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Johnston v Commissioner of Police & Anor; Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health QSC 275
SUPREME COURT OF QUEENSLAND
Johnston & Ors v Commissioner of Police & Anor; Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health & Ors  QSC 275
DYLAN MARK JOHNSTON & ORS
KATARINA RUZH CARROLL (APM, COMMISSIONER OF THE QUEENSLAND POLICE SERVICE) & ANOR
BERNARD WITTHAHN & ORS
JOHN WAKEFIELD (CHIEF EXECUTIVE OF HOSPITAL AND HEALTH SERVICES AND DIRECTOR GENERAL OF QUEENSLAND HEALTH) & ORS
11254 of 2021
11258 of 2021
Supreme Court at Brisbane
26 October 2021
20 October 2021
Strike out paragraphs 5 and 6 of the application in each proceeding.
ADMINISTRATIVE LAW – JUDICIAL REVIEW – STANDING TO INSTITUTE MATTERS – PARTICULAR CASES – where the respondents issued Directions requiring the applicants to receive COVID-19 vaccinations – where the applicants sought judicial review of the respondents’ decisions to issue Directions – where the applicants were “persons aggrieved” within s 7 of the Judicial Review Act
ADMINISTRATIVE LAW – JUDICIAL REVIEW – where the subject matter of the judicial review applications were industrial matters – where the Industrial Relations Commission has exclusive jurisdiction to hear and decide questions arising out of an industrial matter – where the exclusive jurisdiction provisions of the Industrial Relations Act could not exclude the supervisory jurisdiction of the Supreme Court to determine questions as to whether there has been an excess of executive power – characteristics of Courts under Chapter III of the Constitution – where the Supreme Court has jurisdiction to hear the applications pursuant to its supervisory jurisdiction, Part 5 Judicial Review Act – whether the Supreme Court has jurisdiction to hear the applications pursuant to the statutory jurisdiction given to it under Part 3 of the Judicial Review Act
Civil Proceedings Act 2011 (Qld), s 10
Crime and Corruption Act 2001 (Qld), s 219E
Hospital and Health Boards Act 2011 (Qld), s 75
Human Rights Act 2019 (Qld), s 15(1), s 17(c), s 20, s 21, s 48, s 50, s 51, s 58
Industrial Relations Act 2016 (Qld), s 9, s 448, s 449, s 450, sch 1
Judicial Review Act 1991 (Qld), s 7, s 10, s 12, s 13, s 18, s 19, s 20, s 21, s 22, s 41, s 43, s 44, s 47, sch 1, sch 2
Police Service Administration Act 1990 (Qld), s 9.1A
Barton & Anor v The Queen & Anor (1980) 147 CLR 75, cited
Irwin v Stewart (Commissioner of Police) & Anor  QSC 350, considered
Kable v Director of Public Prosecutions (NSW) (1995-1996) 189 CLR 51;  HCA 24, cited
Kirk v Industrial Court (NSW) (2010) 239 CLR 531;  HCA 1, followed
Maxwell v The Queen (1995-1996) 184 CLR 501;  HCA 46, cited
Mutual Life & Citizens’ Assurance Company Ltd v Attorney‑General (Qld) (1961) 106 CLR 48, considered
Netstar Pty Ltd v Caloundra City Council  1 Qd R 287;  QCA 296, considered
Re Tracey; Ex parte Ryan (1989) 166 CLR 518, cited
Thomson v Minister for Education  1 Qd R 83;  QSC 9, considered
D Villa SC, with W Liu and KS Byrne, for the applicants
G del Villar QC, with B McMillan and R Berry, for the respondents in 11254 of 2021
JM Horton QC, with B McMillan, for the respondents in 11258 of 2021
GA Thompson QC SG, with K Blore, for the Attorney-General intervening
P Morreau for the Queensland Human Rights Commission intervening
Alexander Law for the applicants
Crown Law for the respondents
Crown Law for the first intervener
Queensland Human Rights Commission for the second intervener
- In matter number 11254/21 seven police officers apply for statutory orders of review pursuant to s 20 of the Judicial Review Act 1991 (Qld) (JRA) and for declarations under Part 5 of the JRA, as well as in the Court’s inherent and statutory jurisdiction. They seek to review the decision of the first respondent Commissioner to issue the Instrument of Commissioner’s Direction No. 12 dated 7 September 2021 (the Police Direction). The Police Direction requires all police officers and some frontline staff members (as defined) to receive one COVID‑19 vaccine by 4 October 2021; a second COVID-19 vaccine by 24 January 2022, and to provide evidence of their having done so if requested by the Commissioner or her delegate. The Police Direction provided for exemption from these requirements on medical and religious grounds, or if there were other “exceptional circumstances”.
- In matter number 11258/21 one nurse employed in the public health system, and 12 ambulance officers bring an application in the same terms against the Chief Executive of Hospital and Health Services and the Commissioner of Queensland Ambulance Services. This application challenges the Instrument of Chief Executive’s Health Employment Directive No. 12/21 dated 10 September 2021 (Health Direction) and a direction sent to QAS staff by the Acting Commissioner of Queensland Ambulance Services on 11 September 2021 together with the Queensland Ambulance Service COVID-19 Vaccine Requirements: Human Resource Procedure (version 1.0) (QAS Direction).
- The Health Direction provided that Queensland Health employees were to receive at least one dose of COVID-19 vaccine by 30 September 2021; a second dose by 31 October 2021; maintain vaccine protection, and provide evidence of vaccination to designated people within Queensland Health. It provided that compliance with the direction was “mandatory”. It also provided, “where, in exceptional circumstances, an employee may not be able to be vaccinated, consideration will be given in accordance with the existing employment framework and relevant law”.
- The QAS Direction was similar. The QAS Human Resource Procedure (version 1.1, as at 12 October 2021) provides that, “The vaccination requirements detailed within this procedure are a mandatory condition of employment for all QAS employees identified as being within high risk groups …”. It provides that an employee may complete an exemption application form and that exemptions will be considered where the employee has a recognised medical contraindication, a genuinely held religious belief or where there are other exceptional circumstances.
- Each of the Directions was made under an enactment.
- Solicitors and counsel acting for the applicants in both applications were the same and the matters have been heard together. On 30 September 2021 Boddice J made orders which suspended the operation of the relevant Directions against each of the applicants for a limited time. That time was extended by me on 22 October 2021 until trial or further order.
- The orders made by Boddice J on 30 September listed the matters to be heard over two days commencing 20 October 2021. I reviewed the matter on 12 October 2021 and counsel for all parties were of the view that the matters could not be heard over two days on the dates allocated. I made orders for the hearing of three issues which might be described as preliminary to the hearing of the substance of the applications on 20 and 22 October. The substance of the applications will be heard after determination of these preliminary issues. The preliminary issues were:
- (a)whether this Court had jurisdiction to entertain the applications having regard to the provisions of the Industrial Relations Act 2016 (Qld) (IRA);
- (b)whether this Court, even if it has jurisdiction, should hear these applications having regard to ss 12 and 13 of the JRA and the fact that there are similar proceedings in the Queensland Industrial Relations Commission (D/2021/131);
- (c)whether or not the applicants were persons aggrieved within the meaning of s 7 of the JRA.
By 20 October 2021 the scope of argument on these three preliminary matters had narrowed considerably.
- The respondents in both applications conceded that the applicants were persons aggrieved within the meaning of s 7 of the JRA. It seems to me that concession was rightly made. The applicants are all employed as police officers or by the Department of Health; their employment is in each case subject to one of the three Directions outlined above, and all of them have an objection to receiving a COVID-19 vaccine. Only one of the applicants has applied for an exemption, and that exemption was refused. The applicants have all explained on oath why they do not wish to have a COVID‑19 vaccine. It seems to me likely that their objections would not result in an exemption on one of the grounds provided for in the Directions. In those circumstances they are, in my view, persons whose interests are adversely affected by the Directions.
- I do note that this was the basis upon which the applicants’ written submissions claimed that the applicants were persons aggrieved, and the basis upon which the respondents conceded that the applicants were persons aggrieved. The applications recite that the applicants are aggrieved by the decisions for other reasons which are contentious, factually and legally, as between the parties. The relevant part of the application against the Commissioner for Police provides:
- “1.The Decision purports to mandate compulsory and involuntary vaccination of all Officers andMembers, including the Applicants;
- 2.The Decision impairs, affects or removes the Applicants’ fundamental common law rights and statutory rights and obligations;
- 3.The Applicants’ rights and obligations are adversely affected thereby.”
- The relevant part of the proceeding against the Department of Health and QAS is in similar terms. I record for clarity that the respondents to the applications did not concede these matters.
- In fact, because my decision is that this Court has no jurisdiction to hear the applications so far as they rely upon Part 3 of the JRA (see below), this question becomes irrelevant. However, the respondents conceded a similar point, that the applicants have an entitlement to make an application under Part 5 of the JRA because their “interests are, or would be, adversely affected in or by the matter to which the application[s] relates” – s 44. Again, as explained, I think the concession was rightly made.
Jurisdiction of this Court to hear the Applications
- Questions as to the jurisdiction of this Court to hear the applications are raised by the conferral of exclusive jurisdiction to hear industrial matters on the Queensland Industrial Relations Commission by the IRA. Section 9 of that Act provides:
“9 What is an industrial matter
- (1)An industrial matter is a matter that affects or relates to –
- (a)work done or to be done; or
- (b)the privileges, rights or functions of –
- (i)employers or employees; or
- (ii)persons who have been, or propose to be, or who may become, employers of employees; or
- (c)a matter the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.
- (2)However, a matter is not an industrial matter if it is the subject of a proceeding for –
- (a)an indictable offence; or
- (b)a public service appeal.
- (3)Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1.”
- At ss 448-450 the IRA provides as follows:
“448 Commission’s jurisdiction
- (1)The commission may hear and decide the following matters—
- (a)a question of law or fact brought before it or that it considers expedient to hear and decide for the regulation of a calling;
- (b)all questions—
- (i)arising out of an industrial matter; or
- (ii)involving deciding the rights and duties of a person in relation to an industrial matter; or
- (iii)it considers expedient to hear and decide about an industrial matter;
- (c)an industrial dispute referred to the commission under this Act or another Act by a member who has held a conference at which no agreement has been reached;
- (d)all appeals properly made to it under this Act or another Act;
- (e)all matters referred to the commission under this Act or another Act.
- (2)The commission may regulate a calling by an award—
- (a)on application by an organisation, an employer, or 20 employees (who are not members of an employee organisation and not covered by an award) in a calling; or
- (b)on application by the Minister; or
- (c)on its own initiative.
(3) The commission—
- (a)may hold an inquiry into or about an industrial matter on application by an interested person or on its own initiative; and
- (b)must hold an inquiry into or about an industrial matter if the Minister, by notice, directs.
(7) No provision of this Act or another Act limits, by implication, the commission’s jurisdiction.
449 Limitations on jurisdiction
The commission does not have jurisdiction to hear and decide a matter about which another Act excludes—
- (a)the jurisdiction of the commission about the matter; or
- (b)the application of a decision under this Act about the matter.
450 Commission’s jurisdiction is exclusive
The original and appellate jurisdiction conferred on the commission by this Act or another an Act is exclusive of the jurisdiction of the Supreme Court or another court or tribunal, unless otherwise prescribed under this Act or the other Act.”
- The words “affects or relates to” in s 9(1) are very wide. Remarkably there is almost no case law as to how the definition is to be read, or indeed as to previous or interstate definitions. It can be seen that s 9(3) operates to elucidate subsection (1) somewhat and, relevantly here, the schedule provides that the following items are industrial matters:
13 the age, qualification or status of employees, or the mode and conditions of employment or non-employment, including whether a person should be disqualified for employment
16 a claim to dismiss or refuse to employ a particular person or class of person, or whether a particular person or class of person, ought to be continued or reinstated in the employment of a particular employer, considering the public interest, despite common law rights of employers or employees
22 the regulation of relations between employer and employee, or between employees, and to that end the imposition of conditions on –
- (a)the conduct of a calling; and
- (b)the provision of benefits to persons engaged in a calling
- As to Item 22, the term “calling” is defined as including an occupation.
- The Directions do, in my view, affect or relate to the rights of the respondents as employees, and do impose conditions on the conduct of the applicants’ callings. Additionally it seems to me that the Directions claim a right to dismiss in certain circumstances. I find that the matters which are the subject matter of these applications arise from the Directions and are industrial matters, or relate to industrial matters, within the meaning of s 9 of the IRA. I turn to the question of whether or not the IRA precludes this Court dealing with them.
Supervisory Jurisdiction of Supreme Court
- It was common ground between the parties that despite the provisions of the IRA granting exclusive jurisdiction to the Industrial Relations Commission to hear industrial matters, the IRA could not deprive this Court of its jurisdiction to determine questions as to whether there had been excess of executive power. In Kable v Director of Public Prosecutions (NSW) Gummow J cited Deane J in Re Tracey; Ex parte Ryan as to the characteristics of courts described by Ch III of the Federal Constitution. These courts have:
“The power to adjudge guilt of, or determine punishment for, breach of the law, the power to determine questions of excess of legislative or executive power and the power to decide controversies about existing rights and liabilities …”
- In Kirk v Industrial Court (NSW) the High Court said:
“In considering State legislation, it is necessary to take account of the requirement of Ch III of the Constitution that there be a body fitting the description ‘the Supreme Court of a State’, and the constitutional corollary that ‘it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description’.
… accepted doctrine at the time of federation was that the jurisdiction of the colonial Supreme Courts to grant certiorari for jurisdictional error was not denied by a statutory privative provision.
The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts.
And because, ‘with such exceptions and subject to such regulations as the Parliament prescribes’, s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court as the ‘Federal Supreme Court’ in which s 71 of the Constitution vests the judicial power of the Commonwealth.
There is but one common law of Australia. The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this Court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of ‘distorted positions’. And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics.
This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.” (my underlining)
- In this case there is no privative clause, but a grant of exclusive jurisdiction which could, if read literally, have a similar effect. Before me the applicants and respondents took the position that the grant of exclusive jurisdiction had to be construed not to include the supervisory jurisdiction of this Court for, in accordance with the principles just discussed, an attempt to exclude the supervisory jurisdiction of this Court would be invalid. In terms of the applications before this Court that meant that, so far as relief was sought from the Court in its inherent jurisdiction, pursuant to s 10 of the Civil Proceedings Act 2011 (Qld), or pursuant to Part 5 of the JRA, this Court did have jurisdiction to hear the applications. This proposition was not in contest before me, and in my view it is plainly right.
- Part 5 of the JRA is entitled, ‘Prerogative orders and injunctions’. It preserves the Court’s supervisory jurisdiction, although it modifies the form of the application for prerogative relief, and the form which that relief takes. Section 41(1) provides that the prerogative writs of mandamus, prohibition and certiorari are no longer to be issued by the Court. Section 41(2) provides that where this Court had jurisdiction to grant relief or remedy by way of those writs, its jurisdiction continues, but is to be exercised by making an order which is to the same effect as the relief or remedy which would have been granted by the issue of a prerogative writ. Section 43 provides that an application for a prerogative order or a prerogative injunction is to be made by way of an application for review, and s 44 provides that a person is entitled to make application for review, if the “person’s interests are, or would be, adversely affected in or by the matter to which the application relates”. Section 47 provides that the Court may grant a declaration or injunction instead of, or in addition to, a prerogative order if just and convenient.
Jurisdiction Pursuant to Part 3 JRA
- It was argued on behalf of the applicants that this Court also had jurisdiction to hear those parts of their applications which sought relief pursuant to Part 3 of the JRA, entitled, ‘Statutory orders of review’.
- Part 2 of the JRA consists of only one section, s 19, which provides “the court has jurisdiction to hear and determine applications made to it under this Act”. Court is defined so as to mean the Supreme Court. Part 3, by sections 20, 21 and 22, gives this Court a statutory jurisdiction to review decisions made under an enactment at the behest of a person who is aggrieved by such a decision.
- The provisions of Part 3 of the JRA give the Court a statutory jurisdiction distinct from its supervisory jurisdiction. When regard is had to the grounds upon which a person aggrieved may apply for a statutory order of review, it is clear that in some respects the subject matter of this statutory jurisdiction will be substantially the same as parts of the supervisory jurisdiction. The clearest example is probably s 20(2)(c), which provides that a person aggrieved by a decision may apply to the Court for a statutory order of review on the basis that the person who purported to make the decision did not have jurisdiction to make it. Clearly enough, such an applicant would also have grounds to apply for an order in the nature of certiorari in the supervisory jurisdiction of the Court, ie., pursuant to Part 5 of the JRA. Other statutory bases for a statutory order for review are not so clear. For example, s 20(2)(a) provides that a person may apply for a statutory order for review on the basis that there was a breach of the rules of natural justice in relation to the making of the decision complained about. Whether such a complaint would amount to jurisdictional error would depend upon the circumstances of the particular case – see Kirk (above) at pp 569, 572 and 574.
- Here the relief sought by the applicants is primarily declarations that the Directions are invalid. The applicants also seek an injunction restraining the respondents from acting on the Directions. Part 3 of the JRA is one basis among several for the declarations sought. The other bases for declaratory relief are conceded to be within the jurisdiction of the Court. The injunction is claimed pursuant to Part 5 of the JRA, not Part 3, and thus that claim for relief is conceded to be within the jurisdiction of the Court. There is a claim pursuant to Part 3 of the JRA to set the Directions aside.
- The grounds for the relief sought are several. Some are clearly matters which would amount to jurisdictional error – for example, that the Directions were not authorised by the enactment in pursuance of which they were purportedly made. Others, such as the claim that the Directions were made in breach of the rules of natural justice, or were an improper exercise of power because eg., they failed to take into account relevant considerations, may or may not amount to jurisdictional error.
- The respondents say that the claim to a declaration which rests on Part 3 of the JRA and the claim to set the Directions aside pursuant to Part 3 of the JRA are beyond this Court’s jurisdiction. Further, insofar as the grounds for relief amount to jurisdictional error, the Court has power to entertain them pursuant to its supervisory jurisdiction. Insofar as they do not amount to jurisdictional error, but simply amount to matters supporting a statutory order for review under Part 3 of the JRA, the Court does not have jurisdiction because the provisions at ss 448-450 of the IRA take away the Court’s jurisdiction pursuant to Part 3 of the JRA. That Part 3 jurisdiction is not supervisory jurisdiction (unlike Part 5 of the JRA); ss 448-450 of the IRA are valid and effective to remove this Court’s jurisdiction under Part 3 of the JRA and in practical effect, substitute the jurisdiction of the Queensland Industrial Relations Commission. The underlined passage in Kirk (above) is in point. I accept that this submission is correct and will now explain why I reject the applicants’ arguments to the contrary.
- It was argued that because s 19 of the JRA specifically gave the Supreme Court jurisdiction, and because of some of the items in the schedules to the JRA, s 448 of the IRA and these provisions of the JRA should be construed as providing that Part 3 of the JRA was an exception to s 449 of the IRA. Reliance was also placed on ss 10 and 18(1) of the JRA in support of this argument. Section 10 of the JRA provides that rights conferred by the JRA are in addition to any other rights the person has to seek a review of the matter from any court, tribunal or person. Section 18(1) provides that the JRA has effect despite any law in force at its commencement. The IRA was not in force at the time the JRA was enacted. Whether individually or in combination, I cannot see that these sections assist the applicants’ argument.
- The schedules to the JRA list parts of Acts which are not affected by the JRA (Schedule 1) and decisions in relation to which no application for reasons may be made pursuant to Part 3 of the JRA (Schedule 2). In Schedule 1 is listed, “Industrial Relations Act 2016, sections 554(3), 557(3) and 765”. In Schedule 2, Item 7 lists decisions in relation to personnel management in relation to a service established by an enactment, and at Item 10 decisions “relating to industrial matters” in relation to a service established by an enactment.
- The applicants argued that there was a necessary implication that, in relation to Schedule 1, the JRA did affect the operation of the rest of the IRA, and in relation to Schedule 2, that except for their exclusion by reason of being listed in Schedule 2, decisions as to personnel management in a service established by enactment, and decisions relating to industrial matters in relation to a service established by an enactment, were within Part 3 of the JRA and thus the JRA excluded the jurisdiction of the Industrial Relations Commission within the meaning of s 449 of the IRA. I understand why those submissions were made. However, in my view the features of the JRA relied upon by the applicants should be regarded as poor legislative drafting, rather than an indication of Parliamentary intention that Part 3 matters remain within the jurisdiction of this Court when they concern industrial matters.
- First, there are examples in legislation where Parliament has excluded the jurisdiction of the Industrial Commission. Section 219E of the Crime and Corruption Act 2001 (Qld) provides:
“The industrial court and the industrial relations commission do not have jurisdiction in relation to a matter that QCAT may decide for this Act even though it may be, or be about, or arise out of, an industrial matter.”
Section 9.1A of the Police Service Administration Act 1990 (Qld) provides:
“The Industrial Court and the Industrial Relations Commission do not have jurisdiction in relation to a matter that has been, is being, or may be reviewed under this part even though it may be, or be about, or arise out of, an industrial matter within the meaning of the Industrial Relations Act 2016.”
- Second, the respondents pointed to another incoherence created by the drafting of Schedule 2 to the JRA. Item 1 in Schedule 2 provides that decisions in relation to the investigation or prosecution of persons for offences against the law were decisions for which no reasons need be given. There could be no implication that the remainder of Part 3 of the JRA applied to such decisions because of the well-established common law rule that decisions of a public prosecutor are not reviewable: Maxwell v The Queen. In my view, this is an indicator that insufficient thought was given to the drafting of the schedules to the JRA, rather than that there was some legislative intent to exclude the jurisdiction of the Industrial Commission.
- In a separate argument, the applicants relied on a series of three cases which they said supported the proposition that if there were “threshold questions”, which if they were resolved in its favour, would mean that there was no relevant Direction, and therefore no industrial dispute or industrial matter, those threshold questions should be considered and determined in this Court, including under Part 3 of the JRA.
- The first decision is of the High Court in Mutual Life & Citizens’ Assurance Company Ltd v Attorney-General (Qld). Mutual Life originally employed the plaintiff, Neill. However, it was alleged by the plaintiff that the relationship changed and he began to carry on business on his own account as an insurance agent paid commission by the plaintiff. When the relationship between Mutual Life and Mr Neill ended altogether, he claimed long service leave benefits as an employee. Mutual Life brought an action in the Supreme Court of Queensland against Mr Neill and the Attorney-General for declarations that: (1) Mr Neill was not an employee for the purposes of the Industrial Conciliation and Arbitration Acts 1932-1955; (2) that Mutual Life was not liable to pay long service leave, and (3) that no industrial inspector appointed under the Industrial Conciliation and Arbitration Acts was entitled to require Mutual Life to supply information and otherwise co-operate with an investigation as to payments of long service leave to Mr Neill.
- The High Court held that the Supreme Court did have jurisdiction to make the first declaration sought, notwithstanding the industrial legislation provided that the jurisdiction of the Industrial Court in all industrial causes was exclusive. As in this case, the definition of industrial cause was very wide, but it did depend upon a relationship of employee/employer being established.
- It is clear from the judgment of Dixon CJ that his decision was based on what is the supervisory jurisdiction of superior courts to prevent the executive acting beyond power. His reasoning was as follows:
“Section 17 of [the Industrial Legislation] provides that the jurisdiction of the Industrial Court constituted under the Act in all industrial causes, whether original or by appeal, conferred on it by the Act shall be exclusive. …
… The sense of the questions formulated as to the real questions appears to be to enquire whether the Supreme Court had jurisdiction in an action as framed to decide whether the relationship was that of employer and employee and thereby forestall a decision of the Industrial Court or industrial magistrate on that question and whether the court had accordingly jurisdiction to make a declaration of right on that subject. …
… In these circumstances does s 17 operate to exclude the jurisdiction of the Supreme Court to entertain the suit? This is entirely a question of jurisdiction, not of the manner in which the jurisdiction should be exercised or of the rules governing the exercise of a discretion to make declarations of right. …
… An inspection of the definition [of industrial causes] will show that where there is no relation of employer and employee, at present or in the past, intended or proposed, there can be no industrial matter. …
… the question is whether the jurisdiction which the Supreme Court would otherwise possess to declare in a suit that … Neill was not an ‘employee’ of the plaintiff … forms part of the jurisdiction in an industrial cause of the Industrial Court. … It is not a question whether for the purpose of exercising its jurisdiction in relation to employers and employees the Industrial Court has authority to ascertain for itself whether a given party is an employer or a given party is an employee. There can be no doubt that it has such an authority. But that tells you nothing as to the conclusive effect of the finding or opinion it reaches. For where its jurisdiction depends on the fact of a party being or not being an employer or an employee it cannot give itself jurisdiction by erroneously determining the question in the affirmative or deprive itself of jurisdiction which it possesses by erroneously determining the question in the negative. …
It follows that the jurisdiction of the Supreme Court exists in respect of the present suit so far as concerns the first question propounded …” – pp 53-57. (my underlining)
- The case is authority for the fact that where a declaration was sought as to a jurisdictional fact, viz, the relationship of employer/employee, this Court has supervisory jurisdiction to determine whether that jurisdictional fact exists. It is consistent with the underlined passage in the case of Kirk, above. It does not lend any support to the applicants’ contention that the provisions of the IRA do not deprive this Court of jurisdiction under Part 3 of the JRA.
- The second case is Thomson v Minister for Education. A school principal sought an appointment as principal of another school. It was granted. However, the Department purported to rescind the appointment, saying that it had been granted due to an administrative error. The principal brought an application in this Court for a declaration that he was validly appointed. He argued that, having been appointed, he could only be removed under the relevant legislation if he resigned or retired, or was retrenched, dismissed or suspended. Williams J noted that, “As the argument unfurled it became clear that it was not in dispute that the necessary formal steps had been taken for the appointment of the applicant to the position. Therefore the real question was whether or not the Minister had the power to rescind the appointment.” – pp 87-88. The Department argued that the matter belonged in the exclusive jurisdiction of the Industrial Commission. Williams J concluded:
“In my view the extent of a Minister’s power, and in particular the question whether or not he has a power to rescind an appointment, pursuant to the provisions of the PSME Act is not an ‘industrial matter’ and is a question of statutory construction for this Court. Threshold questions, such as the extent of ministerial power and whether or not the relationship of employer and employee exists, remain within the jurisdiction of this Court; a question of the latter type arose in Mutual Life & Citizens’ Assurance Company Ltd v Attorney-General (Q)… I am therefore satisfied that this Court has jurisdiction to determine the extent of the power of a Minister to rescind an appointment under the PSME Act.” (my underlining)
- Mr del Villar for the respondents submitted that I should be cautious about the passage just cited. In Mutual Life the Court found that it had jurisdiction, notwithstanding an exclusive jurisdiction provision, because it was asked to determine whether or not a fact necessary to the Industrial Court’s jurisdiction existed. It was not the existence of “threshold questions”, but questions as to the existence of jurisdiction which could be determined in this Court’s supervisory jurisdiction. In my view, the question of the Minister’s power in Thomson was a jurisdictional question. The question was whether rescinding the appointment was ultra vires the power given to the Minister. It follows that I think the reasoning in the above passage was correct, but the language of “threshold issues” was too wide.
- The third case relied upon by the applicants was Irwin v Stewart (Commissioner of Police) & Anor. In that case a police officer was transferred twice in two months. Each time the documents transferring him expressed concern that he had engaged in misconduct at his original posting. He brought an application for declarations that the transfers were invalid because they had been used for the purpose of disciplining him for misconduct, when any discipline ought to have been in accordance with the statutory regime for discipline of police officers under the Police Service Administration Act 1990 (Qld). The Commissioner argued that the applicant’s claim was an industrial matter relying on definitions and exclusive jurisdiction provisions in the Industrial Relations Act 1999 (Qld), which are almost identical with the current provisions.
- McMurdo J found that he had jurisdiction. He said:
“The applicant argues that what is in issue in this case is not ‘what are the rights of an employee, but what governs them’. That submission seeks to distinguish a controversy as to the existence and content of a power to impose a transfer from rights in relation to the exercise of a recognised power. That argument is supported by the judgment of Williams J in Thomson v Minister for Education. …
He said that:
‘Threshold questions, such as the extent of ministerial power and whether or not the relationship of employer and employee exists, remain within the jurisdiction of this Court; a question of the latter type arose in Mutual Life & Citizens’ Assurance Company Ltd v Attorney-General (Q) …’
The case cited by Williams J is not as close to the present one. But clearly the reasoning of Williams J could be applied here to reject the respondents’ jurisdictional argument.” – .
- For reasons already explained, I do not think there is any relevant concept of “threshold questions”. A “controversy as to the existence” of a power is a controversy as to jurisdiction or ultra vires, and thus within the supervisory jurisdiction. In that sense I read Irwin as being consistent with Kirk, above.
- I reject the argument that these three cases show that the Supreme Court retains jurisdiction “with respect to matters that are anterior to or independent of the employment relationship”. Like the concept of threshold questions, I think this must be rejected as a test for jurisdiction. The test must be whether or not the question sought to be adjudicated in this Court is one which goes to excess of jurisdiction and thus cannot be excluded from this Court’s supervisory jurisdiction. If the question sought to be adjudicated is one going to jurisdiction, relief under Part 5 of the JRA will be available. The cases say nothing to support the idea that relief under Part 3 of the JRA would be available.
- The applicants mount a third argument on the strength of the decision in Netstar Pty Ltd v Caloundra City Council. Provisions of the Integrated Planning Act 1997 (Qld) gave the Planning and Environment Court exclusive jurisdiction in respect of some defined matters. A dispute about such a matter was brought to the Supreme Court; the applicant sought a declaration. The respondent in that proceeding then commenced proceedings in the Planning and Environment Court essentially seeking a declaration to contrary effect. The Court of Appeal held that the Planning and Environment Court had exclusive jurisdiction – . In the course of her judgment McMurdo P expressed the opinion that the Supreme Court would have had jurisdiction had no proceedings been commenced in the Planning and Environment Court. No authority was cited for that idea and I find it difficult to see support for it in the text of the legislation. In my view, the dicta should not be applied more broadly, including to the situation here. I therefore reject the applicants’ argument that the words “arising out of an industrial matter” in the IRA ought to be narrowly construed and that, because the IRA did not prohibit proceedings being commenced in the Supreme Court, I should interpret the provision as meaning that if a party did commence in the Supreme Court when there were no proceedings in the Queensland Industrial Relations Commission, this Court had jurisdiction. I can see no warrant to interpret the relevant provisions of the IRA in this way.
Discretion to Exercise Jurisdiction
- At the hearing before me on 20 October 2021 both the applicants and respondents urged me to hear these proceedings rather than dismiss them pursuant to the provisions of ss 12 and 13 of the JRA.
- Section 12 of the JRA provides that the Court may dismiss an application, including an application made pursuant to Part 5 of the Act, because:
“(a) the applicant has sought a review of the matter by the court or another court, otherwise than under this Act; or
(b) adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the court or another court.”
- Section 13 of the JRA provides that if an application is made under the JRA, including an application for Part 5 relief, and, “provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by another court or a tribunal, authority or person”, this Court must dismiss the application if it is satisfied having regard to the interests of justice that it should do so.
- It follows from my finding that the underlying disputes between the applicants and respondents in these proceedings are industrial matters, that the Industrial Relations Commission of Queensland would have jurisdiction to hear disputes between the applicants and respondents arising from these three Directions.
- The case which could be heard in the Industrial Relations Commission would be governed by s 531 of the IRA which provides in part:
“(3) Also, the commission or Industrial Magistrates Court is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of –
- (a)the persons immediately concerned; and
- (b)the community as a whole.
- (5)In making a decision, other than a decision made under chapter 4, part 3, division 2, the commission must consider the public interest, and in doing so must consider –
- (a)the main purpose of this Act; and
- (b)the likely effects of the commission’s decision on the community, economy, industry, the particular industry concerned and industry generally.”
- That there is a merits hearing in the Industrial Relations Commission is a significant factor weighing in favour of this Court not exercising jurisdiction. Further, the Commission’s powers to consider the interests of not only the parties to any application, but the community as a whole, seem particularly suited to a decision about the merits of the matters which are in dispute between these parties. Administrative law relief in this Court will not determine the merits of the matters which are at the centre of the dispute between the applicants and the respondents. In similar circumstances Thomas J said, “Applications like the present one are unlikely to produce a satisfactory result for the disgruntled civil litigant but are still likely to take up considerable time of the courts.”
- The respondents submitted that there were important questions in the public interest to be determined involving points of law as to the validity of exercises of executive power and that that was a reason why this Court should hear the applications. It was said that there may be numerous similar applications and that an authoritative determination by this Court of the points raised would therefore be desirable. In fact, there are two more judicial review applications about COVID-19 vaccination directions in this Court.
- Counsel for the respondents also outlined that only some of the issues sought to be raised by the applicants in this proceeding overlap with the issues which were determined in Brasell-Dellow & Ors v State of Queensland (Queensland Police Service). That was a decision of a Full Bench of the Queensland Industrial Relations Commission which dealt with the Police Direction. Challenges to it were dismissed. The challenges were based upon the fact that the Police Commissioner failed to consult with the employees before making the Police Direction and that there was no power in the Police Commissioner to make the Police Direction without seeking a variation of the relevant award. While overlap between these proceedings and that in Brasell-Dellow is no doubt relevant to my considerations, I think the considerations engaged by ss 12 and 13 of the JRA are much wider than these questions of overlap.
- On the 12 October 2021 review, counsel for the applicants informed me that the applicants wished to call medical evidence and have a hearing quite different to that which was (at that stage proposed) in the Industrial Relations Commission. At the conclusion of the hearing on 20 October 2021 counsel for the applicants said his clients would rely less on medical evidence than previously indicated. Further, because of my ruling about Part 3 of the JRA, and the need for the applicants to demonstrate jurisdictional error before this Court will entertain their claims, it may be that the ultimate hearing of these proceedings in this Court is rather different to that which was first contemplated by the applicants.
- Although on 12 October 2021 it seemed the convenient course to determine whether or not I ought to exercise powers pursuant to ss 12 and 13 of the JRA as part of my consideration of jurisdiction, I have grown less certain of the type of case which the applicants wish to advance, and, because a common approach was taken to this question by the applicants and the respondents, I do not feel that I have had full argument on ss 12 and 13 of the JRA. Although it must be relevant to the exercise of the Court’s discretion under ss 12 and 13 of the JRA that all parties agree that the Court ought to hear the applications rather than dismiss them, the Court itself has a discretion as to whether or not to grant the type of relief sought in these applications. In this case, I do not feel I can properly exercise that jurisdiction until I learn more about the applicants’ cases and hear fuller argument on the issue. For that reason I will defer consideration of whether to exercise the discretion under ss 12 and 13 of the JRA and decide those questions after hearing what remains of both the applications.
The Intervener’s Arguments about the Human Rights Act
- The Attorney-General intervened pursuant to s 50 of the Human Rights Act 2019 (Qld) (HRA). Further, the Human Rights Commission intervened pursuant to s 51 of the HRA.
- In their applications the applicants allege that the Directions breached ss 15(1), 17(c), 20 and 21 of the HRA and that being incompatible with those rights meant that the Directions contravened ss 48 and 58 of the HRA. Section 48(1) provides that all statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights. Section 58(1) makes it unlawful for a public entity to act or make a decision “in any way” that is not compatible with human rights, or in making a decision fail to give proper consideration to a human right relevant to the decision.
- It is perhaps doing a discourtesy to the work in the submissions from both the interveners to summarise their positions relevant to these jurisdictional questions as being:
- (a)whether the matters which are the subject of these proceedings are heard in this Court or the Industrial Relations Commission, arguments as to ss 48 and 58 of the HRA may be agitated, and
- (b)if the provisions of the IRA mean that this Court does not have jurisdiction under Part 3 of the JRA, nonetheless this Court would have jurisdiction to consider both ss 48 and 58 of the HRA in dealing with the Part 5 JRA matters, just as the Industrial Relations Commission would have jurisdiction to deal with those matters in any proceedings it hears and determines.
- There was no challenge to either of these propositions and I think they may be accepted.
- Having regard to my view that this Court does not have jurisdiction to exercise under Part 3 of the JRA, I will strike out paragraphs 5 and 6 of the amended applications in each proceeding. I will hear the parties as to directions necessary to progress the remaining parts of the applications to a final hearing.
(1995-1996) 189 CLR 51, 127.
(1989) 166 CLR 518, 580.
(2010) 239 CLR 531, 580-581.
It was noted that by s 450 of the IRA, the IRA or another Act might give the Commission jurisdiction but prescribe that that jurisdiction was not exclusive.
See also s 217 of the Public Service Act 2008 (Qld) and s 75 of the Hospital and Health Boards Act 2011 (Qld).
(1995-1996) 184 CLR 501, 534 and Barton & Anor v The Queen & Anor (1980) 147 CLR 75.
(1961) 106 CLR 48.
 1 Qd R 83.
 QSC 350.
In Irwin there was another basis to decide that this Court had jurisdiction: by reason of s 9.1A of the Police Service Administration Act, the dispute was specifically excluded from the jurisdiction of the Queensland Industrial Relations Commission and the Industrial Court – .
 1 Qd R 287, .
Stubberfield v Webster  2 Qd R 211, 217.
 QIRC 356.
- Published Case Name:
Johnston & Ors v Commissioner of Police & Anor; Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health & Ors
- Shortened Case Name:
Johnston v Commissioner of Police & Anor; Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health
 QSC 275
26 Oct 2021
- Selected for Reporting: