Don't you forget about me – mandatory COVID-19 vaccination directions

It is a Tuesday morning; you pick up your phone and open your favourite news outlet (Instagram or X (Twitter) for those millennials and Gen Z); you prepare yourself to be struck with news articles on the Formula 1 Red Bull Christian Horner scandal, the housing crisis, cost of living, natural disasters and the start of the 2024 NRL and AFL seasons. The thought of anything COVID-19 related is in the dim and distant past. However, as a recent Supreme Court of Queensland decision shows, the fallout from the unprecedented pandemic is not done with the news headlines just yet.

Johnston & Ors v Carroll (Commissioner of the Queensland Police) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 is a case which considered the lawfulness of mandatory vaccinations for the Queensland Police Service (QPS) employees (pursuant to two directions issued under the Police Service Administration Act 1990 – QPS Directions) and Queensland Ambulance Service (QAS) employees (pursuant to a direction by Dr Wakefield to approve the mandatory vaccination requirement in the Employee COVID-19 Vaccination Requirements: Human Resources Policy – QAS Direction).

If you have only caught popular media on this case, you could be forgiven for thinking that the decision only considered the QPS Commissioner's evidence and the decision-making process for the QPS Directions. While that was a key part of the case, dive a little deeper and you will see that the Supreme Court made a number of informed findings regarding the mandatory vaccination and its limits on human rights (you can read a further discussion on the decision-making process required when considering an employee's human rights here).

For employment law enthusiasts, the consequences in Johnston, Witthahn and Sutton are clear for public sector employers who are, by statute, subject to the application of Queensland's Human Rights Act 2019 (HRA) and the requirement to consider whether a decision is compatible with human rights. But where does this leave our private sector employers? One could argue that the implications of the Johnston, Witthahn and Sutton case may be useful to private sector employers facing a challenge to a reasonable and lawful COVID-19 mandatory vaccination direction or for that matter, a direction about any number of things, particularly those made in emergent situations with identified health and safety ramifications.

The unlawfulness of the QPS and QAS Directions

Before a discussion on human rights, it is necessary to briefly highlight the technical findings regarding the unlawfulness of the QPS and QAS Directions.

In the case of Johnston and Sutton, the QPS Directions were made in accordance with a statutory power. The Supreme Court found the QPS Directions were unlawful due to a failure by the QPS Commissioner to consider the human rights at the time of making the QPS Directions.

In the case of Witthahn it was argued that the QAS Direction was a reasonable and lawful direction made as an implied term pursuant to the QAS employees' employment. However, the Supreme Court found that the QAS Direction was not reasonable. While the QAS correctly considered the impact on human rights at the time of making the QAS Direction, the QAS produced no evidence before the Supreme Court regarding the general provisions of the instrument governing the relationship of the employees covered.

Where no information was available on the employment arrangements for QAS employees, there was no evidence about the nature and scope of employment available for the Court to consider whether the QAS Direction was reasonable; the only finding that could be made was the QAS Direction was not reasonable.

However, while the finding ultimately went against the employer, there are some good takeaway messages that will assist both public and private sector employers manage and implement directions moving forward.

How to address human rights

Human rights are inherent to all human beings.

While a private sector employer is not required to consider the application of the HRA in making a direction that effects its employees (ie whether a decision is compatible with human rights), it is possible that an employer's direction will impact human rights and that could be used as a basis to challenge the reasonableness and lawfulness of an employer's direction.

Leaving aside that the Supreme Court found the QPS and QAS Directions were unlawful on a technical point, the Applicants in Johnston, Witthahn and Sutton alleged that eight of their human rights were limited due to a mandatory vaccination policy. Only one human right – the right not to be subjected to medical or scientific experimentation or treatment without the person's full, free and informed consent – was said to have been "limited". However, even though a human right may be limited, the limitation can still be reasonable and justifiable.

At the time the QPS and QAS Directions were being made, the Court accepted that:

• the nature of the QPS and QAS Directions were to minimise the risks of transmission, and in addition, many of the persons with whom QAS staff would be in contact were vulnerable;
• vaccinations had the effect of protecting against serious infection;
• while more may have been done to consider alternative solutions, those alternatives to mandatory vaccination would not achieve the same purpose; and
• at the time of giving the QPS and QAS 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.

For Justice Martin, these factors weighed in favour of a finding that the limit imposed on the right not to be subjected to medical or scientific experimentation or treatment without the person's full, free and informed consent, was justified.

It can be distilled from the discussion above that if the QPS and QAS Directions were not unlawful on a technical point, a mandatory vaccination direction may have been reasonable and justified. Such a direction should consider and address potential alternatives but could still be reasonable despite limiting human rights (including on the question of whether consent is full and free).