After the Queensland ruling, will we see more legal challenges to COVID vaccine mandates?

This week, Queensland Supreme Court Justice Glenn Martin declared the state’s COVID vaccine mandate for police officers was unlawful. Martin also found the director-general of Queensland Health did not have the power to make vaccine mandates for ambulance service workers.

Those who are critical of vaccine mandates have been pleased by the decision. Clive Palmer, who funded the case, touted it as a “great victory” and One Nation leader Pauline Hanson said it was vindication for those who opposed vaccine mandates introduced around Australia during the pandemic.

But the ruling doesn’t mean vaccine mandates are inherently flawed. Here’s what the ruling actually found – and what this means for future legal challenges to vaccine mandates across Australia.

What was the case about?

A group of Queensland police employees, ambulance officers and a nurse initiated Supreme Court proceedings against, among others, the Queensland police commissioner Katarina Carroll and the then Queensland health director-general John Wakefield. The applicants sought a declaration that the vaccine mandates to which they were subjected were unlawful.

The mandates the police commissioner and director-general imposed were very similar. Each required employees of the police and ambulance services to receive doses of an approved COVID vaccine by a specified deadline.

The mandates rendered vaccination against COVID a condition of employment. Anyone who refused to be vaccinated could therefore be subject to disciplinary proceedings, including dismissal.

By the time the case went to trial, the mandates had already been revoked. This meant there were limited practical remedies available to the applicants. They had already held onto their jobs, at least temporarily – Martin made orders in the early stage of proceedings restraining the commissioner and director-general from dismissing any of the applicants from their jobs.

What did the court find?

When it comes to the broader impacts on policy, the main takeaways from the 115-page judgement are:

1. The police mandates were unlawful

The police commissioner failed to give proper consideration to relevant human rights that would be affected by the mandates. Martin found it was “more likely than not that the commissioner did not consider the human rights ramifications” of the mandates.

This does not mean there was anything wrong with the mandates themselves – the problems lay in the process.

2. The mandates affecting ambulance service workers were unlawful for a different reason

The director-general did not have the power to make the health mandates under employment and contract law.

The director-general claimed the employment contracts covering those who brought the case against the mandates contained an implied term that the director-general may give lawful and reasonable directions to employees.

However, the director-general did not provide sufficient evidence about the terms of the applicants’ employment contracts and therefore could not show the mandate was a reasonable direction.

3. Only one human right was limited by the mandates

Queensland has human rights legislation recognising, among other rights, a person’s right not to be subjected to medical treatment without full, free and informed consent (section 17(c) of the Human Rights Act 2019 (Qld)).

Martin concluded the vaccine mandate limited this right, in the sense that the consent was not “free”. However, that limitation was “reasonable and demonstrably justified” (or proportionate), as required by the act, in the context of the pandemic.

We can read this as a conclusion that it was acceptable for policymakers to place limits on consent to vaccination in the face of other pressing considerations created by the pandemic. Policymakers had to weigh up the risk of infection for their populations, including the risk of being infected by those providing essential services, and how best to keep their health and governance systems functioning, against the requirement that consent be full, free and informed.

In summary, the police commissioner failed to turn her mind to the human rights affected by her decision. The director-general made an oversight in failing to submit sufficient evidence to the court. But the requirement to consider human rights did not mean the mandates were unjustified.

What does this mean for policymakers?

There are lessons for policymakers in future pandemics: attention to detail is important when making and defending vaccine mandate policies. It is important to consider the people a vaccine mandate is going to affect directly.

The legal necessity to consider human rights in Queensland is only one example. Deep in the pandemic, the Fair Work Commission overturned a private-sector vaccine mandate imposed at a BHP site. The basis for this decision was that the mandate was not reasonable: BHP had not sufficiently consulted with affected workers as required under the Commonwealth Work Health and Safety Act 2011.

Considering and involving affected populations in the process is the right thing to do. It is also prudent for protecting vaccine mandates from legal challenges.

Will we see more legal challenges to mandates?

In the future, a vaccine mandate may be challenged on a range of technical or legal bases, unrelated to the mandate’s substance or legitimacy.

Previous legal challenges to Australian state and territory vaccine mandates have largely been unsuccessful, particularly in the discrimination and industrial relations contexts.

Two similar cases brought by police officers in Western Australia were unsuccessful (although both applicants have appealed). There is considerable breadth of powers and discretion afforded to the police commissioner by the Police Act 1892 (WA). This includes making directions to employees.

Only Victoria, the Australian Capital Territory and Queensland have human rights legislation, so similar challenges may only be possible in those jurisdictions.

Previous plaintiffs tried to challenge New South Wales’ vaccine mandates on the basis that they infringed the common law right to bodily integrity. They

.

This week’s decision in Queensland is a landmark case, but probably not for the reasons vaccine mandate opponents hope.

It will be instructive for policymakers seeking to protect vaccine mandates from legal challenge in the future. The public will benefit when this prompts more careful consideration of affected populations when imposing vaccine mandates.

But the decision is unlikely to be the death knell of workplace vaccine mandates.

Amy Thomasson is associate lecturer of law, The University of Western Australia. She is part of the Mandate Evaluation (MandEval) project, which is partially funded by the Medical Research Future Fund.

Katie Attwell is associate professor, The University of Western Australia. She receives institutional research funding from the Medical Research Future Fund (MRFF) for the Mandate Evaluation (MandEval) project which she leads. She has previously received research funds paid to her institution from Australian Research Council and the Government of Western Australia. She is a special advisor to the Australian Technical Advisory Group on Immunisation.

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