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  4. Colebourne v State of Queensland (Queensland Police Service) (No. 2) - [2022] QIRC 16

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Colebourne v State of Queensland (Queensland Police Service) (No. 2)[2022] QIRC 16

Colebourne v State of Queensland (Queensland Police Service) (No. 2)[2022] QIRC 16

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016

PARTIES:

Colebourne, Janette

(Appellant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO.:

PSA/2021/377

PROCEEDING:

Public Service Appeals - Fair treatment decision

DELIVERED ON:

28 January 2022

HEARING DATE:

7 January 2022

MEMBER:

HEARD AT:

Merrell DP

Brisbane

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appellant employed by the State of Queensland in the Queensland Police Service in the position of Administration Officer at the Queensland Police Academy – appellant seconded to the higher classification position of Injury Management Advisor – Commissioner of the Queensland Police Service issued direction on 7 September 2021 mandating that certain employees, unless exempted, must receive a COVID-19 vaccine – appellant applied for an exemption from complying with requirement to be vaccinated – decision not granting the exemption – appellant, pursuant to ch 7, pt 1 of the Public Service Act 2008, appealed against the decision not to grant the exemption – whether decision not to grant the exemption was fair and reasonable – decision appealed against fair and reasonable – decision appealed against confirmed

LEGISLATION:

Industrial Relations Act 2016, s 531, s 562B and s 562C

Police Service Administration Act 1990, s 2.5 and s 4.9

Public Service Act 2008, s 119, s 194 and s 197

CASES:

Colebourne v State of Queensland (Queensland Police Service) [2021] QIRC 380

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Katae v State of Queensland [2018] QSC 225

Kelly v R [2004] HCA 12; (2004) 218 CLR 216

Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015

Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Pope v Lawler [1996] FCA 1446; (1996) 41 ALD 127

Qld Independent Education Union of Employees v Local Govt Association of Qld Ltd [2015] ICQ 003

Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414

Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59

APPEARANCES:

Mr M. Thomas and Mr K. McKay of Together Queensland, Industrial Union of Employees as agent for the Appellant.

Mr G. Patterson and Ms A. Ireland of the State of Queensland (Queensland Police Service) for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    Ms Janette Colebourne is employed by the State of Queensland and is a staff member, within the meaning of s 2.5 of the Police Service Administration Act 1990, of the Queensland Police Service ('the Service'). Ms Colebourne is appointed as an officer of the public service pursuant to s 119 of the Public Service Act 2008 ('the PS Act').
  1. [2]
    Ms Colebourne's substantive position, being that of Administration Officer, is located at the Queensland Police Academy. Since 20 February 2020, Ms Colebourne, by way of secondment, has been acting in a higher classification level position, being that of Injury Management Advisor.
  1. [3]
    On 7 September 2021, pursuant to s 4.9 of the Police Service Administration Act 1990, the Commissioner of the Service ('the Commissioner') issued the Instrument of Commissioner's Direction No. 12 concerning the mandatory COVID-19 vaccination and mask requirements for police officers and certain staff members ('Direction No. 12').
  1. [4]
    Paragraph 6 of Direction No. 12 relevantly provides that it applies to all staff members appointed pursuant to s 119 of the PS Act who are frontline staff members or frontline support staff members.
  1. [5]
    Paragraph 7 of Direction No. 12 relevantly provides that unless a staff member, to whom Direction No. 12 applies, is exempt under paragraphs 8 or 9, all such staff members must:
  • have received at least one dose of a COVID-19 vaccine by 4 October 2021;
  • have receive a second dose of a COVID-19 vaccine by 24 January 2022; and
  • provide evidence of receiving a COVID-19 vaccine if requested by the Commissioner or the Commissioner's delegate.
  1. [6]
    By memorandum dated 4 October 2021, Ms Colebourne applied for an exemption '… due to other exceptional circumstances' as provided for in paragraph 9b) of Direction No. 12. By email dated 14 October 2021, Ms Colebourne was advised of the decision that her application for an exemption had not been supported or approved and that she was required to receive a vaccine within the next two days and provide evidence of such vaccination ('the exemption decision').
  1. [7]
    By appeal notice filed on 2 November 2021, Ms Colebourne, pursuant to ch 7, pt 1 of the PS Act, appealed against the exemption decision. In Colebourne v State of Queensland (Queensland Police Service) ('Colebourne'),[1] I gave reasons for my decision dismissing Ms Colebourne's related application to stay the exemption decision.
  1. [8]
    The present issue for my determination is whether the exemption decision was fair and reasonable.
  1. [9]
    For the reasons given below, the exemption decision was fair and reasonable and I confirm the exemption decision.

The relevant legislative provisions

  1. [10]
    Section 197 of the PS Act provides that an appeal under ch 7, pt 1 of the PS Act is to be heard and determined under ch 11 of the Industrial Relations Act 2016 ('the IR Act') by the Commission.
  1. [11]
    In Morison v State of Queensland (Department of Child Safety, Youth and Women) ('Morison'),[2] I relevantly stated:
  1. [4]
    Section 562B(1) of the IR Act provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against. Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  1. [5]
    Sections 562B(2) and (3) of the IR Act replicate ss 201(1) and (2) of the PS Act prior to their deletion by the Amendment Act. This was to ensure that the purpose of a public service appeal is to decide whether the decision appealed against was fair and reasonable. For that reason, my view is that the principles applicable under the former s 201 of the PS Act, about the nature of such public service appeals, apply to the equivalent provisions under the IR Act.
  1. [6]
    I must decide the appeal by reviewing the decision appealed against. Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears. An appeal under ch 11, pt 6, div 4 of the IR Act is not by way of rehearing, but involves a review of the decision arrived at and the decision‑making process associated therewith.
  1. [7]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable. The issue for my determination is whether the decision appealed against was fair and reasonable.[3]
  1. [12]
    Neither party took issue with these principles or their application to the present appeal.
  1. [13]
    In a written outline of submissions filed in the Registry before the hearing of this appeal, Mr Thomas, of Together Queensland, Industrial Union of Employees as agent for Ms Colebourne, submitted that this appeal (and two other appeals I heard at the same time, namely, Ms Colebourne's appeals against the subsequent decisions to cancel her secondment to the Injury Management Advisor position[4] and to suspend her without remuneration)[5] needed to be '… considered dispassionately' focusing on a review of the decisions arrived at and the decision-making processes and that any submissions that amount to nothing more than 'But COVID' should be rejected.
  1. [14]
    That submission goes without saying. Pursuant to the statutory requirements set out in ss 562B(2) and (3) of the IR Act, I must decide the appeal by reviewing the decision appealed against and the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.[6]
  1. [15]
    In its written submissions, the State of Queensland, through the Service submitted, citing the decision in Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service,[7] that decisions reasonably open to a decision maker based on the relevant materials or evidence should not be expected to be disturbed on appeal. Ms Colebourne submitted that a perusal of that case revealed that the statement cited did not form part of the decision, but was a statement within the unreported public service appeal decision being appealed.
  1. [16]
    In oral submissions, Ms Colebourne then submitted that paragraphs 13 to 18 of her written submissions in Case No. PSA/2021/422 should be preferred.
  1. [17]
    Those written submissions, under the heading of 'What Is Meant by "Fair and Reasonable" in section 562B of the Industrial Relations Act 2016?' were:
  1. In deciding an appeal made pursuant to section 194 of the PS Act, the purpose of the appeal is to decide whether the decision was fair and reasonable.
  1. There is body of decision [sic] in which the Commission applies a narrow statement from Minister for Immigration and Citizenship v Li as a totality test in assessing legal reasonableness.

"If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it. …

Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.

  1. However, with respect, the Appellant contends that this aspect of the determination of legal reasonableness is only referring to a narrow subset of what constitutes legal reasonableness.
  1. The ratio in Minister For Immigration and Citizenship v Li clearly outlines that the "Wednesbury Test" is neither the starting point nor the end point in determining reasonableness and:

[t]he legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it..."

  1. The ratio of the majority further expands on the issue of legal reasonableness and that:

[t]he more specific errors in decision-making, to which the courts often refer [150], may also be seen as encompassed by unreasonableness…Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense

  1. This is supported by another line of authority in the Commission which relies on Page v John Thompson. Katae v State of Queensland affirms Page and cites passages from Minister for Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16Aboriginal Affairs v Peko-Wallsend Ltd, Minister for Immigration and Citizenship v Li and Minister for Immigration and Multicultural Affairs v Yusuf which provides for a much more expansive consideration of unreasonableness in the context of a PS Appeal.[8]
  1. [18]
    In further oral submissions, Ms Colebourne submitted that:
  • it was wrong to approach a public service appeal on the basis that just because the decision maker had some evidence to justify the decision it should not be disturbed; and
  • if the decision maker put unreasonable weight on a particular type of evidence or did not put any weight on the other evidence '… that in itself starts to trigger the types of unreasonableness which is encompassed in the Wednesbury test.'[9]
  1. [19]
    In my opinion, these submissions are not helpful in respect of the construction of s 562B(3) of the IR Act or in construing the phrase 'fair and reasonable' as contained in that section. There are a number of reasons for this.
  1. [20]
    First, the test of unreasonableness, referred to by Ms Colebourne in her submissions, is referrable to a court exercising judicial power in respect of a judicial review of certain administrative decisions. Judicial review, in the sense used in the cases cited by Ms Colebourne, refers to a review of the legality of administrative action and such a review, ordinarily, does not enter upon a consideration of the factual merits of the individual decision.[10] The task is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.[11] In such a review, an argument that a decision is 'unreasonable' is concerned with the question of the legal standard of reasonableness.[12]
  1. [21]
    Secondly, Ms Colebourne referred to the decision in Katae v State of Queensland ('Katae'),[13] and submitted that decision cited passages from Minister for Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16Aboriginal Affairs v Peko-Wallsend Ltd,[14] Minister for Immigration and Citizenship v Li[15] and Minister for Immigration and Multicultural Affairs v Yusuf[16] which, it was submitted, provided for a much more expansive consideration of unreasonableness in the context of a public service appeal. True it is that those cases were cited in Katae.[17] However, the passages from those cases as cited did not go to the unreasonableness ground of judicial review. Further, they were not cited as authority for the proposition for a much more expansive consideration of unreasonableness in the context of a public service appeal.[18]
  1. [22]
    Thirdly, the consideration of matters that go to the legal standard of reasonableness in the judicial review of an administrative decision is not apt to describe the function a Member of the Commission performs in hearing and determining a public service appeal pursuant to ch 11, pt 6, div 4 of the IR Act. Section 562B(3) of the IR Act is clear. The purpose of a public service appeal is to decide whether the decision appealed against was '… fair and reasonable'.[19]
  1. [23]
    The determination of whether a decision, which is the subject of an appeal pursuant to ch 7, pt 1 of the PS Act, was 'fair and reasonable' involves a review of the decision as well as the decision-making process associated with that decision.[20] Depending on the decision being appealed and the grounds of appeal raised, such a review may involve a review of the merits of the decision. In addition, depending on the decision being appealed and the grounds of appeal raised, a review of a decision as to whether the decision, or the decision-making process, was fair and reasonable, may involve a consideration of whether the decision maker complied with any relevant statutory provision.
  1. [24]
    Again, depending on the decision being appealed and the grounds of appeal raised in a public service appeal, it may be that considerations of a kind similar to those taken into account in the judicial review of an administrative decision may be relevant in determining, on a review of the decision, whether the decision was fair and reasonable.
  1. [25]
    However, there is no reason to conclude that the adjectives 'fair' and 'reasonable' that make up the phrase 'fair and reasonable' should be construed in any way other than in their ordinary meaning.[21] The task in conducting a public service appeal is to review the decision appealed against for the purpose of deciding whether the decision appealed against was 'fair and reasonable' not whether the decision was unreasonable having regard to the legal standard of reasonableness.

Background

  1. [26]
    Ms Colebourne's substantive position of Administration Officer, classification AO3, is located at the Queensland Police Academy, Oxley.
  1. [27]
    Since 20 February 2020, Ms Colebourne has been seconded to act in a position at a higher classification level, being that of Injury Management Advisor, classification AO5. Ms Colebourne's acting in that position was due to end on 28 January 2022, however, on 18 November 2021, a decision was made to cancel Ms Colebourne's secondment to that position. In acting in the position of Injury Management Advisor, Ms Colebourne was working in an office on Makerston Street, Brisbane. Ms Colebourne worked two days per week in the office and two days per week at home.[22]
  1. [28]
    Direction No. 12 had effect from 7 September 2021. Paragraphs 1 to 5 of Direction No. 12 set out the reasons why the Commissioner made the direction, in respect of the police officers and staff members to whom Direction No. 12 applies, to require them to be vaccinated against COVID-19. Those paragraphs provide:

Background

  1. A public health emergency was declared on 29 January 2020 for the whole of Queensland, under the Public Health Act 2005, due to the outbreak of COVID-19 and the health implications to Queensland. The risk presented by COVID-19 is heightened by the increased transmissibility and secondary attack rate of the delta variant, its increased virulence and severity of disease and the reduction in neutralising antibody activity.
  1. In order to fulfil the functions of the Queensland Police Service under section 2.3 of the Police Service Administration Act 1990, police officers must be frontline-ready and available for deployment. The Queensland Police Service has particular responsibilities during the declared public health emergency, including deployment of police officers and staff members to quarantine facilities as well as to COVID-19 border compliance duties. More broadly, the nature and frequency of police officers' interactions with members of the community, particularly vulnerable members of the community, results in a significantly increased risk of police officers contracting or transmitting COVID-19. Rapid transmission of COVID‑19 through the Queensland Police Service would take police officers and staff members out of service while they Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16undertake quarantine periods or recover from COVID‑19. In an extreme scenario, this could reduce the availability of police officers and staff members for deployment, and threaten the ability of the Queensland Police Service to serve the community.
  1. While it is primarily police officers who are on the front line, many staff members:
  1. a)
    have close working relationships with police officers;
  1. b)
    interact with members of the community (including vulnerable members of the community) in roles such as Police Liaison Officers as well as in public-facing roles at police stations; and,
  1. c)
    are mission critical, such as staff members stationed at Communications Centres, Policelink, fleet maintenance facilities and Queensland Government Air (QGAir).
  1. The Work Health and Safety Act 2011 places a responsibility on me as the Commissioner of Police, so far as is reasonably practicable, to ensure the health and safety of police officers and staff members. That Act also requires me to ensure, so far as is reasonably practicable, the health and safety of other people with whom police officers and staff members interact when performing the functions of the Queensland Police Service.
  1. While individual police officers and staff members have important human rights, those rights must be weighed against the interests of the community, including the human rights of others and the need to ensure that the Queensland Police Service is able to serve the community during a public health emergency.
  1. [29]
    Paragraph 6 is a substantive provision. It provides:

Application

  1. This Direction applies to:
  1. a)
    all police officers appointed pursuant to section 2.2 of the Police Service Administration Act 1990; and,
  1. b)
    all staff members appointed pursuant to section 8.3(5) of the Police Service Administration Act 1990 and/or sections 110, 119, 147 and 148 of the Public Service Act 2008 who are:
  1. (i)
    frontline staff members; or
  1. (ii)
    frontline support staff members.
  1. [30]
    Direction No. 12 provides for the ability for police officers and staff members, to whom Direction No. 12 applies, to apply for and be granted an exemption from the mandatory vaccination requirement.
  1. [31]
    Paragraphs 8 to 11 of Direction No. 12 provide:

Exemption from requirements for vaccination against COVID-19

  1. A police officer or staff member is exempt from the requirements in paragraph 7 if:
  1. a)
    the police officer or staff member is unable to be vaccinated due to a medical contraindication; and
  1. b)
    the police officer or staff member provides to the Commissioner of Police (or delegate) a letter from a treating doctor or specialist outlining:
  1. (i)
    the condition which makes it unsafe for the police officer or staff member to receive all available COVID-19 vaccines; and
  1. (ii)
    whether the condition is temporary in nature, and, if so, the duration.
  1. A police officer or staff member is also exempt from the requirements in paragraph 7 if the Commissioner of Police (or delegate) grants an exemption:
  1. a)
    due to a genuine religious objection; or
  1. b)
    due to other exceptional circumstances.
  1. A police officer or staff member who applies for an exemption under paragraph 9 must provide any supporting evidence requested.
  2. An exemption granted under paragraph 9 must be given in writing and may be subject to conditions. A police officer or staff member given an exemption must comply with any conditions specified therein.
  1. [32]
    Paragraph 15 of Direction No. 12 relevantly provides:

Definitions

  1. For the purposes of this Direction:

COVID-19 vaccine means:

  1. a)
    a COVID-19 vaccine approved by the Therapeutic Goods Administration for use in Australia; or
  1. b)
    if the police officer or staff member has been vaccinated overseas, a COVID‑19 vaccine endorsed by WHO-COVAX.

…

frontline staff member means a staff member who has regular contact with members of the public in their role as a staff member, including a watch-house officer, protective security officer, senior protective security officer, Police Liaison Officer, Torres Strait Island Police Support Officer and prosecutor.

frontline support staff member means a staff member who has a 'non-corporate services' role and who provides essential support, enabling the effective delivery of frontline services, including services performed at Communications Centres, Policelink, fleet maintenance facilities, and Queensland Government Air (QGAir).

…

staff member means a frontline staff member or frontline support staff member to whom this Direction applies, under paragraph 6.

  1. [33]
    As referred to earlier, paragraph 7 of Direction No. 12 provides that unless a staff member is exempt under paragraphs 8 or 9, all staff members, to whom Direction No. 12 applies, must have received at least one dose of a COVID-19 vaccine by 4 October 2021, must have received a second dose of a COVID-19 vaccine by 24 January 2022 and must provide evidence of receiving a COVID-19 vaccine if requested by the Commissioner or the Commissioner's delegate.

The relevant facts

  1. [34]
    By memorandum dated 4 October 2021, Ms Colebourne applied to a committee known as the Vaccination Exemption Committee ('VEC') for an exemption '… due to other exceptional circumstances' as provided for in paragraph 9b) of Direction No. 12.
  1. [35]
    In Colebourne,[23] I summarised the reasons given by Ms Colebourne for her application for exemption, the exemption decision and I also set out the relevant facts that occurred after that decision. I reproduce that part of the decision in Colebourne:
  1. [19]
    By way of summary, the reasons given by Ms Colebourne for her application for exemption were:
  • there were judicial proceedings in courts and tribunals in Queensland, and in other superior courts, regarding the validity of public health orders mandating vaccinations against COVID-19 and it would not be reasonable for her to have an irreversible medical procedure when such judicial rulings were outstanding;
  • there were changes reported day by day about adverse reactions by persons who received a COVID-19 vaccination;
  • she has a family medical history of disposition to heart disease, cancer, vaccine reactions, migraines, and Guillain-Barre Syndrome;
  • making any commitment to having the vaccination was going to create a serious adverse and confrontational environment in her family due to strong beliefs and faith held by her husband of 32 years and her immediate family members;
  • Direction No. 12 was in contradiction to the mandated COVID-19 vaccination by the Chief Health Officer of Queensland for health workers, principally because Ms Colebourne, in her position, did not have close working relationships with police officers or members of the community;
  • the dissenting decision of Deputy President Dean of the Fair Work Commission in Kimber v Sapphire Coast Community Aged Care Ltd and the reasons given by Deputy President Dean as to why vaccinations should remain voluntary;
  • her workplace would be considered a low exposure risk having regard to World Health Organisation publications;
  • because both unvaccinated and vaccinated people can carry and spread COVID‑19, if there was an outbreak, the Chief Health Officer would lockdown Queensland, as has frequently occurred in past minor outbreaks, such that she (Ms Colebourne) would then work from home and therefore the Commissioner could be assured that, as an employee of the Service, she (Ms Colebourne) should be able to continue to fulfil all her work functions and obligations;
  • during all lockdowns and since the pandemic was declared on 29 January 2020, she has continued to maintain good hygiene and health practices;
  • because of her domestic circumstances, she has limited interaction with members of the community;
  • the likelihood of mortality for her own age group, with no underlying health issues, is less than 1 percent;
  • she has a low risk of contracting severe COVID-19 illness because she has none of the listed medical conditions and is not in the demographic documented on the Australian Government Department of Health website;
  • she believes that no Service employee has contracted COVID-19 and when exposed in the workplace, an employee is managed with testing first and then by isolation until a result is received, which is backed up by contact tracing engaged by Queensland Health in circumstances where further risk assessments and protocols are commenced;
  • what cannot be managed is the risk to her and her health by having the COVID‑19 vaccination and exposure to adverse reactions or death; and
  • the COVID-19 vaccinations are only provisionally approved and are subject to efficacy and safety from ongoing trials and post market assessment.
  1. [20]
    Ms Colebourne requested that she not be subject to any intimidation, victimisation or discipline proceedings based on her family's beliefs and faith or other matters mentioned in her application for exemption.
  1. [21]
    Ms Colebourne also annexed to her memorandum, although, as I understand the evidence, not as the only annexure, a medical certificate dated 6 September 2021 in which her treating General Practitioner stated that Ms Colebourne was feeling very anxious about the mandatory COVID vaccination requirement and that Ms Colebourne '… would like to have some time so that she can get more information about the vaccine and prepare emotionally'.
  1. [22]
    The VEC, on a date not particularised, recommended that the exemption not be granted to Ms Colebourne on the basis that there was no supporting evidence. The Commissioner's delegate, the Deputy Commissioner, Strategy and Corporate Services ('the Deputy Commissioner') on 11 October 2021, agreed that the exemption should not be approved on the basis that there was no valid medical evidence provided for the medical exemption and no religious grounds advanced.
  1. [23]
    By email dated 14 October 2021 from Superintendent Terry Lawrence, Ms Colebourne was advised that Superintendent Lawrence had received advice that the VEC and the Deputy Commissioner had not supported or approved her application for exemption from receiving the COVID-19 vaccination.
  1. [24]
    In particular, Superintendent Lawrence stated:

This determination was based on the evidence and or information provided which was deemed insufficient to support your circumstances.

As a consequence you are now required to receive a vaccine within the next two days and provide evidence to me of such vaccination.

Please provide a priority response as to whether you intend to comply with the Commissioner's Direction and my requirement to be vaccinated in the forthcoming two days which are the 15th and 16th of October.

If you decline or fail to get vaccinated within that time frame the ED will consider your position within Safety and Wellbeing and the QPS and make a determination as to whether suspension proceedings should be commenced against you.

  1. [25]
    Ms Colebourne did not receive a vaccination within two days of 14 October 2021.[24]
  1. [36]
    It is not disputed that, at the date of the hearing of this appeal, Ms Colebourne is refusing to comply with Direction No. 12.[25]

Ms Colebourne's submissions

  1. [37]
    In summary, in her written submissions, Ms Colebourne submitted that:
  • she is not a frontline staff member or a frontline support staff member as defined in Direction No. 12;
  • the reasons given for refusing her application for exemption were inadequate and that if she provided insufficient evidence to support the application, then she should have been asked for such informa;tion or been provided with an opportunity to provide it;
  • the exemption decision lacked any evident and intelligible justification;
  • she was denied procedural fairness because she should have been provided with '… adverse findings or the details of deficiencies in the evidence provided and the opportunity to respond or to provide additional evidence';
  • there was a failure to particularise or adequately consider or weigh her human rights and the human rights compatibility statement; and
  • the decision failed to particularise, adequately consider or appropriately weigh work health and safety obligations.
  1. [38]
    However, not all of the matters referred to in Ms Colebourne's written submissions were pressed in her oral submissions. Ms Colebourne did submit, however, that she relied on her written submissions.
  1. [39]
    In oral submissions, Ms Colebourne submitted that Direction No. 12 did not apply to her because she was not a frontline staff member or a frontline support staff member as defined in that direction. In particular, it was submitted that having regard to the definitions of 'frontline staff member' and 'frontline support staff member', as contained in Direction No. 12, there was a subset of employees to whom it did not apply, namely:

[A] non-police officer in a corporate services role that does not have regular contact … with members of the public and does not provide essential support enabling the effective delivery of frontline services.[26]

  1. [40]
    Ms Colebourne submitted that she was a member of that subset because, as she said in her exemption application, in her acting Injury Management Advisor position she does not have regular contact with members of the public, she is in a corporate services role and that she does not provide essential support enabling the effective delivery of frontline services.[27]
  1. [41]
    Ms Colebourne then submitted that, based on the decision of the Industrial Court of Queensland in Qld Independent Education Union of Employees v Local Govt Association of Qld Ltd ('QIEU'),[28] the reasons given to her, in denying her exemption application, were inadequate such that there was an error of law in that it was not possible for her to determine whether or not the decision was sound in law.[29] Ms Colebourne further submitted that her case should be distinguished from the decision of this Commission in Radev v State of Queensland (Queensland Police Service) ('Radev').[30] In that case, the appellant was informed that the issues raised by him were not considered by the VEC or the delegate '… as exceptional to the degree that an exemption from being vaccinated in compliance with the Commissioner's Direction was warranted.'[31] It was held that the reasons provided were adequate.[32]
  1. [42]
    Ms Colebourne submitted that unlike the appellant in Radev, she did not know why her exemption application had been rejected.
  1. [43]
    In oral submissions, Ms Colebourne submitted that the relief she sought was for the matter to be referred back to the decision maker and for the threshold question of whether Direction No. 12 applies to her to be determined and a statement of reasons given.[33]

The Service's submissions

  1. [44]
    In its written submissions, the Service submitted that, in summary:
  • Direction No. 12 applied to Ms Colebourne because she was a frontline support staff member as defined within the direction;
  • it was up to Ms Colebourne to make the case for exemption and not for the Service to look beyond the evidence presented by her and that Ms Colebourne provided material that was irrelevant and did not provide exceptional evidence that would support any of the criteria for an exemption;
  • citing the decision of Industrial Commissioner McLennan in Radev,[34] simply because the response to Ms Colebourne's vaccination exemption application did not reference each and every circumstance, that did not mean that they were not considered in totality;
  • the reasons for the decision not to grant the exemption were adequate and provided intelligible justification in the relevant circumstances;
  • Ms Colebourne was provided with procedural fairness because she was granted the ability to put forward her case for exemption and had a reasonable opportunity to present her case;
  • it would be impracticable to consider the human rights of each of the 17,200 employees of the Service; and
  • despite the fact that working from home arrangements may be available for short periods of time, it was not a longer-term option and that at some point, Ms Colebourne would be required to attend the workplace and her very exposure to other workers, could expose all workers to a higher risk of the COVID-19 virus spreading.

The decision was fair and reasonable

  1. [45]
    In reviewing the recommendation made by the VEC, as approved by the Deputy Commissioner, Strategy and Corporate Services ('the Deputy Commissioner'), and as communicated to Ms Colebourne by Superintendent Lawrence, I find that the decision was fair and reasonable. There are a number of reasons for this view.

The claim that the reasons given were inadequate

  1. [46]
    In my opinion, having regard to the exemption application made by Ms Colebourne, the reasons given to Ms Colebourne by Superintendent Lawrence were adequate.
  1. [47]
    In Morison,[35] which was a case whereby virtue of the provisions of the PS Act and a statutory instrument, the decision maker was required to give a notice containing reasons for the decision under appeal, I stated:[36]
  1. [48]
    The adequacy of reasons of an administrative decision maker is to be tested by reference to the nature of the task which the decision maker had to undertake. The more significant the decision, the clearer the reasons should be.
  1. [49]
    Further, while it is not necessary for the decision maker to deal with every matter which was, or which may have been raised, it is enough that the findings and reasons deal with the substantial issues upon which the decision turned, such that a person aggrieved by the decision can understand why the decision went against him or her. This requires the decision maker to set out his or her understanding of the relevant law, any findings of fact upon which his or her conclusions depend, especially if those facts have been in dispute, and the reasoning processes which led him or her to those conclusions; and this should be done in clear and unambiguous language, not in vague generalities or the formal language of legislation.[37]
  1. [48]
    In the present case, I have not been referred to any statutory provision that required the provision of reasons for a decision declining an application for an exemption.
  1. [49]
    Exhibit 3 is the Service's Guidelines for the COVID-19 vaccination exemption process ('the Guidelines'). The effective date of the Guidelines was 21 September 2021. Paragraph 7 of the Guidelines provided that the VEC had been established to consider and provide recommendations on exemption applications, that applications would be considered on a case-by-case basis and that the VEC would include an independent medical specialist to provide medical advice on exemptions requested due to medical contraindication.
  1. [50]
    Paragraph 28 of the Guidelines provided that the VEC would make a recommendation to the Deputy Commissioner and, notwithstanding any advice provided by the VEC, the Deputy Commissioner had the final decision-making authority.
  1. [51]
    Paragraph 29 of the Guidelines provided that the outcome of the exemption application would be provided in writing to the employee outlining the reasons for the decision. To that extent, it is appropriate to consider whether the decision was fair and reasonable by having regard to the adequacy of the reasons given.
  1. [52]
    Ms Colebourne's application was made by memorandum dated 4 October 2021. The document consisted of five and a half pages of reasons as to why Ms Colebourne believed she should be granted an exemption. At the beginning of her memorandum, Ms Colebourne stated:

I believe that I should be granted an exemption by the Vaccination Exemption Committee (VEC) due to exceptional circumstances for the following reasons-

  1. [53]
    Therefore, it was clear from Ms Colebourne's application for exemption that she was applying for an exemption, not on medical or genuine religious grounds (as referred to in paragraphs 8 or 9a) of Direction No. 12) but '… due to other exceptional circumstances' as contemplated in paragraph 9b) of that document.
  1. [54]
    It seems to me that construed in context, for an exemption of the kind referred to in paragraphs 8 or 9 of Direction No. 12 to be granted, the grounds for the exemption must relate to the employee as an individual. This can be seen in respect of the exemptions that may be granted on medical or religious grounds. Similarly, in my view, the '… other exceptional circumstances' basis for an exemption concern circumstances that affect or concern the individual employee as opposed to general circumstances which may concern all or a large group of the members of the Service.
  1. [55]
    My view in this regard is also supported by the Guidelines which relevantly provide:
  1. All applications for exemption must include the required information/supporting documentation for consideration and assessment by the VEC. Employees are required to upload copies of supporting evidence that is to be relied upon.
  1. The supporting evidence provided to the VEC must be genuine, legitimate and able to be verified.
  1. Documentation provided in support of a medical exemption must include a medical report from a qualified medical practitioner or specialist outlining:
  1. the condition and medical reason which makes it unsafe for the employee to receive any of the current approved COVID-19 vaccines; and
  1. whether the condition is temporary in nature, and if so, the duration.
  1. Documentation provided in support of a religious exemption must include a statutory declaration from an authorised member of a recognised religious denomination detailing:
  1. the teaching(s) of that religion which prevent vaccination; and
  1. confirmation that the employee is a current member/adherent of those religious teachings.
  1. Documentation provided in support of an 'other exemption' (due to exceptional circumstances) must include relevant evidence that supports the exceptional circumstances. If the exceptional circumstances are temporary in nature, please specify the duration.
  1. Strict guidelines relating to privacy of information of individual employees have been put in place and information provided will not be used for any purpose other than considering the exemption application.
  1. [56]
    I have, earlier in these reasons at paragraph [35], set out a summary of the reasons given by Ms Colebourne in her application as to why she should be granted an exemption from the requirement to be vaccinated. There were about 15 reasons given by Ms Colebourne.
  1. [57]
    The reason for decision given to Ms Colebourne by Superintendent Lawrence, which she complains was inadequate and amounted to an error of law, was:

This determination was based on the evidence and or information provided which was deemed insufficient to support your circumstances.

  1. [58]
    However, this reason needs to be considered against the grounds advanced by Ms Colebourne as to why there were exceptional circumstances relevant to her such that she should be exempted from the mandatory requirement to be vaccinated.
  1. [59]
    Of the 15 reasons given by Ms Colebourne as to why there were exceptional circumstances such that she should be exempted from the requirement to be vaccinated:
  • three did not amount to circumstances affecting her as an individual, namely;
  1. -
    outstanding judicial proceedings in courts and tribunals regarding the validity of public health orders mandating vaccinations;
  1. -
    changes reported day by day about adverse reactions by persons who received a COVID-19 vaccination; and
  1. -
    the dissenting decision of Deputy President Dean of the Fair Work Commission in Kimber v Sapphire Coast Community Aged Care Ltd and the reasons given by Deputy President Dean as to why vaccinations should remain voluntary;[38] and
  • three could not reasonably be seen to be exceptional circumstances that would exempt her from the mandatory vaccination requirement, namely:
  1. -
    if there was an outbreak of COVID-19, the Chief Health Officer would lockdown Queensland and she would work from home;
  1. -
    since the pandemic was declared she has maintained good hygiene and health practices; and
  1. -
    the COVID-19 vaccinations are only provisionally approved and are subject to efficacy and safety from ongoing trials and post market assessment.
  1. [60]
    A summary of the remaining reasons is:
  • she has a family medical history of disposition to heart disease, cancer, vaccine reactions, migraines and Guillain-Barre Syndrome;
  • committing to having the vaccination was going to create a serious adverse and confrontational environment in her family due to strong beliefs and faith held by her husband of 32 years and her immediate family members;
  • Direction No. 12 was in contradiction to the mandated COVID-19 vaccination by the Chief Health Officer of Queensland for health workers, principally because Ms Colebourne, in her position, did not have close working relationships with police officers or members of the community;
  • her workplace would be considered a low exposure risk having regard to World Health Organisation publications;
  • because of her domestic circumstances, she has limited interaction with members of the community;
  • the likelihood of mortality for her own age group, with no underlying health issues, is less than 1%;
  • she has a low risk of contracting severe COVID-19 illness because she has none of the listed medical conditions and she is not in the demographic documented on the Australian Government Department of Health website;
  • she believes that no Service employee has contracted COVID-19 and when exposed in the workplace, an employee is managed with testing first and then by isolation until a result is received, which is backed up by contact tracing engaged by Queensland Health in circumstances where further risk assessments and protocols are commenced; and
  • what cannot be managed is the risk to her and her health by having the COVID‑19 vaccination and exposure to adverse reactions or death.
  1. [61]
    Clearly, by paragraph 10 of Direction No. 12, paragraph 9 of the Guidelines and as a matter of common sense, the onus was on Ms Colebourne to provide evidence supporting the exceptional circumstances, upon which she relied, that she said were affecting her. I accept the Service's submission that it was up to Ms Colebourne to make the case for exemption and not for the Service to look beyond the evidence presented by her.
  1. [62]
    There was no evidence provided by Ms Colebourne of the types of strong beliefs and faith held by her husband of 32 years and her immediate family members. No particular strong beliefs or a particular faith were cited.
  1. [63]
    In terms of the evidence supporting her claims about the effect on her own health, be it physical or psychological, the only evidence provided was a medical certificate from her General Practitioner which stated that Ms Colebourne was feeling anxious about the mandatory COVID vaccine requirement and that she would like to have more time so that she can get more information about the vaccine and prepare emotionally.
  1. [64]
    The other exceptional circumstances cited by Ms Colebourne are speculative.
  1. [65]
    I deal below with Ms Colebourne's contention that Direction No. 12 did not apply to her acting position of Injury Management Advisor.
  1. [66]
    In terms of the exceptional circumstances Ms Colebourne submitted that were affecting her as an individual, it seems to me that she provided no evidence that supported her contention that the circumstances she advanced, either singularly or collectively, were exceptional.
  1. [67]
    True, in the reasons given to her, no specific mention was made in respect of the circumstances she raised that did not affect her as an individual and in respect of the other circumstances which could not reasonably be seen to be exceptional circumstances relating to her. However, as referred to earlier, it is not necessary for the decision maker to deal with every matter which was or which may have been raised. It is enough that the findings and reasons deal with the substantial issues upon which the decision turned so that the person aggrieved can understand why the decision went against him or her.
  1. [68]
    Although they were brief, the reasons conveyed by Superintendent Lawrence dealt with the substantial issues upon which the decision turned, namely, that there was insufficient evidence and information provided by Ms Colebourne in support of what she said were exceptional circumstances. Viewed this way, the reasons for decision in this case are not readily distinguishable from those in the decision in Radev.
  1. [69]
    Further, as referred to in Morison, the adequacy of reasons of an administrative decision maker is to be tested by reference to the nature of the task which the decision maker had to undertake. Regard must be had to the function that was being performed by the VEC, in so far as its responsibility to make a recommendation, and the subsequent decision‑making function of the Deputy Commissioner.
  1. [70]
    The VEC and the Deputy Commissioner were not sitting as a court or tribunal in an adversarial setting where there were contesting parties and contesting submissions and evidence. The VEC had to determine whether or not it would recommend, on the basis of the exceptional circumstances cited by Ms Colebourne and the evidence provided by her, that there were exceptional circumstances such that she should be exempted from the mandatory requirement to be vaccinated. The Deputy Commissioner had the authority to make the final decision.
  1. [71]
    Viewed from this perspective, the reasons given to Ms Colebourne were adequate. Ms Colebourne provided insufficient information and evidence to prove that the circumstances that she claimed affected her as an individual amounted to exceptional circumstances such that she should be exempted from the mandatory vaccination requirement.
  1. [72]
    For the same reasons, Ms Colebourne's reference to the decision of the Industrial Court of Queensland in QIEU is not of assistance. The primary decision in that case was one made by a Full Bench of the Queensland Industrial Relations Commission where the appellant argued that certain teaching staff should have their conditions determined under an occupational award and not a local government award.[39] Other parties made submissions to the contrary.[40] The Full Bench made a decision that there would be one award governing the terms and conditions of employees of local government in Queensland.[41] In doing so, the Full Bench did not refer to the appellant or any of its submissions.[42]
  1. [73]
    It was in that context that the Court gave its reasons allowing the appeal on the basis that there was an error of law vitiating the decision of the Full Bench. The error was manifest in that the appellant was left not knowing why its submissions were rejected and the appellant did not know the approach the Full Bench had in respect of those submissions. The nature of the function performed by the Full Bench of the Commission in QIEU was significantly different to the function performed by the VEC and the Deputy Commissioner. There were no competing submissions and evidence before the VEC or the Deputy Commissioner. There were only the submissions and evidence provided by Ms Colebourne. In any event, insofar as Ms Colebourne claimed that there were circumstances that affected her as an individual which amounted to exceptional circumstances, such that she should be exempted from the requirement to be vaccinated, she knew from the reasons given to her why her application had been rejected. It was on the basis of a lack of evidence and information provided by her.
  1. [74]
    It may have been preferable for Superintendent Lawrence to have provided more detail as to why Ms Colebourne's application for an exemption was insufficient in respect of the evidence and information she provided. However, the reason why Ms Colebourne's exemption application was denied was because of the fact that she did not provide sufficient evidence or information in support of the exceptional circumstances that she claimed affected her as an individual. That was the reason given to Ms Colebourne.
  1. [75]
    Given the nature of the functions being performed by the VEC and the Deputy Commissioner, the reasons given to Ms Colebourne were adequate. Objectively, Ms Colebourne understood why her application had been denied. This was because none of the circumstances she cited, that affected her as an individual and that she claimed were exceptional, were supported by any evidence provided by her.

The claim that Directive No. 12 did not apply to Ms Colebourne in her position of acting Injury Management Advisor

  1. [76]
    This matter was pursued by Ms Colebourne on two grounds.
  1. [77]
    The first was that no reasons were provided to her as to why the submission she made in her exemption application - that her acting position as Injury Management Advisor did not fall within the definitions of 'frontline staff member' or 'frontline support staff member' within Direction No. 12 - were rejected.
  1. [78]
    The second was that Ms Colebourne's acting position of Injury Management Advisor did not fall within either of those definitions and, for that reason, the decision was not fair and reasonable.
  1. [79]
    In respect of the first ground, I cannot form the view that the exemption decision was not fair and reasonable for the reasons advanced by Ms Colebourne. There is a clear reason for this.
  1. [80]
    The recommendation to be made by the VEC was whether or not Ms Colebourne had made the case out for her circumstances to be exceptional circumstances such that she should be exempt from the requirement to be vaccinated. The VEC made the recommendation, and the Deputy Commissioner made the decision, that they had to make, namely, whether Ms Colebourne should be exempted from the mandatory vaccination requirement.
  1. [81]
    Ms Colebourne may have asserted that Direction No. 12 did not apply to her position as acting Injury Management Advisor, but having regard to paragraph 7 of the Guidelines, the role of the VEC was to consider, on a case-by-case basis, applications for exemptions and whether a recommendation would be made to the Deputy Commissioner that an exemption should be granted. That is what the VEC did. Similarly, having regard to paragraph 28 of the Guidelines, the Deputy Commissioner had the final decision‑making authority as to whether an exemption should be granted. That is what the Deputy Commissioner did.
  1. [82]
    To that extent, the decision, as conveyed to Ms Colebourne by Superintendent Lawrence was fair and reasonable. In these circumstances, it is unremarkable that there was no reference made to Ms Colebourne's claim that Direction No. 12 did not apply to her in her position of acting Injury Management Advisor. Put simply, it was not a matter the VEC or the Deputy Commissioner had to consider.
  1. [83]
    For this reason, I reject the submissions made by Ms Colebourne that the exemption decision was not fair and reasonable because she was not provided with reasons about her claim that Direction No. 12 did not apply to her in her position of acting Injury Management Advisor.
  1. [84]
    This reason is enough to dispose of this aspect of Ms Colebourne's appeal and it is unnecessary for me to consider the second ground relied upon by Ms Colebourne in the application of Direction No. 12 to her.
  1. [85]
    However, given that the second ground was raised, and submissions made with respect to it, I will briefly deal with it. There are two reasons why this second ground is not meritorious.
  1. [86]
    First, I am not persuaded that the VEC or the Deputy Commissioner, even if their function was to consider whether Direction No. 12 applied to Ms Colebourne, could have made a recommendation and decision, respectively, accepting her claim that Direction No. 12 did not apply to her on the basis of the submissions and evidence Ms Colebourne provided to the VEC.
  1. [87]
    Regard must be had to the specific claim made by Ms Colebourne about the nature of her acting position. In her exemption application, Ms Colebourne stated:
  1. I refer now to the issued Mandate from the COP whose direction is in contradiction Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16to the Qld Chief Health Officer who has mandated COVID-19 vaccination only to Health Workers -
  • Part 3 (a) - I do not have close working relationships with police officers
  • Part 3 (b) - I do not interact with members of the community in a public‑facing role
  • Part 3 (c) - I do not work in the mission critical area's [sic] of Communications Centres, Policelink, fleet maintenance facilities and the Queensland Government Air (QGAir)
  • Part 6 - the direction (b)(i) frontline staff members and (b)s [sic] (ii) frontline support staff member - I am not either type of these staff members as per descriptions in Part 3 (a) (b) and (c) - therefore the Mandate does not apply to me.
  • Definitions Part 15 of the Mandate describes duties carried out by a frontline staff member - my work does not carry out those duties. The Mandate also describes duties carried out by a support staff member - with 4 services Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16clearly stated - Communications Centres, Policelink, fleet maintenance facilities and QGAir. My workplace, Safety and Wellbeing is not stated in this description.
  1. [88]
    Direction No. 12 provided specific definitions of 'frontline staff member' and 'frontline support staff member'. Clearly, in terms of whether or not Direction No. 12 applied to Ms Colebourne in her position of acting Injury Management Advisor, having regard to paragraph 6 of that direction which is the application provision, the question of whether Direction No. 12 applied to Ms Colebourne depended upon whether she was a staff member who met either of those specific definitions as set out in paragraph 15 of Direction No. 12.
  1. [89]
    In her application for exemption, Ms Colebourne initially submitted that she was neither of those types of workers, not by having regard to the definitions in paragraph 15, but by having regard to paragraph 3 of Direction No. 12 which set out the background as to why the direction was being issued. Ms Colebourne then stated that her workplace of Safety and Wellbeing was not mentioned in the definition of 'frontline support staff member.'
  1. [90]
    Ms Colebourne merely submitted that she did not have close working relationships with police officers, she did not interact with members of the community in a public‑facing role and she does not work in Communications Centres, Policelink, fleet maintenance facilities and Queensland Government Air.
  1. [91]
    Ms Colebourne provided no evidence about any of these contentions. As best as I can make out, Ms Colebourne did not, as part of her application for exemption, provide a copy of her position description in the position of acting Injury Management Advisor. Similarly, as best as I can make out, Ms Colebourne did not provide statements from her supervisors or work colleagues about the type of work she performed in that position. No specific submissions were made by Ms Colebourne and no evidence was provided by her distinguishing the work she performed in her position compared to the work performed by staff members in the services referred to in the definition of 'frontline support staff member'.
  1. [92]
    If the application of Direction No. 12 to Ms Colebourne in her position of acting Injury Management Advisor was something that the VEC and the Deputy Commissioner were required to consider and determine (which they were not), there was simply a lack of evidence provided to them to support Ms Colebourne's claim that Direction No. 12 did not apply to her.
  1. [93]
    Secondly, as referred to above, there was no evidence provided by Ms Colebourne, as part of her application for exemption, as to the exact nature of her duties and responsibilities in her acting position of Injury Management Advisor.
  1. [94]
    However, it may reasonably be inferred, from the title of her acting position, namely, that of 'Injury Management Advisor', that the principal function of Ms Colebourne's acting position is to advise injured employees of the Service in respect of the management of their injuries.
  1. [95]
    Indeed, in her exemption application, Ms Colebourne stated:
  1. I am a motivated and engaged QPS employee with 18 years service. I have never been the subject of a complaint or adverse comments that I am aware of. I have the upmost respect for the work I perform in Injury Management, with QPS Management and importantly the members I look after. Their health and wellbeing is as important as my own and I truly believe that I can maturely and confidently arm myself with the information, protections and safe practices to minimise any risk to getting a COVID-19 infection.
  1. [96]
    Clearly, from this statement, a part of Ms Colebourne's responsibility, as acting Injury Management Advisor, is to advise 'members' of the Service in respect of their health and wellbeing. It is also reasonable to infer, given the large number of frontline police officers employed in the Service, that such advice is provided to 'members' who are injured frontline police officers in respect of their continued work on the frontline or their rehabilitation back to work on the frontline.
  1. [97]
    It is not a stretch to conclude that such a position is a non-corporate services role that provides essential support enabling the delivery of frontline services.
  1. [98]
    Further, contrary to the submissions made by Ms Colebourne, the correct approach would be to determine whether Ms Colebourne's position of acting Injury Management Advisor fell within the express definitions provided in paragraph 15 of Direction No. 12. The approach taken by Ms Colebourne was to imply into Direction No. 12 another definition, not contained in the direction, in an attempt to demonstrate that Direction No. 12 did not apply to her in her position of acting Injury Management Advisor.
  1. [99]
    By way of analogy to the construction of statutes, the correct approach to the interpretation of definitions is to read the words of the definition into the substantive enactment and then construe the substantive enactment, in its extended or confined sense, in its context and bearing in mind its purpose.[43] In my opinion, it is not the correct approach to the construction of Direction No. 12 to imply, from express definitions of the given types of employees to whom it does apply, a definition describing an employee to whom Direction No. 12 does not apply. It is also not correct to then determine the application of the direction on the basis of such an implied definition.

Claims made in other submissions

  1. [100]
    There were other written submissions made by Ms Colebourne by which she contended the decision was not fair and reasonable.
  1. [101]
    Ms Colebourne submitted that she was denied procedural fairness because she was not given a chance to respond to the views of decision makers. For the reasons given earlier, I accept the submissions of the Service that it was up to Ms Colebourne to make the case for exemption and not for the Service to look beyond the evidence presented by her.
  1. [102]
    Ms Colebourne submitted that the decision lacked any evident or intelligible justification. For the reasons given earlier, whilst the reasons given were brief, when regard is had to the reasons Ms Colebourne submitted that there were exceptional circumstances that affected her, the decision was intelligible and justified. The decision conveyed was that Ms Colebourne provided insufficient evidence and information in support of her claim for an exemption based on exceptional circumstances.
  1. [103]
    Ms Colebourne submitted that the decision failed to particularise, adequately consider or appropriately weigh her human rights and work health and safety obligations. I do not accept these submissions as a basis for concluding that the exemption decision was not fair and reasonable.
  1. [104]
    Ms Colebourne's submissions about human rights considerations went to whether Direction No. 12 was lawfully made. That was not a matter about which the VEC could make a recommendation or about which the Deputy Commissioner could make a decision. The VEC and the Deputy Commissioner were charged with performing particular functions in respect of the application of Direction No. 12, namely, whether exemptions should be granted.
  1. [105]
    Ms Colebourne submits that the decision maker failed to adequately consider or inappropriately weighed work health and safety considerations. The basis for this submission centres around Ms Colebourne's contention that there were work health and safety risk mitigation strategies that could have been investigated and deployed to mitigate risk if she was exempted from the requirement to be vaccinated.
  1. [106]
    Ms Colebourne, in her application for exemption, did not particularise any risk mitigation strategies that could be deployed if she was exempted from the requirement to be vaccinated, apart from referring to very general matters, namely, the extent to which she already worked from home, that she would work from home if there was an outbreak of COVID-19 and the Chief Health Officer lock-downed Queensland and that she would observe good hygiene and health practices. For these reasons, it is unremarkable that the VEC made the recommendation it did and the Deputy Commissioner made the decision he made.
  1. [107]
    As a consequence, the fact that no risk mitigation strategies were investigated to mitigate risk if Ms Colebourne was exempted from the requirement to be vaccinated does not render the decision not fair and reasonable.

Conclusion

  1. [108]
    For the reasons given, the exemption decision was fair and reasonable.
  1. [109]
    I confirm the exemption decision.

Order

  1. [110]
    I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

Footnotes

[1] [2021] QIRC 380 ('Colebourne').

[2] [2020] QIRC 203; (2020) 305 IR 311 ('Morison').

[3] Citations and footnotes omitted.

[4] Case No. PSA/2021/413.

[5] Case No. PSA/2021/422.

[6] During the hearing of this appeal, I raised the question with the parties about whether s 531(3) of the IR Act, which provides that 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, was applicable when the Commission was hearing and determining a public service appeal pursuant to ch 11, pt 6, div 4 of the IR Act. For the reasons given in this decision, and in the absence of full argument about that question, it is not necessary or desirable for me to make a determination about that question.

[7] [2014] QSC 252 ('Page'), (Byrne SJA).

[8] Citations omitted.

[9] T 1-15, ll 1-5.

[10] Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, [114] (Kirby J).

[11] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, [17] (Allsop CJ and Besanko and O'Callaghan JJ).

[12] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 ('Li'), [64] and [67]-[68] (Hayne, Kiefel and Bell JJ.)

[13] [2018] QSC 225 ('Katae').

[14] [1986] HCA 40; (1986) 162 CLR 24 ('Peko‑Wallsend').

[15] Li (n 12).

[16] [2001] HCA 30; (2001) 206 CLR 323 ('Yusuf').

[17] Katae (n 13) [21] and [22].

[18] The reference to the passage in Peko‑Wallsend (n 14) was to pages 39 and 40 where Mason CJ described the factors a decision maker was bound to consider in making a decision where the decision-making process was prescribed by statute. The reference to the passage in Li was to part of the judgment of French CJ at paragraph [26], which was cited in Katae (n 13) as authority for the same proposition, referred to above, by Mason CJ in Peko‑Wallsend. The reference to the passage in Yusuf (n 16) was to page 348, being part of the joint judgment of McHugh, Gummow and Hayne JJ, which, in Katae, was cited as authority for the proposition that a decision maker who fails to take mandatory relevant considerations into account has not properly applied the law.

[19] Page (n 7) [61].

[20] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008.

[21] See Pope v Lawler [1996] FCA 1446; (1996) 41 ALD 127, 135 (Nicolson J) in the context of that same phrase as used in s 37(2) of the Superannuation (Resolution of Complaints) Act 1993.

[22] T 1-25, ll 21-32.

[23] Colebourne (n 1).

[24] Citations and footnotes omitted.

[25] It was submitted on behalf of Ms Colebourne that she is not refusing to comply with Direction No. 12, but that she is not complying with Direction No. 12: T 1-9, l 46 to T 1-10, l 2. Such a submission is, in my view, disingenuous. Ms Colebourne is refusing to comply with Direction No. 12.

[26] T 1-19, ll 15-19.

[27] T 1-19, ll 21-24.

[28] [2015] ICQ 003 ('QIEU'), [18]-[20] (Martin J, President).

[29] T 1-22, l 24 to T 1-23, l 10.

[30] [2021] QIRC 414 ('Radev') (Industrial Commissioner McLennan).

[31] Ibid [41].

[32] Ibid [42]-[43].

[33] T 1-26, l 4-8.

[34] Radev (n 30), [45].

[35] Morison (n 2).

[36] Ibid [48]-[49].

[37] Citations omitted.

[38] [2021] FWCFB 6015.

[39] QIEU (n 28), [8].

[40] Ibid [9].

[41] Ibid [12].

[42] Ibid [11].

[43] Kelly v R [2004] HCA 12; (2004) 218 CLR 216, [103] (McHugh J).

Close

Editorial Notes

  • Published Case Name:

    Colebourne v State of Queensland (Queensland Police Service) (No. 2)

  • Shortened Case Name:

    Colebourne v State of Queensland (Queensland Police Service) (No. 2)

  • MNC:

    [2022] QIRC 16

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    28 Jan 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Colebourne v State of Queensland (Queensland Police Service) [2021] QIRC 380
2 citations
Jump To
Cite 1 - [2021] QIRC 380
Cite 2 - [2021] QIRC 380
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
2 citations
Jump To
Cite 1 - [2022] FCAFC 3
Cite 2 - [2022] FCAFC 3
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015
2 citations
Jump To
Cite 1 - [2021] FWCFB 6015
Cite 2 - [2021] FWCFB 6015
Katae v State of Queensland [2018] QSC 225
3 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Cite 3 - [2018] QSC 225
Kelly v The Queen (2004) 218 CLR 216
2 citations
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Cite 1 - (2004) 218 CLR 216
Cite 2 - (2004) 218 CLR 216
Kelly v The Queen [2004] HCA 12
2 citations
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Cite 1 - [2004] HCA 12
Cite 2 - [2004] HCA 12
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
3 citations
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Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Cite 3 - (1986) 162 CLR 24
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
2 citations
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Cite 1 - [1986] HCA 40
Cite 2 - [1986] HCA 40
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
3 citations
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Cite 1 - (2001) 206 CLR 323
Cite 2 - (2001) 206 CLR 323
Cite 3 - (2001) 206 CLR 323
Minister for Immigration and Citizenship v Li [2013] HCA 18
2 citations
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Cite 1 - [2013] HCA 18
Cite 2 - [2013] HCA 18
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
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Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
2 citations
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Cite 1 - [2001] HCA 30
Cite 2 - [2001] HCA 30
Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
2 citations
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Cite 1 - (2003) 198 ALR 59
Cite 2 - (2003) 198 ALR 59
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
3 citations
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Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Morison v State of Queensland (Department of Child Safety, Youth and Women) (2020) 305 IR 311
2 citations
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Cite 1 - (2020) 305 IR 311
Cite 2 - (2020) 305 IR 311
Page v Thompson [2014] QSC 252
3 citations
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Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252
Cite 3 - [2014] QSC 252
Pope v Lawler [1996] FCA 1446
2 citations
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Cite 1 - [1996] FCA 1446
Cite 2 - [1996] FCA 1446
Pope v Lawler (1996) 41 ALD 127
2 citations
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Cite 1 - (1996) 41 ALD 127
Cite 2 - (1996) 41 ALD 127
Queensland Independent Education Union of Employees v Local Government Association of Queensland Ltd [2015] ICQ 3
6 citations
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Cite 1 - [2015] ICQ 3
Cite 2 - [2015] ICQ 3
Cite 3 - [2015] ICQ 3
Cite 4 - [2015] ICQ 3
Cite 5 - [2015] ICQ 3
Cite 6 - [2015] ICQ 3
Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414
5 citations
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Cite 1 - [2021] QIRC 414
Cite 2 - [2021] QIRC 414
Cite 3 - [2021] QIRC 414
Cite 4 - [2021] QIRC 414
Cite 5 - [2021] QIRC 414
Re Minister for Immigration and Multicultural Affairs [2003] HCA 30
2 citations
Jump To
Cite 1 - [2003] HCA 30
Cite 2 - [2003] HCA 30

Cases Citing

Case NameFull CitationFrequency
Adam v State of Queensland (Queensland Health) [2024] QIRC 1773 citations
Baker v State of Queensland (Department of Education) [2025] QIRC 992 citations
Baldwin v State of Queensland (Queensland Health) [2025] QIRC 2242 citations
Benesovsky v State of Queensland (Department of State Development and Infrastructure) [2024] QIRC 1272 citations
Blomfield v State of Queensland (Queensland Health) [2022] QIRC 1161 citation
Brandis v State of Queensland (Gold Coast Hospital and Health Service) [2024] QIRC 1582 citations
Camillos v State of Queensland (Queensland Fire Department) [2025] QIRC 12 citations
Chen v State of Queensland (Queensland Health) [2025] QIRC 1222 citations
Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 172 citations
Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 406 citations
Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 182 citations
Colebourne v State of Queensland (Queensland Police Service) [2025] QIRC 1232 citations
Dau v State of Queensland (Department of Education) [2025] QIRC 822 citations
Deans v State of Queensland (Department of Education) [2025] QIRC 1082 citations
Dickerson v State of Queensland (Queensland Health) [2025] QIRC 1632 citations
Dodds v State of Queensland (Department of Environment, Tourism, Science and Innovation) [2025] QIRC 1522 citations
Donaldson v TAFE Queensland [2025] QIRC 1462 citations
Donnelly v State of Queensland (Queensland Health) [2022] QIRC 1493 citations
Epong v State of Queensland (Queensland Health) [2025] QIRC 72 citations
Fletcher v State of Queensland (Queensland Health) [2023] QIRC 454 citations
Gomez v State of Queensland (Department of Agriculture and Fisheries) [2024] QIRC 1902 citations
Goodchild v State of Queensland (Queensland Health) [2023] QIRC 535 citations
Green v State of Queensland (Department of Environment, Tourism, Science and Innovation) [2025] QIRC 1512 citations
Grundkvist v State of Queensland (Queensland Health) [2022] QIRC 1352 citations
Gurdler v State of Queensland (Queensland Health) [2024] QIRC 2132 citations
Hillman v State of Queensland (Queensland Health) [2022] QIRC 1822 citations
Jones v State of Queensland (Queensland Health) [2023] QIRC 755 citations
Lee v State of Queensland (Queensland Health) [2024] QIRC 1302 citations
Leigh v State of Queensland (Department of Education) [2025] QIRC 232 citations
May v State of Queensland (Queensland Health) [2024] QIRC 1762 citations
McGarry v State of Queensland (Queensland Health) [2023] QIRC 322 citations
Nicolson v State of Queensland (Department of Education) [2025] QIRC 722 citations
O'Neill v State of Queensland (Queensland Ambulance Service) [2022] QIRC 3083 citations
Ollenburg v State of Queensland (Department of Education) [2025] QIRC 1592 citations
Patterson v State of Queensland (Queensland Corrective Services) (No. 2) [2024] QIRC 2872 citations
Quinn v State of Queensland (Queensland Health) [2025] QIRC 1582 citations
Rackley v State of Queensland (Queensland Police Service) [2024] QIRC 802 citations
Sandford v State of Queensland (Central Queensland Hospital and Health Service) [2025] QIRC 2082 citations
Sebastian v State of Queensland (Queensland Health) [2025] QIRC 642 citations
Singh v State of Queensland (Queensland Police Service) [2024] QIRC 2752 citations
State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 32 citations
Walsh v State of Queensland (Queensland Police Service) [2025] QIRC 1772 citations
Williams v State of Queensland (Queensland Health) [2025] QIRC 2282 citations
1

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