COVID-19 directives unlawful: the side effects of not properly considering human rights

In a landmark judgment handed down on 27 February 2024, the Supreme Court of Queensland declared that certain COVID-19 directives and policies requiring members of the Queensland Police and Ambulance Services to receive vaccines were unlawful in part because of a failure to properly consider human rights before issuing them.

The case involved a successful challenge to the lawfulness of two directions issued by the Police Commissioner in September and December 2021, and a policy issued by the Director-General of Queensland Health which applied to Ambulance Officers.

We have separately discussed the employment law implications of the decision. The decision also has broad application to all public entities in Queensland seeking to meet their human rights obligations.

Human rights obligations for public entities

Under the Human Rights Act 2019, all Queensland Government employees and agencies have two key obligations.

Firstly, they must properly consider human rights. Secondly, they must make decisions compatibly with human rights. Both obligations must be completed before a decision or action is made, otherwise it is at risk of a successful challenge on human rights grounds.

To "properly consider" human rights involves identifying all human rights which may be affected by a decision, and ensuring that any limitations are justified in accordance with section 13 the Human Rights Act.

Why the human rights obligations were not met

In relation to the two directives from the Police Commissioner, the Court held that, on the evidence before the Court, proper consideration did not take place, in part because key documents purporting to demonstrate human rights consideration were received or dated after the decisions were made to issue the directions.

In relation to the second obligation – to make decisions compatibly with human rights, which involves justifying any limitations on rights under section 13 of the Human Rights Act – the Court held that the only right which was limited by the directives and policy was section 17(c), that a person must not be subjected to medical or scientific experimentation or treatment without the person’s full, free and informed consent.

On this point, the Court held that the Police Commissioner and Director-General had demonstrated that any limitations on this human right were demonstrably justified, based on the evidence before the Court.

However, the failure to fulfil the first obligation was sufficient for the Court to make a declaration that the Police Commissioner's two directives were unlawful. The Court also found that the Director-General's policy was of no effect (but not on human rights grounds). The Court therefore restrained the Police Commissioner and Director-General from taking disciplinary action against officers for breaching those directives/policy.

The case also clarified other important aspects of the operation of the Human Rights Act:

• the making of policies and procedures relating to public service employees under statute or a common law power are unlikely to be a "private" act that is exempt from the human rights obligations under section 58(4) of the Human Rights Act;
• where a human right contains an element of "unlawfulness" (such as section 25 rights to privacy and reputation), that unlawfulness must arise independently of the Human Rights Act;
• where a human right contains an element of "arbitrariness" (such as section 25), that arbitrariness is not determined by reference to the balancing act in section 13, but involves a "general assessment of whether any interference extends beyond what is reasonably necessary to achieve the purpose being pursued";
• where a human right contains an element of "discrimination" (such as section 15 rights to recognition and equality before the law), discrimination is linked to the protected attributes in section 7 of the Anti-Discrimination Act;
• hesitancy or uncertainty about something will not be protected by section 20 rights regarding freedom of thought, conscience, religion and belief unless that hesitancy is sufficiently cogent, serious, cohesive and important.