The Queensland supreme court has thrown out the state’s Covid-19 vaccination mandate for paramedics and police, on the basis of the Human Rights Act.
Guardian Australia spoke to a range of human rights experts to understand the ramifications of Tuesday’s decision.
What does the decision mean?
It means 74 named applicants to the court, who are current employees of the ambulance and police services, cannot be fired or otherwise disciplined as a result of not following the vaccine mandate.
What was the basis for the decision?
There were essentially two different reasons for the decision, depending on whether applicants worked for the police force or Queensland health.
Senior judge administrator Glenn Martin ruled that police commissioner, Katarina Carroll, didn’t follow the right process under the Human Rights Act and “failed to give proper consideration to human rights relevant to those decisions. As a result, those decisions were unlawful”.
The court’s decision was even more technical with regard to the ambulance service. That application succeeded because the health service was unable to provide sufficient evidence to show that the order was a power contained in an employment contract. The ambulance service order was not unlawful, just ineffective.
Griffith University human rights law professor Sarah Joseph described it as a “procedural” rather than “substantive” breach of the act, and a narrow decision.
Is the decision final?
Not necessarily. It could be appealed in the supreme court of appeal. Both Queensland health and the Queensland police said on Tuesday they were considering their legal options.
How did this happen in the first place?
The applicants challenged two decisions in 2021 and 2022 by the commissioner of police, and the then director general of Queensland health, Dr John Wakefield, that staff must be vaccinated against Covid-19 or else face disciplinary action or even sacking. Both mandates were quashed, in December 2022 and September 2023, respectively.
After a 21-month wait, a joint judgment was handed down on Tuesday at the Queensland supreme court. It’s the first time a vaccine mandate has failed in court in Australia.
What does this mean for other states?
The decision is very narrow and based on the state Human Rights Act, which only applies in Queensland. It is also based entirely on the way Queensland decision-makers issued that specific mandate.
The only other state with a Human Rights Act is Victoria, which has a similar requirement for government to consider human rights when making decisions. The ACT also has a Human Rights Act.
Theoretically, lawyers in those jurisdictions could make out a similar case that their state decision-makers failed to consider human rights properly before imposing vaccination mandates.
Does it mean all vaccine mandates are illegal?
Definitely not.
In fact the court has explicitly ruled otherwise.
Queensland health has imposed all sorts of vaccine mandates on its staff for a very long time. Nurses, doctors, paramedics and even health volunteers have to be vaccinated against various diseases, ranging from tuberculosis to whooping cough, to keep their job. They still do and these rules are all still legal.
On Tuesday, the health minister, Shannon Fentiman, told media the decision did not affect the health directive imposed on the broader community of employees of Queensland health, including doctors and nurses, only employees of the ambulance service.
Martin was asked to rule that the mandate violated rights against discrimination, to equality before the law, against torture, to freedom of political thought and belief, to privacy, to life, to take part in public life and the right to liberty and security, among others. He ruled none of these rights were limited at all.
The only right that was impeded, he found, was the right not to be subjected to medical treatment without consent. Martin found public servants were coerced into vaccination because they feared loss of employment and income.
However, the state’s Human Rights Act does allow rights to be limited, the limits just need to be “demonstrably reasonable”.
Martin ruled that the restriction of that right was reasonable given the circumstances of the pandemic.
However, the act doesn’t just require a decision-maker to come to the right decision – they also have to do it the correct way, and document this process.
Some lawyers say if the police commissioner had done so, the court might have ruled a different way on the police element of the case.
Does it mean sacked police and paramedics can sue for compensation?
Billionaire businessman Clive Palmer – who says he provided millions for the successful case – said he would be “happy” to fund future legal action, potentially a class action lawsuit.
Lawyers for the police applicants also hinted at civil litigation in the future.
Human rights professor Sarah Joseph said she couldn’t predict how compensation claims would play out, but said “the chances of winning a litigation lawsuit against the government today are much bigger than they were yesterday”.
Benedict Coyne, who acted for many of the police service employees in the case, said the case would have a “significant impact” on others outside the group of litigants, including officers who were sacked as a result of the mandates.
What does this mean for the state Human Rights Act?
Human rights advocates have celebrated the outcome.
In a state without an upper house, Queensland has often been said to have an accountability deficit in its government.
It’s now clear the act is capable of acting as a check on the actions of governments.
Michael Cope, the president of the Queensland Council for Civil Liberties, said some elements of the judgment represented the first time sections of the Human Rights Act had been tested in the supreme court, blazing a precedent for future cases.
“This is a reminder to everybody that that is the law in this state and if you don’t do it, you can have your decision declared to be in breach of the Human Rights Act,” Cope said.
