Covid vaccine mandates for Queensland police and ambulance workers were “unlawful”, the state’s supreme court has found, with the bombshell ruling tipped to spark a wave of similar challenges.
Judge Glenn Martin on Tuesday ruled that Queensland Police Commissioner Katarina Carroll’s December 2021 order was “unlawful” under the Human Rights Act, and that Queensland Health Director-General John Wakefield’s vaccination requirement policy was “of no effect”.
The landmark decision resolved three separate lawsuits brought by 74 police officers, civilian staff and paramedics against the Queensland Police Service and Queensland Health for Covid vaccination mandates issued in 2021 and 2022.
The Police Commissioner and Director-General have been prevented from taking any further steps to enforce the orders, or from taking disciplinary actions against the applicants based on the failure to comply with the mandates.
“I have held that the Commissioner, in making the decisions the subject of contention, failed to give proper consideration to human rights relevant to those decisions,” Justice Martin said in his 115-page decision.
“As a result, those decisions were unlawful. Similarly, I have held that Dr Wakefield has not established that the direction he made is a term of the employment of the (Queensland Ambulance Service) applicants.”
In the case of Queensland Police, Justice Martin said there was “broad statutory power” to make directions which the Commissioner “considers necessary or convenient for the efficient and proper functioning of the police service” — but that such power was “not unlimited”.
Exercise of the power “must be assessed in the light of other factors” including “whether the direction is proportional to the problem it is intended to deal with” and “whether it needs to be considered in accordance with the provisions” of the Human Rights Act.
Justice Martin said Ms Carroll’s evidence about whether she gave “proper consideration to a relevant human right in making (the) decision” to issue the December 14 order was “vague and inconclusive”.
“She was reluctant to commit to having read particular documents, she frequently could not recall how she received information or what the information was, and she frequently evaded these issues by referring in a vague way to briefings, discussions, summaries and the like,” he said.
“I am not satisfied that the Commissioner has demonstrated that she gave proper consideration to the human rights that might have been affected by her decisions.”
Dr Wakefield, who quit his role last June, argued that the Queensland Ambulance Service mandate was not subject to the Human Rights Act as it was implied in all employment contracts that “an employer may give lawful and reasonable directions to employees”.
But the court rejected that argument, saying “the respondent cannot establish that the QAS direction was reasonable”, and “it follows that the direction did not fall within the category of directions able to be made pursuant to the implied term in the contracts of employment”.
“It has no force and the applicants are entitled to an injunction restraining the respondent from seeking to take any action upon any alleged contravention of the direction,” Justice Martin said.
Collectively, the applicants’ human rights not to be subjected to medical treatment without “full, free and informed consent” had been limited by the orders, which were made “unlawfully or ineffectively”.
“While acknowledging that consent is often accompanied by some form of pressure, where a person’s livelihood can be put at serious risk if consent is not given then that is sufficient to peel ‘free’ away from ‘full, free and informed’,” he said.
But he found the orders were reasonable, given the circumstances.
“The responsibility of an employer to consider the occupational health and safety of its employees is one of the responsibilities which must be taken into account in these circumstances,” he said.
“It follows, then, that actions taken which are designed to protect employees if not from actual infection, but at least from serious illness, also need to be taken into account … The balancing which needs to be undertaken with respect to those and the other matters referred to above is complicated by the fact that these directions were given in what was, by any measure, an emergency. It was further complicated by the fact that, at the time of giving the directions, the knowledge available about the virus, its variants, its virulence, and its transmissibility was limited and being added to on an almost daily basis.”
Billionaire Clive Palmer, who bankrolled the $3 million case, said he was “happy” to throw his money behind further legal challenges, including a possible class action.
“What’s more uncertain is the people who have died, the class action won’t do much for those people that have taken the vaccine and have perished,” he said outside the court, The Courier-Mail reported.
One Nation Senator Pauline Hanson described the ruling as an “important victory in the fight for freedom and human rights in Australia”.
“I said from the start these mandates were wrong,” she told the Senate on Tuesday.
“I introduced legislation in this parliament that would have made certain they were unlawful. With a couple of notable exceptions, the government, opposition, Greens, Jacqui Lambie and other independents refused to support my bill. You all got it wrong. I feel vindicated once again that I have got things right and I’m in tune with the Australian people. You didn’t care that people were being coerced into vaccination at risk of their jobs. You didn’t care the individual freedoms and rights you were supposed to defend and protect were under attack. You relished the power state governments were taking from their citizens. You cheered them on.”
Senator Hanson said the decision highlighted the need for a royal commission into the Covid pandemic.
Prime Minister Anthony Albanese’s Covid inquiry, announced in September, has been widely criticised for excluding key issues such as vaccination mandates and the role of state leaders from its terms of reference.
“The Prime Minister’s toothless inquiry must be abandoned,” Senator Hanson said.
“Only a royal commission can compel the secret advice that led to these unlawful vaccine mandates in Queensland.”
Legal experts told The Australian on Wednesday that the landmark ruling, which is likely to be appealed by the Queensland government, could pave the way for similar cases in other jurisdictions.
“There are other cases, based on similar grounds, similarly challenging the legitimacy of directions given during the pandemic,” Bond University associate law professor Wendy Bonython told the newspaper.
“This one is interesting because it is the first one to go through. This is the tip of the iceberg. There will be more of these cases to come.”
Margaux Parker, radio host and wife of NRL legend Corey Parker, reacted to the ruling with a furious spray on Instagram.
“Sorry to anyone who was left with NO choice!” she wrote.
“Due to the propaganda they pushed! I’ll also take apologies from anyone who reported me or condemned me for sharing ‘MISINFORMATION’! They told us it was safe and that you had to for the betterment of the community but guess what they LIED!”
Earlier this month, the largest global study of vaccine side effects to date confirmed the AstraZeneca, Pfizer and Moderna shots were linked to increases in heart, brain and blood disorders.
frank.chung@news.com.au