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- Temple v State of Queensland (Department of Education)[2024] QIRC 298
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Temple v State of Queensland (Department of Education)[2024] QIRC 298
Temple v State of Queensland (Department of Education)[2024] QIRC 298
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Temple v State of Queensland (Department of Education) [2024] QIRC 298 |
PARTIES: | Temple, Paul Anthony (Appellant) & State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2022/786 |
PROCEEDING: | Public Sector Appeal – Appeal against a disciplinary decision |
DELIVERED ON: | 16 December 2024 |
MEMBER: | Caddie IC |
HEARD AT: | On the papers |
ORDER: | Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) the appeal is dismissed. |
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public sector appeal – appeal against a disciplinary decision – where appellant is employed by the State of Queensland (Department of Education) as an Experienced Senior Teacher – where Employment Direction 1/22 – COVID-19 Vaccinations required the appellant to receive the first dose of a COVID-19 vaccine by 17 December 2021, the prescribed number of doses of a COVID-19 vaccine by 23 January 2022, and to provide evidence of such vaccination by 24 January 2022 – where appellant did not comply – where respondent imposed a disciplinary penalty of reprimand and a reduction in remuneration level for a period of 18 weeks – material indicates submissions similar to those which have been unsuccessfully raised by other appellants before the commission – consideration of whether to hear the appeal – appeal has no prospects of success – appeal dismissed. |
LEGISLATION: | Human Rights Act 2019 (Qld) ss 13, 17, 25(b), 34, 58. Industrial Relations Act 2016 (Qld) s 562A. Privacy Act 1988 (Cth) ss 6, 16B. Public Sector Act 2022 (Qld) Ch 3 Pt 10. |
CASES: | Bakhash v State of Queensland (Department of Education) [2022] QIRC 362. Batchelor v State of Queensland (Department of Environment and Science) [2022] QIRC 252. Bowcock v State of Queensland (Department of Education) [2024] QIRC 28. Carr v State of Queensland (Department of Education [2024] QIRC 210. Daunt v State of Queensland (Department of Education) [2024] QIRC 251. Davenport v State of Queensland [2024] QIRC 206. Graf v State of Queensland (Department of Education) [2022] QIRC 451. Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2. Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320. McPaul v State of Queensland (Queensland Health) [2022] QIRC 175. Meades v Meades [2012] ABQB 571; [2013] 3 WWR 419. Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058. Nuske v State of Queensland (Department of Education) [2023] QIRC 199. O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283. Sankey v State of Queensland (Department of Education) [2022] QIRC 197. Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39. Stacey v State of Queensland (Department of Education) [2024] QIRC 220. Sturgess v State of Queensland (Department of Education) [2024] QIRC 236. Tadeo v State of Queensland (Department of Education) [2022] QIRC 177. Thorley v State of Queensland (Department of Education) [2024] QIRC 26. Tilley v State of Queensland (Queensland Health) [2022] QIRC 2. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; [1988] HCA 55. |
Reasons for Decision
- Introduction
- [1]On 12 September 2022, Mr Paul Temple; employed as an Experienced Senior Teacher at William Ross State High School; filed an appeal against the disciplinary action decision of Ms Anne Crowley (Assistant Director-General, Human Resources, Department of Education). The decision imposes the penalty of a reprimand and a reduction in remuneration level for a period of 18 weeks.
- [2]The penalty was imposed due to Mr Temple's failure to receive two doses of a COVID vaccine, leading to the disciplinary finding that he had contravened, without reasonable excuse, a direction. The decision on penalty was made following conclusion of the required steps in the disciplinary process.
- [3]By cl 5 of the Employment Direction 1/22 – COVID-19 Vaccinations dated 10 March 2022 ('the Direction'), Mr Temple was required to:
- receive the first dose of a COVID-19 vaccine by 17 December 2021;
- receive the prescribed number of doses of a COVID-19 vaccine by 23 January 2022; and
- provide evidence of such vaccination by 24 January 2022.
- [4]Mr Temple has questioned the legality and constitutionality of the Direction since he received the first show cause notice. On 24 June 2022 he responded:
- •The directive for me to receive a vaccination is unconstitutional.
- •My right to refuse the vaccination is protected under the Nuremberg Code, of which Australia is a signatory.
- •The Queensland Human Rights Commission has stated that vaccine mandates for school teachers is unlawful.
- •The vaccine has been shown to be neither safe and effective.
- •I have numerous friends and family that have had serious medical complications arising from
from | receiving the Covid-19 vaccine. |
- •There is foetal tissue taken from aborted babies in the vaccine. This violates my religious and personal beliefs.
- •Forcing me to receive a medical treatment under duress goes against my fundamental rights which are not given to me by the government, but are given to me by God.
- [5]Mr Temple signed his show cause response with a red ink fingerprint stamp and the words "All rights reserved. V.C." V.C. is shorthand for vi coactus; a Latin term meaning 'having been forced' or 'having been compelled.' Both phrases are associated with the organised pseudo-legal commercial argument (OPCA) movement[1] as misconceived attempts to make one's signature invalid or meaningless.
- [6]Mr Temple does not dispute he did not comply with the requirements of the Direction. His reasons for non-compliance are based on a standard set of generic objections previously considered and rejected by the Commission.
- [7]
- [8]By email dated 11 September 2023, Mr Temple requested information regarding whether costs may be awarded against him. The Department replied on 15 September 2023, indicating that the State would seek an order for costs, and that Mr Temple should seek independent legal advice.
- [9]In response, Mr Temple by email on 15 September 2023 stated the following:
After much deliberation, I have come to the decision that I will not continue with my appeal. I wanted to make this clear, that my decision is based in no way on the validity of my case. I am still adamant that the disciplinary action was unfounded and wrong. The only aspects of this case that have forced my decision in this direction is the peril of financial costs and the belief that I would not receive a fair and just hearing. Through this whole process I have been treated unfairly like a criminal. I have found the whole process degrading and it has destroyed any skerrick of faith I had in due process in this state. The way you have treated me and others in my position is shameful, however, we will all have to answer to God one day.
- [10]In response on the same date, the Department provided by email a Form 27: Request to discontinue proceeding, for Mr Temple to complete and file. Mr Temple did not file the form.
- [11]The matter was subject to a further callover mention on 18 April 2024. Mr Temple stated at the callover that he wanted to proceed.[5] Directions were subsequently issued regarding the Commission's discretion not to hear the appeal under s 562A(3) of the Industrial Relations Act 2016 (Qld) ('IR Act').
- [12]The issue before the Commission is whether the appeal should be subject to an exercise of discretion pursuant to s 562A(3)(b), because the appeal is either frivolous or vexatious, misconceived or lacking in substance, or should not be heard for another compelling reason.
- [13]That is the question subject to this decision.
- Relevant legislation
- [14]
- 562ACommission may decide not to hear particular public service appeals
- …
- (3)The commission may decide it will not her a public service appeal against a decision if –
- …
- (b)the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal –
- (i)is frivolous or vexatious; or
- (ii)is misconceived or lacks substance; or
- (iii)should not be heard for another compelling reason.
- [15]I am satisfied that in accordance with Ch 3 Pt 10 of the Public Sector Act 2022 (Qld), the disciplinary action decision is one that may be appealed against, that Mr Temple is entitled to do so, and that the appeal was lodged within the required time.[7] There are no threshold jurisdictional issues that would lead me to decline to hear the appeal.
- [16]For context, I note Public Sector Appeals are a review of the decision appealed against based on the evidence available and the process followed in coming to the decision. Any findings reasonably open to the decision-maker are not expected to be disturbed on appeal, should the appeal proceed.[8]
- Mr Temple's arguments in support of non-compliance and the appeal being heard
- [17]Mr Temple's show cause response, Notice of Appeal, and submissions proper in summary argue that:
- The Direction is unconstitutional and a violation of the Nuremberg Code;
- The Direction was not lawful and reasonable, as 'COVID-19 has not proven to be a significant threat to human health,' and was not a risk to public health. Mr Temple also claims he has friends and family that have had serious medical complications arising from receiving the COVID-19 vaccine;
- The Direction violated the Privacy Act 1988 (Cth) ('Privacy Act') regarding his health information;
- The decision-maker did not consider Mr Temple's human rights – particularly his right not to be subject to medical treatment without his consent pursuant to s 17 of the Human Rights Act 2019 (Qld) ('HR Act'). He further submits the decision in Johnston & Ors v Carroll[9] found that the Direction breached s 58 of the HR Act, and the Queensland Human Rights Commission ('QHRC') has stated that vaccine mandates for school teachers are unlawful;
- Mr Temple's religious beliefs prevent him from taking the vaccine because it contains "foetal tissue taken from aborted babies." His fundamental rights are not given to him by the Government, but are given to him by God;
- Mr Temple was already punished when his school's principal publicly reprimanded him by publishing in the school newsletter that he was unable to provide instrumental music instruction in schools due to not being vaccinated. He submits that at first instance, his reputation was unlawfully attacked per s 25(b) of the HR Act, and further submits that any further action would be double punishment in contravention of s 34 of the HR Act; and
- Mr Temple should only have been disciplined with a reprimand; not both a reprimand and reduction in remuneration, as the financial hardship negatively impacted his human rights. In the alternative, the Department should have required him to complete online learning.
- The Department argues the appeal should not be heard
- [18]The Department filed its submissions on 31 May 2024. These submissions were identical in tenor to the submissions it has previously filed in similar appeals, including that Mr Temple has no reasonable excuse for his failure to comply with the Direction, the Direction has repeatedly been found to be lawful and reasonable, and his arguments are not unique and do not warrant further use of the Commission's resources.[10]
- Should I decline to hear the appeal?
- [19]It is not disputed that Mr Temple failed to comply with the Direction to be vaccinated. This led to the disciplinary finding that he contravened, without reasonable excuse, a direction appropriately given. He was liable to disciplinary action.
- [20]Mr Temple's submissions regarding the application of the Australian Constitution and the Nuremberg Code can appropriately be dismissed. These are submissions which unfortunately are commonly made before the Commission in COVID-19 disciplinary appeals.[11]
- [21]It cannot be said that the Direction violates the Australian Constitution. It is a fundamental legal principle that the States have plenary powers to legislate with respect to matters other than those of which the Commonwealth has exclusive powers.[12] This includes matters of health and employment. This Commission, as well as other Courts, have repeatedly and appropriately given no weight to submissions of this nature.[13]
- [22]It also cannot be said that the Direction violates the Nuremberg Code, as the vaccines relevant to the Direction are not experimental – they have been approved by the Therapeutic Goods Administration (TGA) and are not used in an experimental or research capacity. Taking approved medicines cannot be characterised as experimental, nor can further study of the approved medicines.[14]
- [23]Mr Temple's submissions regarding alleged breaches of the Privacy Act are also misguided. Section 16B of the Privacy Act provides that health information may be collected in permitted health situations, including where the collection is required or authorised by or under an Australian law. Australian laws relevantly include State Acts, regulations, or any other instrument made under an Act.[15] The Direction is such an instrument, and Mr Temple's health information was required by the Department under the Direction.[16] Furthermore, any concerns Mr Temple had with his school's newsletter allegedly breaching his privacy were not raised by him in the show cause process and were not before the decision-maker.
- Whether the Direction breached Mr Temple's human rights
- [24]Mr Temple's arguments regarding his human rights are matters which the Commission has repeatedly dealt with.[17] Section 13 of the HR Act makes it clear that there are circumstances in which human rights may be lawfully limited. The decision letter expressly considered Mr Temple's human rights, acknowledged that the disciplinary action may limit Mr Temple's human rights, and decided that the limitation was reasonably and demonstrably justified and in the public interest. This level of consideration has repeatedly been found by the Commission to be fair and reasonable,[18] and in accordance with the Direction.[19]
- [25]Regarding Mr Temple's submissions about the decision in Johnston,[20] these have also been rejected by the Commission in detail. In Sturgess v State of Queensland,[21] I said that the decision in Johnston turned on its own facts and has no bearing on the Direction in question – particularly given that the Commission has no jurisdiction to make a declaration or finding on the lawfulness of the Direction.[22]
- Vaccine hesitancy is not unique
- [26]Mr Temple's submissions regarding the safety and efficiency of the vaccine amounts to vaccine hesitancy.
- [27]In attempting to suggest that COVID-19 was not a risk to public health, Mr Temple in his Notice of Appeal claims that according to Australian Bureau of Statistics ('ABS') data, 898 people died due to contracting COVID-19 in 2020,[23] and suggests that in some way this figure is insignificant. Apart from not reflecting well on Mr Temple, these arguments are not relevant to my decision regarding the appeal in relation to the decision on disciplinary action.
- [28]The critical point is that it is well-established that the Department is not required to accept or entertain these views, defer to the 'evidence' presented by Mr Temple, or allay Mr Temple's concerns about receiving a COVID-19 vaccine.[24]
- [29]Mr Temple makes further submissions that only a small portion of the general population were at risk from becoming seriously ill from COVID-19, that COVID-19 vaccines "do not reduce the transmission of COVID-19," and that the vaccines have been shown to be neither safe and effective. These are all matters which have previously been criticised by the Commission.[25]
- [30]The Commission has repeatedly scrutinised whether vaccine hesitancy (howsoever described) is a reasonable basis to fail to comply with a lawful and reasonable direction, and have found it is not.[26] There is nothing unique in the issues being raised by Mr Temple not already dispatched by the Commission. Vaccine hesitancy is not a reasonable excuse for failing to comply with the Direction.
- Mr Temple's religious views are not relevant
- [31]Mr Temple has only described his religious beliefs in a vague sense, with reference to an objection to "foetal tissue taken from aborted babies in the vaccine." However, the Direction does not provide for religious or spiritual exemptions.[27] Such was specifically considered by the decision-maker, and the Commission has not found this to be unreasonable.[28] Mr Temple's religious views are not relevant to the appeal.
- Whether the disciplinary action is excessive
- [32]Mr Temple's submissions that he has already suffered as the financial hardship while he has not been working, as a reason to negate the imposition of the further financial penalty, misconceives the difference between the consequences of his own decision to be unvaccinated and the penalty for his conduct of failing to comply with a direction without reasonable excuse. This issue is comprehensively laid out by Dwyer IC in Stacey v State of Queensland:[29]
- [49]All of the hardship detailed in Mr Stacey's submissions was not a penalty imposed by the Department for noncompliance. It was a hardship that he imposed in himself and his family through his choice not to be vaccinated. Mr Stacey was entirely free to have made that choice, but the consequences of that choice are his responsibility.
- [50]By contrast, the penalty imposed by the decision is not a penalty for being unvaccinated. That fact is merely part of the particulars of the misconduct giving rise to the penalty. The penalty is imposed because Mr Stacey failed to comply with a lawful and reasonable direction.
- [51]So, to the extent that Mr Stacey asserts he has already been punished for his misconduct, he is incorrect.
- [33]Those considerations are relevant here, leading me to also conclude that to the extent Mr Temple asserts he has already been punished for his misconduct, he is incorrect. Furthermore, Mr Temple's submissions that this amounts to double punishment under s 34 of the HR Act are misconceived, as s 34 only relates to double punishment of offences for which there has already been a conviction or acquittal – such is not the case here. Further, Mr Temple's submissions that his reputation has been 'unlawfully attacked' within the meaning of s 25(b) of the HR Act are not supported on any view.
- Conclusion
- [34]Mr Temple has been provided with several opportunities to reflect upon his case and the legal authorities which speak to it. At the mention held on 4 September 2023 before the Commission, Mr Temple stated as follows:[30]
- APPLICANT TEMPLE: Well, I would like to state my case first if that's - - -
- HIS HONOUR: Yes.
- APPLICANT TEMPLE: - - - allowed.
- HIS HONOUR: Yes.
- APPLICANT TEMPLE: Okay, a mandate is essentially just a request and has no official standing within the law. A mandate only truly comes into force when the person or businesses who is requested to take part agrees. Let me quote the right of entry to commercial premises, Commonwealth - - -
- HIS HONOUR: No, no. Don't.
- APPLICANT TEMPLE: - - - Privacy Act - - -
- HIS HONOUR: Please. Please don't. Look, I can save you a lot of time. The law of the State of Queensland has been made clear.
- APPLICANT TEMPLE: Okay.
- HIS HONOUR: The mandate that was - - -
- APPLICANT TEMPLE: Okay.
- HIS HONOUR: - - - issued is lawful, all right? So don't take waste your time talking about things - - -
- APPLICANT TEMPLE: Okay.
- HIS HONOUR: - - - that don't relate to the Commission.
- APPLICANT TEMPLE: Yeah, I won't waste your time anymore with legal points of view but I will talk about my personal points of view if that's okay?
- HIS HONOUR: Okay, yes.
- APPLICANT TEMPLE: Thank you very much. Forcing me to receive a medical treatment under duress goes against my fundamental rights which are not given to me by the government but are given to me by God. The foetal tissue taken from aborted babies was in the vaccine. This violates my religious and personal beliefs. I have numerous friends and family that had serious medical complications arriving – rising from receiving the COVID-19 vaccine, including my sister, who had a heart attack. The vaccine has been shown to be neither safe nor effective. Queensland Human Rights Commission has stated that the vaccine mandate for school teachers were unlawful.
- HIS HONOUR: No, they haven't.
- APPLICANT TEMPLE: Okay, what about the Nuremberg Code, your Honour?
- HIS HONOUR: It doesn't apply.
- APPLICANT TEMPLE: Doesn't apply? Well that's really wonderful to know. Thank you very much for that, and I'm [indistinct]
- HIS HONOUR: Well, you only have to read a decision of Mr Justice Beech-Jones in New South Wales where all of these matters were dealt with by the – he's the Chief Judge of the Common Law Division. All of those matters were dealt with. They don't have application here. If you look at the Human Rights Act here, you look at the decision of Nuske, you look at the decision of Mocnik and others, these issues have been canvassed and been dealt with, all right?
- I don't want to say anything about your own personal views, you're entitled to hold them, but there are consequences that flow from the decisions that you make and that's what I've got to deal with, all right? That's all.
- So that's the law as it currently stands in this state and I might say, throughout the country. All right? Is there anything else you wanted to say? I just need to know what you want to do.
- APPLICANT TEMPLE: I totally don't agree with anything you're saying.
- [35]Returning to the relevant considerations for the exercise of my discretion to decline to hear the appeal, I consider that the submissions made by Mr Temple have not established an arguable case for the appeal.
- [36]The arguments in relation to the Direction not being lawful and not consistent with human rights are misconceived for the reasons outlined above, as are the arguments regarding the financial penalty already suffered. All of the arguments raised by Mr Temple have been considered and dismissed by the Commission on numerous occasions.
- [37]This leads me to conclude that the appeal has no reasonable prospects of success, and it would not be in the public interest for the Commission's resources to be further expended.
- [38]For these reasons I decline to hear the appeal.
- Order
- 1.Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) the appeal is dismissed.
Footnotes
[1] Coined by Rooke ACJ in Meades v Meades [2012] ABQB 571; [2013] 3 WWR 419.
[2] Nuske v State of Queensland (Department of Education) [2023] QIRC 199.
[3] Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058 ('Mocnik').
[4] T 1-16 ll 13-45.
[5] T 1-7 I 43 – T 1-8 l 26.
[6] Emphasis added.
[7] Public Sector Act 2022 (Qld) ss 129, 131(1)(c), 133(c); Industrial Relations Act 2016 (Qld) s 564.
[8] O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283, [10].
[9] Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 ('Johnston'). The Appellant imprecisely refers to this case in their submissions as 'the Supreme Court decision by Justice Glenn Martin which declared the COVID mandate for police officers was unlawful.'
[10] I have previously set out these submissions in Sturgess v State of Queensland (Department of Education) [2024] QIRC 236 ('Sturgess') at [23].
[11] See e.g. McPaul v State of Queensland (Queensland Health) [2022] QIRC 175.
[12] Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; 166 CLR 1.
[13] See e.g. Tilley v State of Queensland (Queensland Health) [2022] QIRC 2; Batchelor v State of Queensland (Department of Environment and Science) [2022] QIRC 252; Graf v State of Queensland (Department of Education) [2022] QIRC 451. See also Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320.
[14] See also Daunt v State of Queensland (Department of Education) [2024] QIRC 251, [32]-[35].
[15] Privacy Act 1988 (Cth) s 6, definition of 'Australian law'.
[16] Thorley v State of Queensland (Department of Education) [2024] QIRC 26, [16].
[17] See e.g. Sankey v State of Queensland (Department of Education) [2022] QIRC 197 ('Sankey'); Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 ('Bakhash'); and Bowcock v State of Queensland (Department of Education) [2024] QIRC 28.
[18] See for example Thorley (n 16).
[19] Bakhash (n 17); Mocnik (n 3).
[20] n 9.
[21] Sturgess (n 10).
[22] Ibid, [33]-[38]. See also Sankey (n 17), [30]-[31]; Carr v State of Queensland (Department of Education [2024] QIRC 210.
[23] The actual number of people who died due to COVID-19 in 2020, according to ABS statistics, is 906: Australian Bureau of Statistics, COVID-19 Mortality in Australia: Deaths registered until 30 November 2023 (20 December 2023).
[24] Sankey (n 17), [43]; Tadeo v State of Queensland (Department of Education) [2022] QIRC 177, [47]-[49].
[25] See e.g. Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39.
[26] See e.g. the authorities set out by Pratt IC in Davenport v State of Queensland [2024] QIRC 206 at [16]-[26].
[27] Nicholson v State of Queensland (Department of Education) [2022] QIRC 271, [40].
[28] Ibid.
[29] Stacey v State of Queensland (Department of Education) [2024] QIRC 220.
[30] T 1-13 l 1 – T 114 l 30.