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Witthahn v Chief Executive of Hospital and Health Services and Director General of Queensland Health[2021] QCA 282

Witthahn v Chief Executive of Hospital and Health Services and Director General of Queensland Health[2021] QCA 282

SUPREME COURT OF QUEENSLAND

CITATION:

Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health; Johnstone & Ors v Commissioner of Police & Ors [2021] QCA 282

PARTIES:

In Appeal No 13931 of 2021:

BERNARD WITTHAHN

(first appellant)

SARAH WINDSOR

(second appellant)

CAMERON EVERS

(third appellant)

BEN NOSOV

(fourth appellant)

PETER THOMPSON

(fifth appellant)

MELANIE TRAKOSAS

(sixth appellant)

MICHAEL STUTH

(seventh appellant)

BRITTANY LEVEN

(eighth appellant)

JOSHUA TUNLEY

(ninth appellant)

BENJAMIN ELLIOTT VIGNAND BAXTER

(tenth appellant)

DAREN LONGOBARDI

(eleventh appellant)

SIMON MORRISON

(twelfth appellant)

DONNA BOWEN

(thirteenth appellant)

DYLAN JOHNSTON

(fourteenth appellant)

BENJAMIN BAXTER

(fifteenth appellant)

v

CHIEF EXECUTIVE OF HOSPITAL AND HEALTH SERVICES AND DIRECTOR GENERAL OF QUEENSLAND HEALTH

(respondent)

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(first intervenor)

QUEENSLAND HUMAN RIGHTS COMMISSIONER

(second intervenor)

In Appeal No 13932 of 2021:

DYLAN MARK JOHNSTON

(first appellant)

BENJAMIN OWEN OAKLEY

(second appellant)

KEVIN JOSEPH GHERINGER

(third appellant)

TONY ADAM PAYNE

(fourth appellant)

CONNAN KEITH BARRELL

(fifth appellant)

BENJAMIN SHANAHAN

(sixth appellant)

TONIA MARCELLE LANCE

(seventh appellant)

v

COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(respondent)

STATE OF QUEENSLAND

(first intervenor)

QUEENSLAND HUMAN RIGHTS COMMISSIONER

(second intervenor)

FILE NO/S:

Appeal No 13931 of 2021

Appeal No 13932 of 2021

SC No 11258 of 2021

SC No 11254 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeals

ORIGINATING COURT:

Supreme Court in Brisbane – [2021] QSC 275 (Dalton J)

DELIVERED ON:

14 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 December 2021

JUDGES:

Sofronoff P and Morrison and McMurdo JJA

ORDERS:

  1. Appeals allowed.
  2. Orders made on 26 October 2021 be set aside.

CATCHWORDS:

ADMINISTRATIVE LAW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – GENERALLY – where a written direction was issued by the Commissioner of Police which required all police officers and all staff members to receive at least one dose of a COVID-19 vaccine by a specified date, and a second dose by a second specified date, and provide evidence of such vaccinations if requested – where there were exemptions – where similar directions were issued by the Chief Executive of the Hospital and Health Services and by the Acting Commissioner of the Queensland Ambulance Service – where each set of appellants made applications seeking relief pursuant to s 20 and s 43 of the Judicial Review Act 1991 (Qld) – where the respondents took objection to the jurisdiction of the Supreme Court of Queensland to determine these disputes – where the primary judge made orders striking out parts of the appellants’ applications – where these orders reflected the primary judge’s acceptance of the respondents’ and intervenors’ submission that, so far as the appellants sought judicial review under s 20 of the Act, s 450 of the Industrial Relations Act 2016 (Qld) precluded their doing so – where the appeal is concerned only with the scope of the jurisdiction under the Judicial Review Act – whether whatever might be encompassed within the commission’s exclusive jurisdiction, the present claim under the Judicial Review Act does not fall within its domain – whether, if the legislature intended the Judicial Review Act to exclude from its scope decisions which “relate” to an industrial matter, then Part 2 of Schedule 1 of the Act would have been the place to say so – whether the primary judge was correct in finding that the Industrial Relations Commission has exclusive jurisdiction – whether some of the court’s supervisory jurisdiction under the Judicial Review Act has been “conferred” upon the Commission – whether the appeal should be allowed

Ambulance Service Act 1991 (Qld), s 9, s 41

Hospital and Health Boards Act 2011 (Qld), s 51A

Industrial Relations Act 2016 (Qld), s 9, s 447, s 448, s 449, s 450, s 531

Judicial Review Act 1991 (Qld), s 10, s 18, s 19, s 20, s 30, s 43

Police Service Administration Act 1990 (Qld), s 4.9

Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48, distinguished

Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12, cited

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46, distinguished

COUNSEL:

C S Ward SC, with P F Santucci, for the appellants

M H Hindman QC, with B I McMillan and R H Berry for the respondents

K J E Blore for the first intervenor

S Costello (sol) for the second intervenor

SOLICITORS:

Alexander Law for the appellants

Crown Law for the respondent and first intervenor

Queensland Human Rights Commission for the second intervenor

  1. [1]
    SOFRONOFF P:  Pursuant to s 4.9 of the Police Service Administration Act 1990 (Qld) the Commissioner of Police is empowered to give and issue written directions to police officers.  Section 4.9(3) requires police officers to whom such a direction is given to comply with it “in all respects”.  On 7 September 2021, the Commissioner issued a written direction which required all police officers and all staff members to receive at least one dose of a COVID-19 vaccine by 4 October 2021, a second dose by 24 January 2022 and provide evidence of such vaccinations if requested.  There were certain exemptions.
  2. [2]
    On 10 September 2021, acting under s 51A of the Hospitals and Health Boards Act 2011 (Qld), the Chief Executive of the Hospital and Health Services issued an Instrument of Chief Executive’s Health Employment Directive No 12/21 (which was reissued on 30 September 2021).  It was in similar terms to the direction issued by the Commissioner of Police.
  3. [3]
    On 12 October 2021, acting under ss 9 and 41 of the Ambulance Service Act 1991 (Qld), the Acting Commissioner of the Queensland Ambulance Service issued a direction to ambulance officers in substantially the same terms as the other two directions.  The appellants in appeal 13932 of 2021 are police officers or police staff to whom the Commissioner’s direction applies.  The appellants in appeal 13931 of 2021 are health service employees or ambulance officers who are subject to the directive.  Each set of appellants made applications seeking relief pursuant to ss 20 and 43 of the Judicial Review Act 1991 (Qld).
  4. [4]
    The respondents to each of these proceedings, namely the Commissioner of Police, the Chief Executive of Hospitals and Health Services and the Director General of Queensland Health, took objection to the jurisdiction of the Supreme Court to determine these disputes.  The Attorney-General for Queensland and the Queensland Human Rights Commission intervened.  On 26 October 2021, Dalton J made orders striking out parts of the appellants’ applications.  These orders reflected her Honour’s acceptance of the respondents’ and intervenors’ submission that, so far as the appellants sought judicial review under s 20 of the Act, s 450 of the Industrial Relations Act 2016 (Qld) precluded their doing so.  The appellants now appeal against those orders.  This Court has not been asked to determine the merits of the parties’ dispute, that is to say, whether or not there was power to make the directions and the directive or, if there was power to make them, whether they were rightly made.  This appeal is concerned only with the technical, but crucially important, question about the scope of the jurisdiction under the Judicial Review Act.  That is a question of statutory interpretation.
  5. [5]
    The Judicial Review Act was passed in order to create a new set of rights by which a person could challenge an administrative decision of the executive government of the State.  The jurisdiction to hear and determine an application was conferred upon the Supreme Court.  The Act did not confer power upon the Court to reconsider the merits of a reviewable decision but only to decide whether a decision was lawful.  As the foundation for its operation, the Act defined the kinds of decisions which could be reviewed.  These “decisions to which this Act applies”, as they were termed, were, relevantly, decisions “of an administrative character made … under an enactment”.[1]  Part 3 of the Act allowed such decisions to be reviewed by the Supreme Court by way of an application for a “statutory order of review”.  An application could be made on a number of grounds set out in ss 20 and 23 of the Act.  These grounds encompassed some grounds that, until then, had been common law grounds for judicial review.  The statutory grounds that replaced the common law grounds are widely drawn.  They range from attacks upon the reasoning process adopted by the decision maker[2] to attacks that assert a denial of the existence of any power to make the decision.[3]  Part 5 of the Act eliminated the remedies by way of common law prerogative writs and replaced those remedies with similar statutory remedies but by a simpler procedure.[4]
  6. [6]
    Section 10(1) of the Act is important for this case.  It provides:

“(1) The rights conferred by this Act on a person to make an application to the court in relation to a reviewable matter are in addition to any other rights that the person has to seek a review of the matter (whether by the court, another court or a tribunal, authority or person).”

  1. [7]
    Section 18 is also important.  It provides:
  1. “(1)
    This Act has effect despite any law in force at its commencement.
  2. (2)
    However, this Act does not—
  1. (a)
    affect the operation of an enactment mentioned in schedule 1, part 1; or
  1. (b)
    apply to decisions made, proposed to be made, or required to be made, under an enactment mentioned in schedule 1, part 2.”
  1. [8]
    It will be necessary, in due course, to consider the contents of the two schedules referred to in s 18(2).
  2. [9]
    Section 450 of the Industrial Relations Act provides:

“The original and appellate jurisdiction conferred on the commission by this Act or another an Act is exclusive of the jurisdiction of the Supreme Court or another court or tribunal, unless otherwise prescribed under this Act or the other Act.”

  1. [10]
    The respondents submitted at first instance, and submit now, that the dispute between the parties is an “industrial matter”[5] as defined in the Industrial Relations Act and that the effect of s 450 is that the Industrial Relations Commission, established by that Act, has exclusive jurisdiction to determine these disputes.  Accordingly, they submit that the Supreme Court lacks jurisdiction in these matters, subject to one qualification.  They accept that the Supreme Court’s jurisdiction to determine whether executive action is in excess of jurisdiction is unaffected by s 450.[6]  For that reason, they accept that the appellants are entitled to seek remedies under Part 5 of the Judicial Review Act.
  2. [11]
    The appellants submit that the Judicial Review Act applies to the contentious decisions because it would be inappropriate, when construing a statute that confers jurisdiction upon the Supreme Court, to impose limitations which are not found in express words.[7]  They submit that the kinds of “other rights” referred to in s 10, namely those rights which do not supplant the rights of review conferred by the Act, are defined in the widest possible terms and are apt to include a right to seek a remedy in the Industrial Commission.  Consequently, they submit, the Supreme Court has jurisdiction to determine their applications under Part 3 of the Judicial Review Act despite the language of s 450 of the Industrial Relations Act.
  3. [12]
    The appellants also submitted to the learned judge, and submitted again on appeal, that the inclusion in Schedule 2 of the Act of items 7 and 10, to which detailed reference will be made below, raised a necessary implication that a decision made under an enactment, notwithstanding that it may relate to an industrial matter, is within the jurisdiction conferred by the Act.
  4. [13]
    The learned judge concluded that ss 448, 449 and 450 “take away the Court’s jurisdiction pursuant to Part 3 of the JRA”.  Her Honour rejected the appellants’ submission about the effect of the contents of Schedule 2 because her Honour was of the opinion that the inclusion of items 7 and 10 in Schedule 2 “should be regarded as poor legislative drafting, rather than an indication of Parliamentary intention that Part 3 matters remain within the jurisdiction of this Court when they concern industrial matters”.[8]  Her Honour accepted a further submission of the respondents that there was “another incoherence created by the drafting of Schedule 2”: the inclusion of “[d]ecisions relating to the administration of criminal justice”.  The respondents submitted, and the learned judge accepted, that the inclusion of such decisions in Schedule 2 made no sense because such decisions are not justiciable according to two decisions of the High Court.[9]  Consequently, there could be no implication that such decisions could be reviewed under Part 3.  Her Honour concluded that this was “an indicator that insufficient thought was given to the drafting of the schedules to the JRA, rather than that there was some legislative intent to exclude the jurisdiction of the Industrial Commission”.[10]
  5. [14]
    In order to determine the issues in these appeals, it is helpful to consider the historical context in which the Judicial Review Act was passed.  The statute upon which the Act was modelled was the Administrative Decisions (Judicial Review) Act 1977 (Cth).  Apart from some differences, which largely reflect differences between the State and Commonwealth legislative contexts in which the two Acts operate, the Queensland Act is in substantially identical terms to the Commonwealth Act.  Indeed, s 16 of the Judicial Review Act provides:

16 Commonwealth Administrative Decisions (Judicial Review) Act

  1. (1)
    If—
  1. (a)
    a provision of the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) expresses an idea in particular words; and
  1. (b)
    a provision of this Act appears to express the same idea in different words because of different legislative drafting practice;

the ideas must not be taken to be different merely because different words are used.

  1. (2)
    A comparative table of the provisions of this Act and the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) is set out in schedule 3.”
  1. [15]
    The Commonwealth Act was passed in 1977 as a result of the recommendations of the Commonwealth Administrative Review Committee of 1971[11] and the Committee of Review of Prerogative Writ Procedures of 1973.[12]  Its purpose was to establish a single and simple form of proceeding for judicial review of Commonwealth administrative decision making.  The conceptual foundation for the Act was a “decision to which this Act applies” which was defined, relevantly, as a “decision of an administrative character made under an enactment”.[13]
  2. [16]
    However, the great innovation introduced by this Act was the requirement for a decision maker to give reasons for a decision.  In its original version, s 13 of the Act conferred a right upon an “aggrieved person”[14] to require a decision maker to give reasons for the decision and the section excluded only two kinds of decisions from its scope.  There was no requirement to give reasons for a decision to which s 28 of the Administrative Appeals Tribunal Act 1975 (Cth) applied, evidently because that section also imposed such a requirement.  Nor was there such a requirement if adequate reasons had already been given.  Otherwise, s 13 imposed that requirement upon every decision maker who had made a “decision to which this Act applies”.
  3. [17]
    The requirement to give reasons was regarded as the lynchpin of the statute.  The right to have reasons “was a dramatic advance in arming the individual with effective remedies in the overall scheme to ensure administrative justice” and “reasoned and principled administrative decisions are an indispensable element in a modern democracy”.[15]
  4. [18]
    The 1977 Act was preceded by two related Commonwealth statutes:  the Administrative Appeals Tribunal Act and the Ombudsman Act 1976 (Cth)Each of these Acts provided for other forms of review of administrative decisions.  The Administrative Appeals Tribunal Act did not confer a right to appeal against every administrative decision at all but only if power to do so was conferred by an Act.  Such a review was a review on the merits.  The Commonwealth Ombudsman was not restricted to decisions made under an enactment but the scope of reviewable decisions was limited as were the remedies.
  5. [19]
    In addition to these two existing statutory remedies, the High Court had, and has, original jurisdiction to issue writs of mandamus and prohibition and to grant injunctions against an officer of the Commonwealth.[16]
  6. [20]
    Under the Administrative Decisions (Judicial Review) Act, in its original form, all decisions made under a Commonwealth Act were subject to review by the Federal Court but the only question for the Court was whether a decision was lawful in the sense that none of the statutory grounds of review were engaged.  The Court was given power to enjoin action or to quash a decision as well as a power to direct action to be taken according to law.  Section 10 of the Commonwealth Act expressly provided for the continuation of other rights of review.  The section stated that “the rights conferred” by the Act on a person to make an application were “in addition to, and not in derogation of any other rights” that the person has to seek a review.
  7. [21]
    The Act therefore added a fourth statutory avenue by which a person could seek review of administrative action.  Of course, the right of a person to challenge a decision by means of a common law remedy, for example by way of an action for damages for tort in which a collateral attack is made upon the validity of a decision, also remained.[17]
  8. [22]
    As I have said, the Judicial Review Act faithfully followed the Commonwealth model and contains a comparative table of the provisions of both Acts in Schedule 3.  The analogue of s 8(1) of the Commonwealth Act is s 19 of the Judicial Review Act which provides: “The court has jurisdiction to hear and determine applications made to it under this Act”.
  9. [23]
    The “jurisdiction” so conferred is the authority, upon the Court’s jurisdiction being invoked, to determine whether matters prescribed by the Act have been established so that the discretion conferred by s 30 to grant relief arises for exercise.
  10. [24]
    The jurisdiction of the Industrial Relations Commission is, likewise, unique.  Section 447 of the Industrial Relations Act states that the functions of the Commission in the following terms:

“(1) The commission’s functions include the following—

  1. (a)
    establishing and maintaining a system of non-discriminatory modern awards that, together with the Queensland Employment Standards, provide for fair and just conditions of employment for employees;
  1. (b)
    supervising the bargaining of agreements;
  1. (c)
    certifying agreements;
  1. (d)
    making bargaining awards;
  1. (e)
    making modern awards;
  1. (f)
    promoting cooperative and productive workplace relations;
  1. (g)
    taking measures to prevent disputes;
  1. (h)
    assisting parties to an industrial cause in negotiating or resolving a matter relevant to the cause, whether or not the matter is within the jurisdiction of the commission;
  1. (i)
    resolving disputes by conciliation of industrial matters and, if necessary, by arbitration or making an order;
  1. (j)
    resolving disputes in the negotiation of agreements—
  1. (i)
    by conciliation; or
  1. (ii)
    by arbitration, including by the making of determinations;
  1. (k)
    resolving disputes over union coverage by making representation orders;
  1. (l)
    resolving disputes by performing the functions conferred on the commission under a referral agreement;
  1. (m)
    resolving other disputes that threaten to harm the community or the economy by conciliation and, if necessary, by arbitration;
  1. (n)
    dealing with—
  1. (i)
    applications brought under this Act or another Act, including for public service appeals; or
  1. (ii)
    claims relating to dismissals;
  1. (0)
    making declarations about industrial matters;
  1. (p)
    any other function conferred on the commission under this Act or another Act.
  1. (2)
    The commission must perform its functions in a way that—
  1. (a)
    is consistent with the objects of this Act; and
  1. (b)
    avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act.”
  1. [25]
    Section 448 of the Industrial Relations Act confers “jurisdiction” upon the Commission as follows:

“(1) The commission may hear and decide the following matters—

  1. (a)
    a question of law or fact brought before it or that it considers expedient to hear and decide for the regulation of a calling;
  1. (b)
    all questions—
  1. (i)
    arising out of an industrial matter; or
  1. (ii)
    involving deciding the rights and duties of a person in relation to an industrial matter; or
  1. (iii)
    it considers expedient to hear and decide about an industrial matter;
  1. (c)
    an industrial dispute referred to the commission under this Act or another Act by a member who has held a conference at which no agreement has been reached;
  1. (d)
    all appeals properly made to it under this Act or another Act;
  1. (e)
    all matters referred to the commission under this Act or another Act.
  1. (2)
    The commission may regulate a calling by an award—
  1. (a)
    on application by an organisation, an employer, or 20 employees (who are not members of an employee organisation and not covered by an award) in a calling; or
  1. (b)
    on application by the Minister; or
  1. (c)
    on its own initiative.
  1. (3)
    The commission—
  1. (a)
    may hold an inquiry into or about an industrial matter on application by an interested person or on its own initiative; and
  1. (b)
    must hold an inquiry into or about an industrial matter if the Minister, by notice, directs.
  1. (4)
    The commission must report the result of the inquiry, and make recommendations, to the Minister.
  1. (5)
    The commission may consolidate into 1 award all awards that apply to or affect an employer or class of employer in a calling, or the members of an organisation employed by the same employer or class of employer—
  1. (a)
    on application by an organisation or an employer; or
  1. (b)
    if the Minister, by notice, directs.
  1. (6)
    When exercising power under subsection (5), the commission may make the amendments it considers necessary or convenient to give effect to the consolidated award.
  1. (7)
    No provision of this Act or another Act limits, by implication, the commission’s jurisdiction.
  1. (8)
    In this section—

class includes a section of a class.”

  1. [26]
    Section 9(1) relevantly defines the expression “industrial matter” as follows:

“(1) An industrial matter is a matter that affects or relates to—

  1. (a)
    work done or to be done; or
  1. (b)
    the privileges, rights or functions of—
  1. (i)
    employers or employees; or
  1. (ii)
    persons who have been, or propose to be, or who may become, employers or employees; or
  1. (c)
    a matter the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.”
  1. [27]
    Sections 451 to 483 confers a variety of powers upon the Commission.
  2. [28]
    It is true that some of the facts that appellants would have to establish to succeed in their applications under the Judicial Review Act are facts that they would also have to establish if they were seeking relief in the Industrial Relations Commission.  For example, in either forum, the appellants would have to establish that they are persons affected by the decisions if validly made.  There will be other common facts.  However, as the respondents accepted, the substantive law that must be applied would be different in each proceeding.  In particular, the Commission is not bound by the rules of evidence but is to be “guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of” not only the parties but also “the community as a whole”.[18]  In making certain decisions, the Commission “must consider the public interest” in certain respects, including the “likely effects of the commission’s decision on the community, economy, industry, the particular industry concerned and industry generally”.[19]  The Commission’s functions include “resolving disputes by conciliation … and … by arbitration”.[20]  The applicability of these statutory principles will have an effect upon the scope of relevant facts.  The applicability of these statutory principles for the quelling of a dispute also means that the Commission’s jurisdiction will sometimes require it to act judicially and sometimes, when appropriate, to act non-judicially.
  3. [29]
    These aspects of the Commission’s jurisdiction, which it exercises to the exclusion of the Supreme Court, are incompatible with the jurisdiction conferred by the Judicial Review Act upon the Court, which must be exercise its jurisdiction in that respect strictly within the confines of judicial power.
  4. [30]
    Ultimately, the point becomes a simple one.  Ms Hindman QC, who appeared with Mr McMillan and Ms Berry for the respondents, candidly accepted that each of the disputed decisions fell within the definition of “decision to which this Act applies”.  That concession was correct.  The parties are also ad idem that the Industrial Relations Commission has no jurisdiction to determine the lawfulness of such a decision pursuant to the Judicial Review Act.  Nobody has suggested that the Supreme Court can exercise the statutory jurisdiction which the Industrial Relations Act has conferred upon the Commission.  Once that point is reached, it inexorably follows that, whatever might be encompassed within the Commission’s exclusive jurisdiction, the present claim under the Judicial Review Act does not fall within its domain.
  5. [31]
    As Mr Ward SC, who appeared with Mr Santucci for the appellants, submitted, ss 10 and 18 of the Act also require that conclusion.  Section 18(1), which is quoted above, limits its operation to “any law in force at its commencement”, which was when the Industrial Relations Act 1990 was in force.  At that time, s 4.20 of the Industrial Relations Act 1990 provided in terms that are materially identical to s 450 of the current Act.  If, contrary to the reasons set out above concerning the lack of consonance of the jurisdiction of the Commission and the Supreme Court, the disputes between the parties as formulated in their applications fall within the jurisdiction of the Commission, then the effect of s 18 was to confer jurisdiction upon the Supreme Court to determine these disputes notwithstanding the content of s 450.
  6. [32]
    Section 18 was not alone in asserting the scope of jurisdiction of the Court as a jurisdiction that was concurrent with other avenues of redress.  Section 10 also had that effect.  The appellants submit that, that if s 18 operated in 1991 to affirm the jurisdiction of the Supreme Court under the Judicial Review Act “despite” s 4.20 of the Industrial Relations Act 1990, that part of the jurisdiction was not extinguished by the happenstance replacement of s 4.20 by an identical provision because s 10 continued to support the existence of the jurisdiction of the Supreme Court.
  7. [33]
    Those submissions should be accepted.
  8. [34]
    Mr Ward submitted that there is a further textual indication that the disputed decisions are amenable to review under the Judicial Review Act.
  9. [35]
    The Administrative Decisions (Judicial Review) Act (Cth) was passed in 1977 but it was not proclaimed.  In part, this was because the new regime by which all governmental decisions were to become the subject of judicial review and, moreover, a review that was supported and informed by the obligation to give reasons, met with expressions of concern and objections from parts of the bureaucracy.[21]
  10. [36]
    Section 19 of the Act had made provision for the possible exclusion by regulation of particular decisions from the ambit of the Act but there was no provision for exempting any decision maker who makes a reviewable decision from the obligation to give reasons.  On the day of the second reading of the Bill to introduce the Act, the Attorney-General sent a letter to the Administrative Review Council seeking its advice as to the classes of decisions that might be excluded from the scope of the Act by regulation[22] and in due course the Council did so.[23]
  11. [37]
    The result was the introduction of the Administrative Decisions (Judicial Review) Amendment Bill 1980.  Section 13(1) of the Act in its original form imposed the obligation to give reasons upon every decision maker who has made a reviewable decision.  The section said, relevantly:

“Where a person makes a decision to which this Act applies … any person who is entitled to make application to the Court under s 5 in relation to the decision, may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings etc…”

  1. [38]
    The Amending Act omitted that subsection and substituted a new subsection which limited the reviewable decisions to which the obligation attached.  It did so by changing the definition of the decisions which carried that obligation:

“Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings etc…”[24]

  1. [39]
    Section 6(b) of the Amending Act then inserted a new subsection (11) into s 13 as follows:

“(11) In this section, ‘decision to which this section applies’ means a decision that is a decision to which this Act applies, but does not include—

  1. (a)
    a decision in relation to which section 28 of the Administrative Appeals Tribunal Act 1975 applies;
  1. (b)
    a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision; or
  1. (c)
    a decision included in any of the classes of decision set out in Schedule 2.”
  1. [40]
    Schedule 2 listed 11 categories of decisions.
  2. [41]
    The Explanatory Memorandum to the Amending Act stated:

“New sub-section 13(1) provides for the furnishing of a statement of reasons.  It changes the previous provision so that the obligation to furnish a statement of reasons only applies to decisions to which section 13 applies and not, as before, to all decisions subject to judicial review by the Federal Court under the Act.  That is, not all decisions subject to review by the Federal Court will now give rise to an obligation to furnish a statement of reasons…

New sub-section 13(11) defines the decisions to which section 13 applies; that is, those decisions in respect of which the decision-maker may be required to supply a statement of reasons under sub-section (1).  The sub-clause defines ‘decision to which the section applies’ as those decisions to which the Act applies, that is, those decisions reviewable under section 5 of the Act, but excluding certain decisions.”

  1. [42]
    In the course of his second reading speech on the Amending Bill in 1980, the Attorney-General said:

“In the first place it is clear, as a result of the Council’s investigation of the matter, that there are some circumstances in which it would not be appropriate to lay on decision-makers the obligation to give full written reasons for their decisions, but equally it would not be proper to withdraw the decisions concerned from review by the Federal Court…. It therefore became clear that the Act ought to be amended to allow some classes of decisions to be excluded from the obligation to give reasons without, at the same time, excluding those decisions from review by the Federal Court.”

  1. [43]
    The rationale for the exemption of any particular decision from the requirement to give reasons, while still rendering it subject to review, has to be inferred and the available inferences differ for each set of decisions included in Schedule 2, but that issue is immaterial to these appeals.
  2. [44]
    Accordingly, the Queensland Act takes the same approach in relation to the obligation to give reasons for decisions that are reviewable.  Part 4 of the Act concerns “Reasons for decision”.
  3. [45]
    Section 31 provides as follows:

“In this part—

decision to which this part applies means a decision that is a decision to which this Act applies, but does not include—

  1. (a)
    a decision that includes, or is accompanied by a statement, giving the reasons for the decision; or
  1. (b)
    a decision included in a class of decisions set out in schedule 2.”
  1. [46]
    Section 32(1) provides:[25]

“If a person makes a decision to which this part applies, a person who is entitled to make an application to the court under section 20 in relation to the decision may request the person to provide a written statement in relation to the decision.”

  1. [47]
    Reading the definition in s 31 into s 32 results in:[26]

“If a person makes a decision that is a decision to which this Act applies, but which is not … in the class of decisions set out in Schedule 2, a person who is entitled to make an application to the court under section 20 in relation to the decision may request the person to provide a written statement in relation to the decision.”

  1. [48]
    The effect of ss 31 and 32 and Schedule 2 is that a decision of a type that is listed in Schedule 2 is a “decision to which this Act applies” and is reviewable although there is no obligation to give reasons.
  2. [49]
    When the Judicial Review Act was first enacted, Schedule 2 contained 16 categories of decisions.  Item 10 in Schedule 2 of the original Act is still in the current version of the Act and provides as follows:

10 Industrial Matters

Decisions in relation to the prevention or settlement of industrial disputes, or otherwise relating to industrial matters, in relation to—

  1. (a)
    the State public service; or
  1. (b)
    another service established by an enactment; or
  1. (c)
    the staff of a State authority or local government authority.”
  1. [50]
    The necessary implication is that the Judicial Review Act applies to the decisions with which this appeal is concerned although the disputed decisions in these appeals also gives rise to industrial matters.
  2. [51]
    The inclusion in Schedule 1 of references to ss 554(3), 557(3) and 765 of the Industrial Relations Act is beside the point.  Section 554(3) allows for an appeal to the Court of Appeal from decisions of the Full Bench of the Commission and from the Industrial Court.  Section 557(3) excludes a right of appeal to the Court of Appeal against arbitrations decisions of the Full Bench.  Section 765(5) excludes a right of appeal to the Court of Appeal in relation to decisions about reporting guidelines.  The question in these appeals is not whether decisions made by the Commission and by the Industrial Court are subject to review under the Judicial Review Act; but for the inclusion of ss 554(3), 557(3) and 765 of the Act in Schedule 1, they would have been because they are all decisions made under an enactment.[27]  The question is whether decisions of other government entities are subject to review under the Act and the content of Schedule 1 has nothing to say about that.
  3. [52]
    On the other hand, the absence of any reference to the Police Service Administration Act, the Hospital and Health Boards Act and the Ambulance Service Act in Schedule 1 Part 2, which is headed “Enactments to which this Act does not apply”, is of significance.  This provision mirrors the changes to the Commonwealth Act in 1980 that were made as a result of the work of the Administrative Review Committee.  Schedule 1 Part 2 lists certain sections in six statutes which are excluded from the operation of the Act although they are all decisions made under an enactment:
    1. (a)
      Building Industry Fairness (Security of Payment) Act 2017, chapter 3 part 4: The provisions referred to concern decisions made by way of adjudication of claims for contractual progress payments.
    2. (b)
      Justices Act 1886, s 225: This concerns a decision of a District Court judge who determines an appeal from a Magistrate.  Such a decision is reviewable by the Court of Appeal under the s 118 of the District Court of Queensland Act 1967.
    3. (c)
      Magistrates Act 1991, ss 5(5), 12(2)(a), 26 and 30:  these provisions concern decisions of the Chief Magistrate to appoint a magistrate to serve in a particular place or to transfer a magistrate.  Part 7 of that Act confers a special right of review of such decisions.
    4. (d)
      Police Service Administration Act, Part 5A: these provisions concern decisions to test police personnel for drug and alcohol consumption.  Decisions arising from such testing are subject to the scrutiny of statutory disciplinary systems.[28]
    5. (e)
      Witness Protection Act 2000: this Act establishes a system for the protection of witnesses who face physical danger.  Protection is only available pursuant to an agreement between the chairperson of the Crime and Corruption Commission and an affected person.
  4. [53]
    If the legislature intended the Judicial Review Act to exclude from its scope decisions which “relate” to an industrial matter, then Part 2 of Schedule 1 of the Act would have been the place to say so.  That was one of the purposes of the Commonwealth amendment of 1980 which the Queensland Act incorporated.
  5. [54]
    The reason for that exemption is clear.  Why impose an obligation upon a State employer to give formal reasons in aid of the narrow, technical process afforded by the Judicial Review Act when a full merits review is also available in the Industrial Relations Commission in which procedures are available for the full disclosure of information, and which is under the ultimate supervision of the Court of Appeal?[29]
  6. [55]
    It is of no significance that decisions in relation to the investigation and prosecution of persons for offences are included in Schedule 2.  It is true, as the learned judge observed, that Barton v The Queen[30] established that the decision of an Attorney-General to issue an ex officio information was not justiciable.  The question was the subject of detailed consideration for the first time in that case and Gibbs ACJ and Mason J came to the conclusion that that decision was not amenable to the prerogative writs.[31]  Maxwell v The Queen[32] is to the same effect.[33]  Schedule 2 was made part of the Commonwealth Act in September 1980 but Barton was decided afterwards on 5 December 1980.  Maxwell was decided in March 1996.  The Judicial Review Act was passed in 1990, after Barton but before Maxwell, and Item 1 in Schedule 2 to the Queensland Act is an almost exact copy of the Commonwealth provision.  Insofar as the words of Schedule 2 are capable of applying to a decision to commence or to conclude criminal proceedings, the effect of Barton and Maxwell is that those words are to be interpreted so that they do not apply to such a decision.  However, not all decisions described in Item 1 of Schedule 1 are non-justiciable.  The words “decisions in relation to the administration of criminal justice” are not only wide enough to capture decisions of a kind that have always been susceptible to judicial review, such as a decision to issue a search warrant,[34] but the range of decisions within that description that are amenable to judicial review has not yet been finally determined.[35]
  7. [56]
    For these reasons the appeals should be allowed, and the orders made on 26 October 2021 should be set aside.
  8. [57]
    MORRISON JA:  I have had the considerable advantage of reading the draft reasons prepared by Sofronoff P and McMurdo JA.  I agree with their Honours’ reasons and the orders proposed by the President.
  9. [58]
    McMURDO JA:  The detailed analysis by the President allows me to express briefly my reasons for agreeing that the appeals should be allowed.
  10. [59]
    The Judicial Review Act 1991 (Qld) provides rights to persons who are aggrieved[36] or adversely affected[37] by administrative decisions or conduct of a kind to which the Act applies.  By Part 5, the Act provides statutory remedies, in place of the prerogative writs of mandamus, prohibition and certiorari, whilst preserving the grounds under the common law for those remedies.[38]  By Part 3, the Act provides a further remedy, described as a statutory order of review, upon several grounds.  Some of those grounds were the basis for judicial review under the common law, and others represent significant extensions of the common law.[39]
  11. [60]
    The grounds for relief under Part 5, the primary judge accepted, involve a contention that a decision has been made in excess of State executive power.[40]  The judge agreed that the grant of an exclusive jurisdiction to the Industrial Relations Commission, by s 450 of the Industrial Relations Act 2016 (Qld), had to be construed so as not to include the jurisdiction of the Supreme Court to determine questions of the limits of executive power.[41]  Consequently, the Industrial Relations Act should not be construed to affect the exercise by the court of its jurisdiction under Part 5.
  12. [61]
    For the same reason, such of the court’s jurisdiction under Part 3 of the Judicial Review Act which involves a question of whether there has been an excess of executive power is unaffected by the Industrial Relations Act.
  13. [62]
    The question in these cases is whether the Industrial Relations Act affects the jurisdiction under Part 3 which does not involve that supervisory jurisdiction.  The primary judge held that it was affected.  She held that on its proper construction, the Industrial Relations Act “conferred” that jurisdiction upon the commission, with the consequence that the court did not have jurisdiction to grant the relief sought by the appellants’ applications, upon certain of the pleaded grounds for it.
  14. [63]
    The jurisdiction of the Industrial Relations Commission is conferred by ss 448-450 of the Industrial Relations Act as follows:

448 Commission’s jurisdiction

  1. (1)
    The commission may hear and decide the following matters—
  1. (a)
    a question of law or fact brought before it or that it considers expedient to hear and decide for the regulation of a calling;
  1. (b)
    all questions—
  1. (i)
    arising out of an industrial matter; or
  1. (ii)
    involving deciding the rights and duties of a person in relation to an industrial matter; or
  1. (iii)
    it considers expedient to hear and decide about an industrial matter;
  1. (c)
    an industrial dispute referred to the commission under this Act or another Act by a member who has held a conference at which no agreement has been reached;
  1. (d)
    all appeals properly made to it under this Act or another Act;
  1. (e)
    all matters referred to the commission under this Act or another Act.
  1. (2)
    The commission may regulate a calling by an award—
  1. (a)
    on application by an organisation, an employer, or 20 employees (who are not members of an employee organisation and not covered by an award) in a calling; or
  1. (b)
    on application by the Minister; or
  1. (c)
    on its own initiative.
  1. (3)
    The commission—
  1. (a)
    may hold an inquiry into or about an industrial matter on application by an interested person or on its own initiative; and
  1. (b)
    must hold an inquiry into or about an industrial matter if the Minister, by notice, directs.

  1. (7)
    No provision of this Act or another Act limits, by implication, the commission’s jurisdiction.

449 Limitations on jurisdiction

The commission does not have jurisdiction to hear and decide a matter about which another Act excludes—

  1. (a)
    the jurisdiction of the commission about the matter; or
  1. (b)
    the application of a decision under this Act about the matter.

450 Commission’s jurisdiction is exclusive

The original and appellate jurisdiction conferred on the commission by this Act or another an Act is exclusive of the jurisdiction of the Supreme Court or another court or tribunal, unless otherwise prescribed under this Act or the other Act.”

  1. [64]
    The term “industrial matter” is defined by s 9 of the Industrial Relations Act as follows:

9 What is an industrial matter

  1. (1)
    An industrial matter is a matter that affects or relates to –
  1. (a)
    work done or to be done; or
  1. (b)
    the privileges, rights or functions of –
  1. (i)
    employers or employees; or
  1. (ii)
    persons who have been, or propose to be, or who may become, employers or employees; or
  1. (c)
    a matter the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.
  1. (2)
    However, a matter is not an industrial matter if it is the subject of a proceeding for –
  1. (a)
    an indictable offence; or
  1. (b)
    a public service appeal.
  1. (3)
    Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1.”
  1. [65]
    As the primary judge said, the words “affects or relates to” in s 9(1) are very wide.[42]  And as her Honour held, the directions which are challenged in these proceedings affect or relate to the appellants’ rights as employees, and impose conditions on the conduct of their callings.[43]  The respondents argue in each of these cases that there is thereby a controversy between the appellants and their employer for which a jurisdiction is conferred on the commission.  They say that the claims which are made by the appellants for relief under Part 3 of the Judicial Review Act, in so far as they are upon grounds which do not engage the supervisory jurisdiction of the court, are subsumed within that controversy.  In that way, it is said, that part of the court’s jurisdiction under the Judicial Review Act has been, in the terms of s 450 of the Industrial Relations Act, “conferred on the commission by this Act.”
  2. [66]
    At the same time, however, the respondents accept that the commission would resolve that controversy, not according to the Judicial Review Act, but by the application of a different substantive law.  By s 531(3) of the Industrial Relations Act, the commission is to be “guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of … the persons immediately concerned … and … the community as a whole.”  By s 531(5), in making its decision, the commission is required to consider the public interest including “the main purpose of this Act [and] the likely effects of the commission’s decision on the community, economy, industry, the particular industry concerned and industry generally.”  There are also procedural differences between the determination of a case under the Judicial Review Act and a case under the Industrial Relations Act, but what presently matters is the difference in the substantive law to be applied.
  3. [67]
    Under the Judicial Review Act, once a ground is established for the court’s review of a decision, the court must consider whether to exercise all or any of the powers which are conferred upon it by s 30.  They are rights and remedies which cannot be pursued and granted in the commission.  The supervisory jurisdiction of the court under the Judicial Review Act is to review whether administrative action is unlawful, in the sense that it exceeds the power or authority conferred on the decision maker or it fails to comply with procedural requirements imposed on the exercise of that power.[44]  In such a case, the court is concerned only with the lawfulness of the decision, and not with its merits.  The court’s powers are discretionary, and on occasion, relief may be refused.  But that is not to say that relief may be refused because of the merit of the decision or for some other consideration which would guide the commission in resolving a matter under the Industrial Relations Act.  The consequence of the respondents’ argument, if accepted, would not be the transfer of part of the court’s jurisdiction to the commission, but simply the loss of that jurisdiction.
  4. [68]
    To apply s 450 in this case, it is necessary to conclude that some of the court’s supervisory jurisdiction under the Judicial Review Act has been “conferred” upon the commission.  There is no warrant for interpreting that word in the way for which the respondents contend.  What, at first blush, might seem a convenient forum for the determination of the entirety of a controversy between an employer and employee is, on a closer examination, not so.  As I have discussed, indisputably, much of the exercise by the Supreme Court of its supervisory jurisdiction could not be affected by the Industrial Relations Act.
  5. [69]
    It follows, in my respectful opinion, that the primary judge erred in concluding that the Supreme Court did not have jurisdiction to determine the appellants’ applications upon those grounds which her Honour struck out.  The appeals should be allowed in each proceeding, the order made by the primary judge should be set aside and the respondents should be ordered to pay to the appellants their costs of the appeal.

Footnotes

[1]Section 4(a).  Other kinds of decisions are also included but they are not relevant.

[2]eg “taking an irrelevant consideration into account”: s 23(a).

[3]“[T]he decision was not authorised by the enactment under which it was purported to be made”.

[4]Sections 1.4 and 41(2).

[5]An “industrial matter” is very widely defined in s 9 of the Act to include, for example, a matter that “relates to … the functions of … employers” or that “relates to … the rights of … employees”.

[6]Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

[7]Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [32]; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at [34] and [87]; Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 420-421.

[8]Johnston & Ors v Commissioner of Police & Anor; Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health & Ors [2021] QSC 275 at [29].

[9]Maxwell v The Queen (1996) 184 CLR 501 at 534; Barton v The Queen (1980) 147 CLR 75.

[10]Reasons at [31].

[11]The “Kerr Committee”.

[12]The “Ellicott Committee”.  Both reports have been republished in The Making of Commonwealth Administrative Law, compiled by Robin Creyke and John McMillan, Centre for International and Public Law, ANU, 1996.

[13]Section 3(1).  There are other aspects of a “decision to which this Act applies” but they are immaterial to this appeal.

[14]Such a person, as defined, has standing to claim relief under the Act.  It is not contentious that the appellants have standing under the Judicial Review Act.

[15]Per Mason CJ in the 1989 Blackburn Lecture, quoted in paragraph [6] of the Review of the Administrative Decisions (Judicial Review) Act, Administrative Review Council Report No 33, 1991.

[16]Constitution, s 75. In 1983 the Judiciary Act 1903 (Cth) was amended by adding s 39B(1) which conferred the same jurisdiction upon the Federal Court.

[17]Sections 39 and 56 of the Judiciary Act 1903 (Cth) and see eg Ruddock v Taylor (2005) 222 CLR 612.

[18]Section 531(2) and (3).

[19]Section 531(5).

[20]Section 447(1)(i), (j) and (m).

[21]Cf. Second Reading Speech for Administrative Decisions (Judicial Review) Amendment Bill 1980.

[22]Administrative Review Council Report No. 1, paragraph [1].

[23]Administrative Decisions (Judicial Review) Act 1977, Exclusions under section 19, Administrative Review Council Report No. 1, 1978.

[24]All emphases are mine.

[25]Emphasis added.

[26]Kelly v The Queen (2004) 218 CLR 216; at [84], [103].

[27]In its original form, the Judicial Review Act included in Schedule 2 the equivalent provisions of the Industrial Relations Act 1990, namely ss 3.7 and 8.5.  Those were classic ouster clauses but the reason for their exclusion from the operation of the Judicial Review Act is because adequate review of decisions of those two bodies was then, and remains, available under their own statute.

[28]Police Service Board v Morris (1985) 156 CLR 397.

[29]Industrial Relations Act, Chapter 11 Part 5.  Industrial Relations (Tribunal) Rules 2011, Part 2, Division 2, Subdivision 2.

[30](1980) 147 CLR 75.

[31]Barton, supra, at 94.

[32](1995) 184 CLR 501.

[33]See at 534 per Gaudron and Gummow JJ.

[34]George v Rockett (1990) 170 CLR 104 (search warrants which are referred to in item 1(c) of Schedule 2).

[35]Holzinger v Attorney-General (Qld) (2020) 5 QR 314 at [70].

[36]Sections 20 and21 of the Act.

[37]Section 44 of the Act.

[38]Section 41 of the Act.

[39]See Judicial Review of Administrative Action, Aronson, Dwyer and Groves (5th Edition) at pp 172-173.

[40]Johnston & Ors v Commissioner of Police & Anor; Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health & Ors [2021] QSC 275 (Judgment) at [17].

[41]Judgment at [18]-[20], citing Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 580-581 [96]-[100].

[42]Judgment at [14].

[43]Judgment at [16].

[44]Queensland Administrative Law, Gilbert and Lane, para [1.1464] citing Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [114] per Kirby J.

Close

Editorial Notes

  • Published Case Name:

    Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health; Johnstone & Ors v Commissioner of Police & Ors

  • Shortened Case Name:

    Witthahn v Chief Executive of Hospital and Health Services and Director General of Queensland Health

  • MNC:

    [2021] QCA 282

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, McMurdo JA

  • Date:

    14 Dec 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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