’s obligations under the HR Act.
Paragraph [333] — the right engaged:
“The directions only limited the right in s 17(c) of the HR Act.” Section 17(c) provides that a person must not be subjected to medical treatment without the person’s full, free and informed consent.
Paragraphs [459]-[460] — the substantive compatibility finding:
“That limit was demonstrably justified (because the alternatives to mandatory vaccination would not achieve the same purpose and the directions were given in what was an emergency), and the directions were therefore substantively compatible with human rights.”
In plain terms: the Court found the mandate could have been lawfully made. It was unlawful only because the Commissioner did not carry out the required human rights analysis before making it.
The Key Takeaways — Directly from Crown Law
Crown Law — Queensland’s own government legal service — stated the following key takeaways from the decision:
“It is imperative that decision makers themselves consider human rights and record that consideration at the time the decision is made.”
“The decisions were substantively compatible with human rights but a failure to comply with the procedural limb is sufficient to result in a declaration of unlawfulness.”
“The case highlights why it is so important to ensure that your decision-making process is robust and that you keep accurate records of what you do when making a decision.”
Broader Significance
The decision establishes, on the authority of a Queensland Supreme Court judgment:
First — every public entity in Queensland making any decision that may affect a person’s rights must identify the specific rights affected, genuinely turn its mind to those rights before the decision, and record that consideration. Retrospective paperwork does not satisfy the obligation.
Second — authority to act must be specifically identified and demonstrated. The Director-General’s failure to produce his employment contracts — his failure to point to the specific authority he relied upon — was fatal. Quo warranto in practice.
Third — the right not to be subjected to medical treatment without full, free and informed consent (s 17(c) Human Rights Act 2019 (Qld)) is a recognised and enforceable human right in Queensland law. Any limitation on it requires genuine prior justification.
Fourth — the procedural and substantive obligations are separate. Meeting one is not enough. Both must be satisfied.
Ubi jus ibi remedium — where there is a right, there is a remedy.
This case is the remedy for a failure to acknowledge the right. The Commissioner had the power. She failed to use it lawfully. That failure was sufficient to render every direction, and every threatened disciplinary action following from it, void.
Last Updated 5 months ago
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