Covid vaccine mandates ruled ‘unlawful’ by an Australian Supreme Court under Human Rights Act
By Rebekah Barnett: Dystopian Down Under
Covid vaccine mandates enforced on Queensland police and ambulance workers were declared ‘unlawful’ in a landmark Supreme Court ruling this week.
In a decision handed down on Tuesday, Justice Glenn Martin found the Queensland Police Commissioner Katarina Carroll’s direction for mandatory Covid vaccination, issued in December 2021, to be unlawful under the Human Rights Act.
A similar Covid vaccination order issued by the Director-General of Queensland Health at the time, John Wakefield, was determined to be “of no effect,” with enforcement of both mandates and any related disciplinary actions to be banned.
Justice Martin held that the Police Commissioner “did not consider the human rights ramifications” before issuing the Covid workplace vaccination directive within the Queensland Police Service (QPS).
While the Covid vaccination directive to Queensland Ambulance Service (QAS) workers was found to be lawful, Justice Martin said that the Director-General had failed to “establish that the direction he made is a term of employment of the applicants.”
Justice Martin chastised the Commissioner and the Director-General for their inflexibility in the implementation of vaccination directives and suggested that their actions were not properly supported by the evidence.
“Neither the Commissioner nor Dr Wakefield gave close attention to the possible range of solutions. Each was presented with a proposal for mandatory vaccination with little in the way of well-developed critiques of alternative means of reducing illness and infection,” stated Justice Martin in the decision.
Moreover, justifications offered by the Commissioner and the Director-General for the workplace vaccination mandates, were “taken out of context” or “not supported by the evidence,” while modelling relied upon by the Commissioner was in fact “nothing of the sort,” said Justice Martin.
Tip of the iceberg?
The decision, which resolved three lawsuits brought by law firms Alexander Law and Sibley Lawyers, is the “tip of the iceberg,” said Bond University associate law professor Wendy Bonyton.
Prof Bonyton told The Australian, “There are other cases, based on similar grounds, similarly challenging the legitimacy of directions given during the pandemic. This one is interesting because it is the first one to go through… There will be more of these cases to come.”
Australian businessman and founder of the United Australia Party, Clive Palmer, who reportedly contributed between $2.5 to $3 million towards funding the lawsuits involving 74 police officers, civilian staff and paramedics, said he is considering further legal action following yesterday’s win.
“We could look at the class action for the ambulance workers and the police workers who have been subjected to harassment by their colleagues at the police department on the direction of the government to try to drop this case,” he told the press outside the Brisbane Supreme Court after the decision was handed down.
Condemning the government for its “coercion and bullying,” Palmer paid tribute to the police and healthcare workers for their “extreme courage” in resisting the Covid vaccine workplace directives.
‘Unlawful,’ but not a breach of human rights
Human rights lawyer Peter Fam, of Sydney law firm Maat’s Method, praised the Supreme Court decision.
“This decision will force future employers and Government officials to properly consider human rights when implementing vaccine directions in future, at least in Queensland where there is a Human Rights Act which obligates them to do so,” he told Dystopian Down Under.
Fam noted that Victoria and the Australian Capital Territory have similar human rights legislation, but other States and Territories do not.
However, Fam cautioned that the Court decision has an “ominous” caveat.
“They won because the Commissioner did not appropriately consider the human rights advice she received. However, the Court also found that although each of the directions limited the workers’ rights to full, free and informed consent, (under Section 17 of the Human Rights Act), the limit was reasonable in all the circumstances.
“So, if the Commissioner could have proved that she had considered the advice she received regarding human rights, her workplace vaccination directives would likely have been considered lawful.”
Fam gave his full assessment of the Supreme Court decision in a video published to his Substack today.
In a Senate hearing on 1 February of this year, Fam testified that a range of human rights were violated by vaccine mandates and other aspects of Australia’s pandemic response, which he said warranted investigation in a Covid Royal Commission.
Queensland Health responds
The Queensland Health Minister, Shannon Fentiman, has responded to the Supreme Court ruling, saying that the Government is still considering its implications.
“The point that I want Queenslanders to know, is that his Honour did find that placing a limit on human rights around mandatory Covid vaccinations was not contrary to human rights, and in fact it was justified given that we were in the middle of a pandemic.”
Fentiman emphasised that the ruling did not find mandatory Covid vaccinations contrary to human rights, but rather that the directions had been issued unlawfully.
Of the QAS Covid vaccination mandate, Fentiman said, “It was lawful, and it was compatible with human rights, but there was insufficient evidence to demonstrate that it was a reasonable direction under the employment contract.”
Fentiman added that Queensland Health staff have “nothing to do with this case”.
Nurses and doctors still subject to mandates and disciplinary action
While the Queensland Police and Ambulance Services are now prohibited from enforcing Covid vaccine mandates or related disciplinary action, a spokesperson for the Nurses’ Professional Association of Queensland (NPAQ) advises that mandates remain in place for some nurses, midwives and doctors.
Even where mandates have been dropped, Queensland Health has come under fire for continuing to discipline and even fire healthcare workers as recently as January 2024 for failing to comply with vaccination directives issued in late 2021.
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President of the NPAQ, Kara Thomas, said that the Supreme Court ruling confirms the union’s position that “workers had human rights that needed to be considered.”
“We have nurses and midwives sitting at home during a workforce crisis and the healthcare system’s unlawful decisions are directly to blame,” said Thomas.
“We are currently consulting with our lawyers to determine what these two decisions mean for our Queensland members who were dismissed.”
Vice-President of the Australian Medical Professionals Society (AMPS), Dr Duncan Syme, called for the reinstatement of doctors who have been pushed out of practice due to “unlawful” vaccine mandates.
“Doctors who were mandated, resigned or retired early, should be immediately reinstated, compensated, and any professional misconduct charges related to challenging the mandates must be removed from their registration.”
“It’s high time we prioritise the well-being of patients using ethical evidence-based medicine over political-based directives,” he said.
Decision marks important precedent
The Supreme Court ruling has been touted as an important precedent as it highlights that human rights must be properly considered in the issuing and implementation of workplace directives.
Prior to this ruling, lawsuits challenging vaccine mandates have not been successful in the Australian courts, with Judges tending to side with the Government and employers who enforced the mandates on employees.
One well-known case is Kassam V Hazzard (2021), which challenged New South Wales (NSW) Health Minister Brad Hazzard’s vaccine mandates and movement restrictions. The challenge, brought by Tony Nikolic, of Sydney law firm Ashley, Francina, Leonard & Associates, was dismissed, with Justice Beech-Jones ruling that public health orders were legally valid.
Responding to the Supreme Court ruling, Nikolic told Dystopian Down Under, “The Queensland decision is a vindication of human rights and the importance human rights possess in Australian jurisprudence.”
“It is most unfortunate that the approach taken by the NSW Supreme Court in the case of Kassam v Hazard (2021) assumed a narrow approach on human rights protections under the common law,” said Nikolic, noting that unlike Queensland, NSW, has no bill of rights or Human Rights Act.
“In circumstances where former Health Minister Greg Hunt indicated that this was the world’s largest clinical trial, the Courts should have provided greater protections for human rights. This decision highlights the need for an Australian Human Rights Act or Bill of Rights.”
The historic Supreme Court ruling comes after another landmark decision in the South Australian courts in January, in which the Department of Child Protection was ordered to pay compensation to a youth worker who developed pericarditis after getting a Covid booster under a workplace vaccination directive.
*Correction: An earlier version of this article stated that Clive Palmer funded the lawsuits on behalf of the 74 applicants. This has been updated to more accurately reflect that Palmer partially funded the lawsuits, but not the whole cost.
