A Queensland judge ruled the COVID-19 vaccine mandate for frontline workers was unlawful. What comes next?

a queensland judge ruled the covid-19 vaccine mandate for frontline workers was unlawful. what comes next?

QAS paramedics and QPS officers were required to get vaccinated for COVID-19 during the pandemic. (Supplied: WA Health)

Queensland Supreme Court’s ruling that COVID-19 mandates breached the human rights laws of some frontline workers is predicted to be “the first of a wave of claims” and may influence other states, according to law experts.

Dozens of Queensland Police Service (QPS) and Queensland Ambulance Service (QAS) staff challenged their workplace mandates in 2022.

Almost two years later, in Brisbane on Tuesday, Justice Glenn Martin ruled that the QPS and QAS policies breached part of the Human Rights Act (HRA).

In a written decision, Justice Martin found the directives breached section 58 of the HRA, which states that all public service employees must give proper consideration to human rights before making a decision, and that they must act and make decisions that are compatible with human rights.

Premier Steven Miles said the Queensland government was seeking crown law advice in the wake of the court decision, and that he stands by the action taken during the pandemic.

“Certainly no regrets, the steps that we took to keep Queenslanders safe were the right steps and they worked,” he said.

“I’m very proud of Queensland’s response. That a testament to all the decisions we took.”

Justice Martin found the police commissioner failed to comply with this section of the act — despite being provided human rights compatibility assessments — and based on this, declared that the QPS directions were unlawful.

QPS said it acknowledged the Supreme Court’s decision on the commissioner’s COVID-19 vaccination directions and will “carefully consider the judgement and our options moving forward”.

So, what does this mean now?

Wendy Bonython, a Bond University associate law professor, said more claims would “definitely” be made in Queensland courts and other jurisdictions over the coming months.

“This is the first of a wave of claims of this type that we’re going to see come before the courts,” she said.

“It’s an interesting decision because it’s the first one of its type.”

But Dr Bonython said the largest part of the decision focused on the applicability of the Queensland Human Rights Act, and only the ACT and Victoria have “comparable” legislation.

“So, if we’re looking at other jurisdictions and states, any arguments along similar lines, they’re going have to be raised under different legal grounds,” she said.

How will this impact other industries?

Dr Bonython said workers employed “by the state” are “certainly going to be caught up” by the ruling, as they are subjected to directions made by high-profile public authorities.

She said it could apply to teachers, healthcare workers, and public servants.

“Their bosses imposing those directions are essentially following directions made by public offices,” she said.

“If they don’t follow through on [the directions], they’ll potentially be in breach of what they have reasonable belief is a legal direction.”

But Dr Bonython said it is “murky” for those working in the private sector.

Will the frontline workers be able to get their jobs back?

Dr Bonython said the ruling doesn’t order terminated employees be reinstated, or any other penalties encountered due to the mandate, but she said it “does open the door for them to seek reinstatement”.

She said workers involved in the ruling may have to go through further legal channels to be reinstated.

“The outcome of the decision is actually quite limited,” Dr Bonython said.

What about compensation?

Criminal lawyer and former Queensland Law Society president Bill Potts said the decision is “a very live can of worms” as to whether the workers involved can request compensation.

He said it would be a matter for the courts whether the workers would be able to successfully receive compensation for “loss of employment” or “lost and suffered damages”.

Dr Bonython said in this case, the applicants weren’t seeking back pay or reinstatement.

“All they’ve sought, and all they’ve got, is a correction from the court saying that these directions are unlawful,” she said.

How is Clive Palmer involved?

Hours after the decision was handed down, billionaire businessman Clive Palmer confirmed he financed the legal action which he said cost between $2 and $3 million.

“I’ve been happy for the last two years to fund this application,” he said.

“It wasn’t appropriate that I said I was doing that until we got a result, I didn’t want them in anyway to feel prejudiced.”

Mr Palmer said he would continue to pay for more cases and even a future class action against the government for those involved as it was a “worthwhile project”.

“It’s very easy for the government or people with a lot of money to squash litigants who haven’t got the money, who can’t afford to have justice before the court,” he said.

“It’s very important that they get equal access.

“We will enjoy getting the costs from the government and we’ll enjoy reinvesting those costs in the battle to make sure Australians can be free and have the right to choose.”

Will workplaces still be able to mandate vaccines during a pandemic?

Mr Potts said the decision won’t stop workplaces from mandating vaccines in future pandemics, but noted the ruling does provide a “road map” to future public services commissioners on how to “effectively” change employment contracts.

“It’s also indicated what things that future commissioners must take into account, particularly around individual human rights and the vulnerabilities of individuals,” he said.

“It’s not a decision which will solve everything, but it raises as many questions as it answers.”

What further action could this outcome lead to?

Dr Bonython said the government could decide to appeal the decision, or it could formalise how they interact with human rights assessments.

“I would imagine [the ruling] would translate to better clarification around how human rights considerations need to be taken into account in decision making, including in emergency circumstances such as the pandemic,” she said.

“What this decision basically says is that, under the Human Rights Act, anyone making a decision firstly needs to think about the human rights implications of the decision they’re planning on making and secondly, consider whether or not the proposal is still reasonable.”

What has been the Queensland government’s response?

Queensland Health Minister Shannon Fentiman said the government is still considering the decision made by Justice Martin.

She said she wanted to make it “very clear” that the ruling did not find mandatory COVID-19 vaccinations contrary to the HRA, but that those directions were issued unlawfully.

Ms Fentiman said, in the case of the QAS, the vaccine mandate was found not to be effective.

“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,” she said.

She said Queensland Health staff, under the Queensland Health director, have “nothing to do with this case”.

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