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  4. Colebourne v State of Queensland (Queensland Police Service) - [2022] QIRC 40

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Colebourne v State of Queensland (Queensland Police Service)[2022] QIRC 40

Colebourne v State of Queensland (Queensland Police Service)[2022] QIRC 40

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 40

PARTIES:

Colebourne, Katie

(Appellant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO:

PSA/2021/420

PROCEEDING:

Public Service Appeal – Fair Treatment Appeal

DELIVERED ON:

17 February 2022

MEMBER:

HEARD AT:

Pidgeon IC

On the papers

OUTCOME:

CATCHWORDS:

The decision appealed against is confirmed.

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a fair treatment decision – Direction in place mandating that certain employees, unless exempted, must receive COVID-19 vaccine – appellant applied for an exemption from the COVID-19 vaccine on the grounds of exceptional circumstances – decision to not grant exemption – whether the decision not to grant the exemption was fair and reasonable

LEGISLATION:

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

Police Service and Administration Act 1990, s 2.5 and s 4.9

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

CASES:

Brassell-Dell & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356

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

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

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

Reasons for Decision

Background

  1. [1]
    Ms Katie Colebourne is employed by the Respondent, State of Queensland (Queensland Police Service), as an AO3 Client Service Officer (Weapons Licensing) in Operations Support Command, Brisbane. Ms Colebourne is a staff member of the Queensland Police Service within the meaning of s 2.5 of the Police Service Administration Act 1990.   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]
    Instrument of Commissioner's Direction No. 12[1] (the Direction) issued on 7 September 2021 addressed mandatory COVID-19 vaccination and mask requirements for police officers and certain staff members.  By way of background, the Direction says
  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 and staff members to quarantine facilities as well as to COVID-19 broader 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 undertake 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:

a)  have close working relationships with police officers;

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,

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.  The 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. [3]
    Relevantly, paragraph 6 of Direction No. 12 states 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. This Direction applies to:

a)  all police officers appointed pursuant to section 2.2 of the Police Service Administration Act 1990; and

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. [4]
    Paragraph 7 provides that:
  1. Unless a police officer or staff member is exempt under paragraph 8 or 9, all police officers and staff members must:

a)  receive at least one dose of a COVID-19 vaccine by 4 October 2021;

b) receive a second dose of a COVID-19 vaccine by 24 January 2022; and

c) provide evidence of receiving a COVID-19 vaccine if requested by the Commissioner of Police (or delegate).

  1. [5]
    Paragraphs 8 -11 address exemption from requirements for vaccination against COVID-19.
  1. A police officer or staff member is exempt from the requirements of paragraph 7 if:

a)  the police officer or staff member is unable to be vaccinated due to a medical contraindication; and

b)  the police officer or staff member provides to the Commissioner of Police (or delegate) a letter from a treating doctor or specialist outlining:

(i) the condition which makes it unsafe for the police officer or staff member to receive all available COVID-19 vaccines; and

(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 of paragraph 7 if the Commissioner of Police (or delegate) grants an exemption:
  1. due to a genuine religious objection; or
  2. 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.
  1. 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. [6]
    A Queensland Police Service Guideline titled 'COVID-19 Vaccination Exemption Process'[2] (the Guideline) provides guidelines 'developed to assist in the assessment of an employee's application for exemption to COVID-19 vaccination requirements'.
  1. [7]
    The Guideline sets out the application for exemption process to be followed by the employee and then considered by the Vaccination Exemption Committee (VEC)

Employee Responsibility

  1. An employee seeking exemption from the Commissioner's Direction on COVID-19 vaccination are to make application through the COVID-19 sharepoint and select one of the three available options:

a.  medical exemption;

b.  religious exemption; or

c.  other exemption (due to exceptional circumstances).

  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:

i.  the condition and medical reason which makes it unsafe for the employee to receive any of the current approved COVID-19 vaccines; and

ii.  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
  2. 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. [8]
    The Guideline states that responsibility of the VEC is to:

consider all exemption applications and review all information/supporting documentation on a case by case basis, prior to making a recommendation on the application for exemption.  The VEC then makes a recommendation to the Deputy Commissioner, Strategic and Corporate Services, and notwithstanding any advice provided by the VEC, the Deputy Commissioner has the final decision-making authority.[3]

  1. [9]
    On 7 October 2021, Ms Colebourne applied for an exemption[4] on the basis of exceptional circumstances.   In summary, the reasons Ms Colebourne provided to the VEC in support of her being exceptional were:
  • It would be inappropriate to make any decision while Ms Colebourne's own and 'several other legal actions are pending' relating to 'whether the current Public Health Orders are valid'.
  • Ms Colebourne is willing and able to work and continue performing her duties as normal.
  • There are changes day by day reported about reactions from the COVID-19 vaccination.
  • Her family medical history includes a disposition to heart disease, cancer, vaccine reactions, migraines and Guillain-Barre Syndrome as a direct result of the flu vaccination.
  • Making any commitment to having the vaccination is going to create a serious adverse and confrontational environment in her family due to strong beliefs and faith held by her father and her immediate family members.  Her father has already made threatening comments before if her partner were to convince her to get the vaccination.
  • She has consulted with a medical doctor on 20 September 2021 and spoken of her anxiety and concerns regarding the listed adverse events and deaths, especially pregnancy and fertility studies. Her doctor was dismissive of her request for a certificate of exemption from the vaccination however acknowledged her anxiety and need for her to have more time to make a decision about the COVID-19 vaccination and provided a medical certificate to state that she was seeking more time to consider getting vaccinated.
  • Since the announcement regarding the vaccination requirement, Ms Colebourne has experienced anxiety and has been prescribed anxiety medication, put on a mental health plan and been referred to a psychologist.
  • The Directive is in contradiction to the Queensland Chief Health Officer (CHO) who has mandated COVID-19 vaccination only to Health Workers. Ms Colebourne does not have close working relationships with police officers and members of the community in a public-facing role and while she has been told that her workplace is included under the mandate, she maintains that it does not.
  • She has worked from home during the pandemic and the arrangements have worked exceptionally well in her workplace.
  • The Fair Work Commission has issued guidelines regarding the COVID-19 vaccination and Ms Colebourne maintains that the work she performs comes under 'Tier 4'.  The guideline says that 'An employer's direction to employees performing Tier 4 work is unlikely to be reasonable given the limited risk of transmission of the coronavirus'.
  • In a recent Fair Work Commission decision,[5] Deputy President Lyndall Dean made a dissenting decision and gave reasons why vaccines should remain voluntary and non-compulsory.
  • On the basis of material published by the World Health Organisation, Ms Colebourne's workplace would be considered a low exposure risk.
  • Young people have mostly a mild or asymptomatic presentation when infected with COVID-19 and are at a near zero risk of death, there is an unusually high rate of reported adverse events and deaths following the COVID-19 vaccines compared to other vaccines.
  • Both vaccinated and unvaccinated people can carry and spread COVID-19. In an outbreak, the CHO will lock down Queensland and Ms Colebourne could then work from home as she has done before.
  • While she only has four years service, she is a motivated and engaged QPS employee and looks forward to remaining in the service for some time. Ms Colebourne has respect for the work she performs in weapons licencing and with QPS Management.
  • She believes that she can minimise any risk to herself contracting a COVID-19 infection.
  • She lives in a house with her partner and is able to isolate at home if she gets sick. It is documented that the likelihood of mortality for her age group with no underlying health issues is less than 1%.  She is at low risk of contracting a severe COVID-19 illness.
  • She believes that no QPS employee has contracted COVID-19 and when exposed in the workplace, that member is managed with testing first then isolated until a result is received. Contact tracing also occurs and further risk assessment and protocols are commenced.
  • What can't be managed is the risk to her and her health by having the COVID-19 vaccination and exposure to adverse reactions or death.
  • The COVID-19 vaccinations are only provisionally approved and as such are subject to efficacy and safety from ongoing trails and post market assessment.
  • Ms Colebourne believes that her workplace is requiring her to participate in a clinical trial and this would not meet the condition at s 84 of the Work Health and Safety Act 2011 and she suspects that the QPS could be in breach of the Act. 
  1. [10]
    On 15 October 2021, Ms Colebourne's team leader, Ms Jacinda Low conveyed a decision to Ms Colebourne.  That decision, dated 11 October 2021 was made by the Deputy Commissioner, Strategy and Corporate Services ('the decision maker') and was that Ms Colebourne's application for exemption from the Direction was not approved.
  1. [11]
    Ms Colebourne's appeal notice lists four grounds of appeal:
  • The Commissioner's Direction #12, properly construed does not apply to me or my role;
  • The decision fails to provide sufficient reasons as to its refusal;
  • The process did not provide procedural fairness and/or was defective;
  • The decisionmaker failed to adequately consider the seriousness of the reasons and evidence provided in the exemption, and inappropriately weighted considerations.
  1. [12]
    In deciding this appeal I am considering whether it was fair and reasonable for Ms Colebourne's vaccination exemption application to be refused.
  1. [13]
    I have read and considered all material filed in this matter, even if I do not refer to it in this decision.
  1. [14]
    I note that further submissions of Ms Colebourne filed on 11 February 2022 refer in part to changing circumstances surrounding COVID-19 over the period since the exemption decision was made.  I have read these submissions but I do not find that they assist in my decision making in this matter as I am reviewing a decision made at the time and in the context of the circumstances as they were in October 2021.  I further note that other parts of those submissions make reference to or reiterate matters already raised in Ms Colebourne's previous submissions.
  1. [15]
    As Ms Colebourne and the Respondent have both set out their submissions by way of addressing Ms Colebourne's grounds of appeal, I will approach this appeal by dealing with each ground of appeal, and submissions relating to that ground, in turn.

Is the Appellant entitled to appeal?

  1. [16]
    Section 194 of the Public Service Act 2008 (The PS Act) lists various categories of decisions against which an appeal may be made.  Section 194(1)(eb) provides that an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)".
  1. [17]
    The appeal was filed 8 December 2021 and includes an application for an extension of time to lodge the appeal. It appears Ms Colebourne had been engaging with the internal review process up until 26 November 2021 where she was advised the matter could not be resolved internally.
  1. [18]
    The Respondent has not taken issue with this justification and does not contest Ms Colebourne's eligibility to lodge an appeal.
  1. [19]
    I accept that Ms Colebourne is able to appeal the decision.

Appeal Principles

  1. [20]
    Section 562B(3) of the Industrial Relations Act 2016 (IR Act) provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
  1. [21]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal.
  1. [22]
    A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. To determine the appeal, I will consider whether the decision conveyed to Ms Colebourne on 15 October 2021 was fair and reasonable.
  1. [23]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

…

  1. (b)
    For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Appeal Ground 1: The Commissioner's Direction #12, properly construed does not apply to me or my role

  1. [24]
    Ms Colebourne believes that the Direction does not apply to her and says that hers is not a 'frontline role'.  Ms Colebourne says

I have never met with any of [sic] operational police officers, frontline support staff members or members of the public as a part of my work at Weapons Licensing.  All contact I have with my [sic] the public or operation police is made via the telephone and emails.[6]

  1. [25]
    Ms Colebourne says that when she made an initial request about her role under the mandate, Inspector Bust told her:

The definition of frontline support staff member you mention in section 15 of the direction includes examples of Communication Centres, Policelink etc.  That list is not exhaustive, it is just outlining some of the mission critical areas within QPS that contain frontline support staff (this is also mentioned in section 3(c)). We are certainly considered mission critical as there are legislative requirements around our role, meaning QPS would be held liable should the unit be shut down and certain functions were not achieved for an extended period.[7]

  1. [26]
    Ms Colebourne asks, 'If my role, which has no contact with the public or operational police officers is considered mission critical, shouldn't all of the QPS be considered "mission critical" as we are a legislative organisation?'[8]
  1. [27]
    Ms Colebourne refers to the 'other exemption category' which applies in a situation where 'a staff member technically falls within the category of 'frontline staff member' or 'frontline support staff member', but they do not have regular contact with members of the public or police officers in their working role, and the risks of COVID-19 can be mitigated in other ways.'
  1. [28]
    The Respondent says that Ms Colebourne is appealing the decision of the decision maker not to approve her exemption application and therefore this ground of appeal is irrelevant. In reply, Ms Colebourne says that she is not challenging the lawfulness of the Direction, but the decision maker's application of the Direction in her application for an exemption.
  1. [29]
    In the alternative, the Respondent relies on the Full Bench decision of the Commission in Brassell-Dell & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356 (Brassell-Dell).  In that decision the Full Bench held:

[84]  Therefore, on a proper construction of the PSA Act as a whole, and taken in the context of the QPS being maintained as a disciplined force:

  1. within the restrictions that have been explained, the Commissioner may give a lawful direction to employees;
  1. the direction is given by the Commissioner in her capacity as the effective employer or the employees;
  1. unless there is "reasonable excuse" not to comply, the employee must comply.

(footnotes omitted)

  1. [30]
    The Respondent says that Ms Colebourne is classified as a front-line support staff member and is therefore required to abide by Direction No. 12 (which has now been superseded by the current Direction No. 14), which applies to all employees of the Queensland Police Service irrespective of work location or job function.
  1. [31]
    The Respondent says that the application of the Direction has been made very clear to all employees, including Ms Colebourne and that 'it is not up to an employee to unilaterally determine that a lawful direction from an employer does not apply to them'.
  1. [32]
    Finally, the Respondent says Ms Colebourne applied for exemption from Direction No 12 through the VEC.  It asks why she would apply for an exemption if she believed that the Direction did not apply to her.
  1. [33]
    Ms Colebourne's application for exemption dated 7 October 2021 addresses the matter of whether the Direction applies to her:
  • 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)(ii) frontline support staff member – I am not either type of these staff members as per descriptions in Part 3 (a), (b) or (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 clearly stated – Communications Centres, Policelink, fleet maintenance facilities and QGAir. My workplace, Weapons Licencing is not stated in this description.
  • I have asked if my workplace Weapons Licencing is considered to be included under the Mandate – with reference to Part 3, Part 6 and Part 15 of the mandate to which I was advised by my Senior Sergeant and Inspector that it was however I maintain that my workplace does not.
  • I do not have direct contact with the public or frontline operational police officers.  I have had a Work From Home (WFH) arrangements in place for the 18 month period of the pandemic.  WFH arrangements have worked exceptionally well in my workplace and are continuing to be supported by management with a lot of members working Flexible Working Arrangements at Weapons Licencing. These arrangements are flexible and available at short notice if a lockdown is determined by the Chief Health Officer (CHO).
  1. [34]
    I note Ms Colebourne's submission that she had questioned her unit supervisors about whether the Direction applied to her and that she submitted an exemption application because there was 'conflicting information within the workplace as to who the exemption applied to and I saw no other avenue of internal review available to me'.
  1. [35]
    However, it appears that when she asked for this information, she received an unequivocal reply from her supervisor (see above at [29]) clearly informing her that her role was considered 'mission critical' and that the Direction applied to her.  To my mind, it was upon receipt of that advice that Ms Colebourne had the opportunity to raise a grievance regarding her view that the Direction did not apply to her.
  1. [36]
    The role of the VEC was to hear and decide applications for exemption from individuals who believed that on the basis of medical grounds, religious grounds or other exceptional circumstances, they were eligible to be exempt from the direction to be vaccinated.
  1. [37]
    I note that Merrell DP dealt with the question of the role of the VEC in the context of an appellant raising questions about whether the Direction applied to them in the matter of Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016.[9]

[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.

[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. [38]
    The role of the VEC was not to determine if the Direction applied to the employee.  To my mind, it was fair and reasonable for the VEC to assume that the Direction did apply to the employee given that the only reason to apply for an exemption would be if one was of the view that the Direction applied to them.
  1. [39]
    Ms Colebourne may have had other avenues to test her supervisor's advice that the Direction applied to the Weapons Licensing Branch, however, the application for exemption was not one of them.
  1. [40]
    My role in this appeal is to determine if the decision not to exempt Ms Colebourne from the vaccination direction on the basis of submitted exceptional circumstances was fair and reasonable.
  1. [41]
    I therefore turn to Appeal Ground 2.

Appeal Ground 2: The decision fails to provide sufficient reasons as to its refusal

  1. [42]
    Ms Colebourne's appeal notice states that she believes:

that the decision is unreasonable because I was not provided with written reasons for the decision or the findings made or the evidence relied upon.  While my information may have been considered by the committee, I have no way of knowing what was considered, what findings were made or what other information or evidence was relied upon.

  1. [43]
    The Respondent says that Ms Colebourne applied for an exemption on the basis of exceptional circumstances.  The Guideline does not limit what may constitute 'exceptional circumstances' but does require applicants to 'include relevant evidence that supports the exceptional circumstances'.
  1. [44]
    The Respondent points out that paragraph 29 of the Exemption Guidelines state 'the outcome of the exemption application will be provided in writing to the employee outlining the reasons for the decision and/or any conditions associated with an approval'.
  1. [45]
    Ms Colebourne says that paragraph 29 requires a written decision to be provided and that where a statutory instrument requires a written decision, the 'Acts Interpretation Act (Qld)' requires that this written decision also provide the findings and material evidence relied upon.  She says that this was not provided.
  1. [46]
    With reference to Merrell DP's consideration of principles relating to the adequacy of reasons for a decision which are required for administrative decisions in Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 (Morison), Ms Colebourne says that the exemption decision subject of this appeal does not provide the findings and reasons sufficient for her to understand why the decision was made.
  1. [47]
    With regard to Morison in the context of provision of reasons for a decision, I note that Merrell DP stated

[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 had to undertake.  The more significant the decision the clearer the reasons should be.

[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.[10]

  1. [48]
    The decision was provided to Ms Colebourne on Friday 15 October 2021 via email from Jacinda Low.[11]  It said

As per our conversation today at 9am, with regard to your exemption application.

Please be advised that the Committee considered this Other (exceptional circumstances) request on 11/10/21 and decided to not support the application based on the evidence provided.  The Committee concluded that the documentation provided in support of the application did not include sufficient relevant evidence that supports exceptional circumstances.

The application was referred to the Deputy Commissioner, Strategy and Corporate Services (S&CS) on 11/10/21 and he has decided to not approve the exemption request.

I have advised that your application is not approved and that you are now provided a further 2 days from the date of being advised of this decision to comply with the Commissioner's Direction and provide evidence of your first vaccination.

You are required to provide to Inspector Bust by email, proof of vaccination or advice concerning non-compliance following the two day timeframe, being 9am Sunday 17/10/2021.

…

  1. [49]
    The Respondent submits the reasons for the decision not to grant an exemption were adequate and provided intelligible justification in the relevant circumstances.[12]
  1. [50]
    The Respondent says that the decision was reasonably justified and that the reasons demonstrated that the VEC had considered the evidence Ms Colebourne had provided in the context of the grounds on which she applied for an exemption.  The VEC determined that there was not sufficient evidence to support an exemption on the grounds of exceptional circumstances and the decision maker concurred with that assessment.
  1. [51]
    The Respondent submits that employees may put forward a range of circumstances in support of their belief that they are exceptional.  The Respondent says that the purpose of the other exceptional circumstances category is to ensure that all employees who believe they should be considered for an exemption in that category could make application and have their application considered on its merit.[13]
  1. [52]
    With regard to Ms Colebourne's vaccination exemption request, the Respondent says that it was

extensive, contained a significant amount of irrelevant material copied from various sites from the internet and challenged the legality of the Direction whilst other legal matters were pending. On assessment, the Appellant's grounds for an exemption and supporting material were well known to the Respondent and were considered not unusual or exceptional.[14]

  1. [53]
    It is clear from the Guidelines that the VEC makes a recommendation to the Deputy Commissioner and that the Deputy Commissioner had authority to make the decision as to whether the exemption would be granted.  As discussed above, paragraph 29 of the Guidelines required that the 'outcome of the exemption application would be provided in writing to the employee outlining the reasons for the decision and/or any conditions associated with an approval'. 
  1. [54]
    Given the requirement that the outcome be provided in writing outlining of reasons for the decision, 'it is appropriate to consider whether the decision was fair and reasonable by having regard to the adequacy of the reasons given'.[15]
  1. [55]
    I have provided a summary of the submissions Ms Colebourne made in support of her application to be exempted from the vaccination on exceptional circumstances at [9] above.
  1. [56]
    In Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016, Merrell DP opined

…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.[16]

  1. [57]
    It is clear that what Ms Colebourne was required to do in her application for exemption was to put forward the reasons that related to her as an individual.  Further to this, Ms Colebourne was required to provide documentation that 'must include relevant evidence that supports the exceptional circumstances'.[17]
  1. [58]
    In consideration of Ms Colebourne's reasons for application set out above, it is clear that only some of these reasons could be described as relating to Ms Colebourne as an individual.  A number of her reasons were what I would describe as statements about COVID-19, general information or opinion available online or in the public realm regarding COVID-19 or Ms Colebourne's own assessment of the current situation.[18]
  1. [59]
    I note that some of the reasons specific to Ms Colebourne potentially related to medical issues (i.e. family medical history; anxiety regarding the vaccine; consultation with her doctor).  Firstly, I note that the exemption application was not made under the 'medical exemption' category.  Secondly, I note that with the exception of a medical certificate certifying that Ms Colebourne had spoken with a doctor about vaccination and was seeking more time consider her options, no other medical information or reports were provided in support of the reasons given above.  In fact, Ms Colebourne specifically says that her doctor was 'dismissive of her request for a certificate of exemption from the vaccination'. 
  1. [60]
    Ms Colebourne provides some information regarding the impact of both COVID-19 and the COVID-19 vaccine on young people.  Again, this information is not specifically pertaining to Ms Colebourne, and there is no documentation or evidence provided to indicate that this gives rise to exceptional circumstances in her case.
  1. [61]
    Ms Colebourne articulates the management process that has previously been put in place by QPS when an employee has been exposed to COVID and says that there is no way to manage the risk to her and her health by having the COVID-19 vaccination.  Again, this is in part a statement of her understanding of the QPS procedure and a general statement about risks arising from the vaccine but not supported by any documentation or evidence regarding the exceptional circumstance that this creates in her case.
  1. [62]
    Ms Colebourne refers to a 'serious adverse and confrontational environment in her family due to the strong beliefs and faith held by her father and her immediate family members' and threatening comments made by her father should her partner convince her to get the vaccination.  I have reviewed the material associated with Ms Colebourne's application and I am unable to find any documentation or evidence regarding her father's 'strong beliefs and faith'.  As is discussed above, the Guideline makes it clear that the onus was on Ms Colebourne to provide relevant documentation and evidence.
  1. [63]
    Ms Colebourne provides information to the VEC that she is a motivated and engaged employee, that she has successfully worked from home and could do so again in the event of a lockdown and that she believes she can minimise any risk to herself of catching COVID-19.  None of these things could be said to be exceptional circumstances impacting on Ms Colebourne.
  1. [64]
    Ms Colebourne provides information regarding her living situation and capacity to isolate if she becomes ill.  Again, this information does not represent an exceptional circumstance applying to Ms Colebourne.
  1. [65]
    I have addressed Ms Colebourne's submission to the VEC that the Direction did not apply to her above at Ground 1.
  1. [66]
    For completeness, I note that Ms Colebourne's exemption application had a number of documents attached to it and she included reference to this information in her application memorandum. A list of the Appendices has also been provided with the submissions of the Respondent on 1 February 2021:
  • Appendix 1: Video of  Channel 9 news report from 29/09/2021 on a Qld Health nurse who has decided not to be vaccinated despite Qld Health's vaccine mandate.
  • Appendix 1(a): Database of Adverse Event Notifications – Medicine Summary and for the 3 available COVID-19 vaccines 01/01/2019 to 20/08/2021 (77 pages).
  • Appendix 2: TGA  COVID-19 Vaccine Weekly Safety Report - 19/08/2021 (11 pages).
  • Appendix 3: Comirnaty Vaccination Consumer Medicine Information (CMI) Summary (4 pages)
  • Appendix 4: Australian Product Information for Comirnaty (17 pages).
  • Appendix 5: Fair Work Ombudsman – COVID-19 vaccinations: workplace rights and obligations (7 pages)
  • Appendix 6: Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] (C2021/2676) (48 pages)
  • Appendix 6a: World Health Organisation Webpage – How can people assess the risk for exposure to COVID-19 in their workplace and plan for preventive measures? (2 pages)
  • Appendix 6b: Australian Government Department of Health Website 'Is it true? Are COVID-19 vaccines mandatory in Australia…Vaccination for COVID-19 is voluntary – as are all vaccinations in Australia – and people maintain the option to choose…' (2 pages)
  • Appendix 7: University of Sydney news article – Australian data answers key questions about COVID-19 mortality (7 pages).
  • Appendix 7b: Australian Government Department of Health Website 'Who is at risk of severe illness?' (link to website).
  • Appendix 9: Queensland's  Work Health and Safety Act 2011 section 84 (snip of section and link to Act).
  • Appendix 9a: TGA webpage 'Comirnaty – what was approved?' https://www.tga.gov.au/apm-summary/comirnaty (snip of website and link)
  • Appendix 9b: Australian Clinical Trials website, Who can be part of a clinical trial? (snip of website and link).
  1. [67]
    I cannot find on the material before me that Ms Colebourne had advanced, in her written memorandum and attached documentation and evidence, any exceptional individual circumstances that would warrant the VEC making a recommendation to the Deputy Commissioner that her application for exemption be approved.
  1. [68]
    With reference to the principles enunciated in Morison, I find that the reasons given to Ms Colebourne were adequate for her to understand why her exemption request was refused. The VEC were tasked with considering Ms Colebourne's application, reviewing all information and supporting documentation on a case by case basis and making a recommendation on the application for exemption.  It is clear from the reasons given that the VEC decided that based on the evidence provided, the application would not be supported. The email explains that 'The Committee concluded that the documentation provided in support of the application did not include sufficient relevant evidence that supports exceptional circumstances'.
  1. [69]
    It was not necessary for the decision to address every aspect of Ms Colebourne's application.  It was necessary for the decision to explain to Ms Colebourne the reason her application was not supported.  In circumstances where it was decided that Ms Colebourne did not provide any evidence of exceptional circumstances relating to her individual situation, the decision explained this to her and it could be clearly understood by her that this was the case.
  1. [70]
    While I acknowledge that Ms Colebourne could have been provided more detailed reasons for declining the exemption application, I do not find that this lack of detail serves to make the decision unfair or unreasonable given the essential reason the application was not supported was clearly communicated in the decision. Appeal Ground 2 cannot succeed.

Appeal Ground 3: The process did not provide procedural fairness and/or was defective

  1. [71]
    Ms Colebourne's appeal notice states

I believe that the decision is unfair because I was not given any chance to respond to the committees' views, answer questions or provide additional information.  A key component of procedural fairness is the hearing rule which provides that someone affected by a decision is given a fair hearing in relation to that decision. The email I received advises that the evidence I provided was insufficient but was not provided with information about what deficiencies were identified or an opportunity to address those deficiencies.

  1. [72]
    Ms Colebourne's submissions address reasons she says procedural fairness did not occur:
  • she is concerned that the committee did not receive her application for exemption in its 'legal submitted form' in electronic format and that this was significant as it contains video content and URL links.
  • The part of the form attached to the front of Ms Colebourne's application that says 'sufficient supporting evidence provided?' is not answered with 'yes' or 'no'.
  • The part of the form titled VEC Recommendation is not filled in and Ms Colebourne is concerned that this means that it is questionable that her application was reviewed by the VEC.
  • The form includes a comment saying 'no valid or medical evidence provided for medical exemption. No religious grounds advanced' and her application was 'clearly marked as an application for exemption on other grounds'.  Ms Colebourne submits that the decision maker did not carefully consider her application in its entirety.
  • Ms Colebourne says that her evidence was summarily dismissed and that no procedural fairness occurred with the result of no natural justice.
  • If there was insufficient evidence provided to support her application, she should have been asked or offered an opportunity to provide it.
  1. [73]
    The Respondent submits that the VEC:
  • Was established to review all exemption applications.
  • Comprised representatives from senior operational management, medical expertise, legal, industrial relations and union representation.
  • Reviewed all exemption applications against the published guidelines and made recommendations to a delegate at Deputy Commissioner level for final determination.
  1. [74]
    The Respondent says that by granting Ms Colebourne the ability to put forward her case for exemption and for this to be considered on various grounds first by the VEC and then a delegate at Deputy Commissioner level, Ms Colebourne has had a 'reasonable opportunity of presenting her case'[19] and that she has been afforded procedural fairness.
  1. [75]
    The Respondent submits that Ms Colebourne's application contained a significant number of attachments.  All these matters were sighted in Ms Colebourne's application to the VEC as appendices and were considered by the Respondent and were either disregarded as not relevant to the individual,[20] were general internet statements or unpublished articles or matters that were generally known to the Respondent.
  1. [76]
    Further, the Respondent says that Ms Colebourne's application was provided to the decision maker in the same format as the attachment to the Respondent's submissions dated 23 December 2021 and contained the COVID-19 Vaccination Exemption Request Proforma.  The material was presented to the decision maker by the VEC Chair in person.
  1. [77]
    The Respondent says that it is correct that the decision maker noted on the application proforma that 'No valid or medical evidence provided for medical exemption. No religious grounds advanced'.  The proforma clearly indicates that the application was 'Other (due to exceptional circumstances). It is not necessary for the decision maker to deal with every matter which was or which may have been raised.[21]  Ms Colebourne's application was considered in full and nothing in the application was compelling nor exceptional. 
  1. [78]
    Ms Colebourne replies and submits that she is of the view that her youth and submissions regarding not working in a frontline position have not been considered.
  1. [79]
    Ms Colebourne also raises concerns about the material provided to me and whether the Respondent properly attached her appendices.  Ms Colebourne remedies this by attaching all documents for me as a part of her submissions of 4 February 2022.  I confirm that I have identified those documents and can see where they are referred to in her initial application.
  1. [80]
    There appears to be some discrepancy or misunderstanding regarding the existence of an appendix 8 to Ms Colebourne's original application for exemption.  Ms Colebourne confirms that no such appendix exists.  I can understand any confusion on the part of the Respondent given the large number of appendices and that Ms Colebourne's application, for some reason, skips from appendix 7(b) to appendix 9.  To be clear, I understand that there is no appendix 8.
  1. [81]
    I understand that Ms Colebourne believes that the VEC should have come to a different decision having read her application and considering the material attached to it.
  1. [82]
    I am unable to conclude that the proforma attached to the front of Ms Colebourne's application indicates that procedural fairness was not afforded to her.  The form appears to have some sections not filled in, but it also has additional information added to it which addresses some of those sections not filled in.  The reference to no medical or religious information being provided would appear to me to be a confirmation that the application could not be said to have been made under either of those two exemption reasons.
  1. [83]
    The note at the top of the proforma clearly sets out the issues that, out of those put forward in Ms Colebourne's application, the Assistant Commissioner or VEC decided related to her as an individual: family medical history, serious family issues related to strong beliefs and faith and threatening comments from her father and concern about pregnancy and fertility.  Further, the form notes the material referenced and the nature of that material.  It is clear that the VEC considered the application and the proforma demonstrates that the application has been read, the relevant arguments distilled and the additional 'documentation and evidence' has been listed.  There is no evidence before me that Ms Colebourne's application was not considered per the Guideline.
  1. [84]
    The Guideline does make provision for the application to be returned to the employee in the event that there is insufficient evidence to forward the application to the VEC. However, I find it was reasonable for the Assistant Commissioner and the VEC to expect that Ms Colebourne's application, accompanied as it was by extensive documentation, was the complete and full submission she wished to have considered by the committee.
  1. [85]
    Ms Colebourne says procedural unfairness arose from her not being given a 'hearing', including 'a chance to respond to the committee's views, answer questions or provide additional information'.  I note that the Guideline does not require the VEC to provide an employee with an opportunity to respond to their views, answer questions or provide additional information. Procedural fairness may arise as an issue if the Guideline provided for these things and Ms Colebourne was not afforded them.
  1. [86]
    I accept the Respondent's submission that Ms Colebourne's application was properly considered and there is no evidence before me that Ms Colebourne was not afforded procedural fairness. Appeal Ground 3 cannot succeed.

Appeal Ground 4: The decision maker failed to adequately consider the seriousness of the reasons and evidence provided in the exemption, and inappropriately weighted considerations

  1. [87]
    Ms Colebourne's reasons for appeal address this appeal ground by raising matters I broadly summarise here:
  • The decision does not appear to have had sufficient regard to the Human Rights Compatibility Statement and the considerations and commitments contained within the document.  Ms Colebourne says that there are 'other ways to achieve the purpose' than the limits on her human rights given that her work involves no contact with operational police officers, frontline support officers or fontline officers or members of the public and that she works from home one day a week
  • She has not been provided with any information from the employer on the specifics of the health and safety risk of me performing her role, or appropriate control measures.
  • She provided information to the decision maker that she suffers from anxiety and her health is directly impacted by anxiety about the COVID-19 vaccines and potential impacts on her and the relationship with her loved ones.  Being forced to be vaccinated against her will or lose her job is exacerbating her condition.
  1. [88]
    In submissions relating to this ground of appeal, Ms Colebourne again talks about deficiencies in the content of the reason she received.  I have dealt with this above and will not address it again here.
  1. [89]
    Ms Colebourne's submissions again contend that the work she does can be done in alternative ways that would mitigate risk without impinging on her human rights, for example: working from home, spacing her desk away from colleagues and use of appropriate personal protective equipment.
  1. [90]
    The Respondent submits that a significant proportion of Ms Colebourne's submissions regarding this ground of appeal are irrelevant.
  1. [91]
    With regard to Ms Colebourne's submission that alternative measures could be put in place, the Respondent says that the Direction for COVID vaccinations is 'a permanent position' and that 'no amount of alternative working arrangements can be undertaken on a permanent basis'.  For example, the Respondent says that working from home, while available for short periods of time is not a longer-term option.

At some point the Appellant would be required to attend the workplace and her very exposure to other workers, use of joint facilities including bathrooms, lifts and shared entry and exit areas can expose all workers to a higher risk of the virus spreading. 

  1. [92]
    The Respondent says that evidence provided by the Deputy Commissioner in Brassell-Dellow and accepted by the Commission is that there was significant communication to all QPS employees as part of the Direction issued by the Commissioner of Police.  The Respondent submits that the messaging was and is about all employees and all workplaces for the Respondent and it was clear that the Direction applied to each and everyone employed by the Respondent.
  1. [93]
    In further pointing to the Deputy Commissioner's evidence in that matter, the Respondent says that the Human Rights Capability Statement was considered by the Commissioner of Police in deciding to issue the Direction.  The Respondent says that 'the Assessment report considered the QPS workplaces as a whole and individual work locations were not nor were they required to be conducted individually'.
  1. [94]
    The Human Rights Compatibility Statement states:

When making individual exemption decisions under the direction, the Commissioner of Police (or delegate) will need to separately consider human rights and act compatibly with human rights under s 58 of the Human Rights Act 2019.  However, because comprehensive consideration has already been given to human rights in this compatibility assessment, the consideration given to human rights for each exemption decision will not need to be as detailed.

  1. [95]
    I have reviewed Ms Colebourne's application for exemption and note that she makes a reference to human rights by bringing the VEC's attention to the dissenting decision of Deputy President Dean in the Fair Work Commission matter of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015. I note that the paragraph Ms Colebourne directs the VEC's attention to is to Australia's obligations under the International Covenant on Civil and Political Rights,[22] specifically Article 7 'that no one shall be subjected without his free consent to medical or scientific experimentation'.  I note that s 17(c) of the Human Rights Act 2019 (Qld) provides that a person 'must not be subjected to medical or scientific experimentation or treatment without the person's full, free and informed consent'.  I further note that the Human Rights Compatibility Statement[23] considered this section and addresses it under the heading 'human rights limited' on page 2 of the document.
  1. [96]
    There is no evidence before me that the VEC was unaware of the Human Rights Compatibility Statement considered by the Commissioner of Police in making the Direction or that Ms Colebourne's human rights were not considered in making the decision not to grant the exemption.  As has been previously canvassed, it is not necessary for the reasons for decision to include every matter considered by the delegate.
  1. [97]
    With regard to Ms Colebourne's submissions addressing her health and family relationships and the anxiety she says was experiencing as a result of the vaccine mandate, the Respondent says that Ms Colebourne 'provided no specific medical contraindications, religious or other exceptional reasons to support an exemption application'.  This matter was addressed above.  It is clear that Ms Colebourne did not provide evidence to support these submissions.
  1. [98]
    There have been no submissions made with regard to this fourth ground of appeal that serve to make the decision not to grant the exemption unfair or unreasonable.
  1. [99]
    For the foregoing reasons, I find that the decision communicated to Ms Colebourne on 15 December 2021 informing her that her application for exemption from the vaccination was not supported was fair and reasonable.  The decision is confirmed and the appeal is dismissed.

Footnotes

[1]  Commissioner of Police Direction – Mandatory COVID-19 Vaccination and Mask Requirements for Police Officers and Certain Staff Members, Human Rights Compatibility Statement, Katarina Carroll, Commissioner Queensland Police Service 7 September 2021.

[2]  COVID-19 Vaccination Exemption Process, Queensland Police Service Guidelines Effective date: 21 September 2021.

[3]  The Guideline, [26], [28].

[4]  Attached to Respondent's submissions 23 December 2021.

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

[6]  Appeal Notice filed 8 December 2021, sch A.

[7]  Appeal notice filed 8 December 2021, [1].

[8]  Appeal notice filed 8 December 2021, [2].

[9] Decision relates to a different person by the name of Colebourne.

[10] Morison, [48]-[49].

[11]  Appeal Notice filed 8 December 2021.

[12] Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414 [31], referring to Gilmour v Waddell & Ors [2019] QSC 170, [207] citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [63]-[76].

[13]  Respondent submissions filed 23 December 2021, [23].

[14]  Respondent submissions filed 23 December 2021, [24].

[15] Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016, [51].

[16] Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016, [54].

[17]  Guideline, [13].

[18]  Including: pending legal actions; reports about reactions from the COVID-19 vaccination; Fair Work Commission Guidelines; the FWC decision in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015; COVID-19 vaccinations are only provisionally approved; a suspicion that QPS is in breach of the Workplace Health and Safety Act.

[19] Russell v Duke of Norfolk [1949] 1 All ER 109 Tucker LJ, [118] cited in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) CLR 546 [552].

[20] Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016, [54].

[21] Morison, [49].

[22] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 99 UNTS 171 (entered into force 23 March 1976).

[23]  Commissioner of Police Direction – Mandatory COVID-19 Vaccination and Mask Requirements for Police Officers and Certain Staff Members, Human Rights Compatibility Statement, Katarina Carroll, Commissioner Queensland Police Service 7 September 2021.

Close

Editorial Notes

  • Published Case Name:

    Colebourne v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Colebourne v State of Queensland (Queensland Police Service)

  • MNC:

    [2022] QIRC 40

  • Court:

    QIRC

  • Judge(s):

    Member Pidgeon IC

  • Date:

    17 Feb 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
Brasell-Dellow v State of Queensland, (Queensland Police Service) [2021] QIRC 356
2 citations
Jump To
Cite 1 - [2021] QIRC 356
Cite 2 - [2021] QIRC 356
Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16
6 citations
Jump To
Cite 1 - [2022] QIRC 16
Cite 2 - [2022] QIRC 16
Cite 3 - [2022] QIRC 16
Cite 4 - [2022] QIRC 16
Cite 5 - [2022] QIRC 16
Cite 6 - [2022] QIRC 16
Gilmour v Waddell [2019] QSC 170
1 citation
Jump To
Cite 1 - [2019] QSC 170
Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015
3 citations
Jump To
Cite 1 - [2021] FWCFB 6015
Cite 2 - [2021] FWCFB 6015
Cite 3 - [2021] FWCFB 6015
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
1 citation
Jump To
Cite 1 - (2013) 249 CLR 332
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
4 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Cite 4 - [2020] QIRC 203
R v Commonwealth Conciliation and Arbitration Commission (1969) CLR 546
1 citation
Jump To
Cite 1 - (1969) CLR 546
Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414
2 citations
Jump To
Cite 1 - [2021] QIRC 414
Cite 2 - [2021] QIRC 414
Russell v Duke of Norfolk (1949) 1 All ER 109
1 citation
Jump To
Cite 1 - (1949) 1 All ER 109

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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