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Kay v Chief Executive, Queensland Corrective Services[2024] QSC 167

Kay v Chief Executive, Queensland Corrective Services[2024] QSC 167

SUPREME COURT OF QUEENSLAND

CITATION:

Kay v Chief Executive of Queensland Corrective Services [2024] QSC 167

PARTIES:

TIMOTHY KAY

(first applicant)

KAREL DE JAGER

(second applicant)

RENE HENSEN

(third applicant)

MICHAEL SUTCLIFFE

(fourth applicant)

LEESA BICKERS

(fifth applicant)

DAVID TU’IPULOTU

(sixth applicant)

ANTHONY FARQUHARSON

(seventh applicant)

JARED TALLOTT

(eighth applicant)

ANTONY COOPER

(ninth applicant)

v

CHIEF EXECUTIVE OF QUEENSLAND CORRECTIVE SERVICES

(respondent)

FILE NO:

8786 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

5 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2023

JUDGE:

Davis J

ORDERS:

  1. The applicants’ application to amend the Originating Application is dismissed.
  2. The respondent’s application to strike out parts of the Amended Originating Application is dismissed.
  3. The parties are to exchange written submissions on costs by 4.00 pm on 19 August 2024.
  4. All parties have liberty to file and serve, by 4.00 pm on 26 August 2024, an application for leave to make oral submission as to costs.
  5. In the absence of any application being filed by 4.00 pm on 26 August 2024, the question of costs will be determined on the basis of any written submissions filed and without further oral argument.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEW OF ALL DECISIONS AND CONDUCT – where under the Public Service Act 2008 a responsible person could find grounds for discipline – where by the subsequent provision the officer could impose a discipline – where an employee challenged the finding of a ground for discipline – whether the finding for a ground for discipline was a “decision” which was reviewable – whether the finding of a ground for discipline was merely a decision “along the way” to the decision to impose a discipline – whether the challenge to the finding of a ground for discipline fragmented the process – whether the challenge to the finding ought be struck out

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEW OF ALL DECISIONS AND CONDUCT – where a finding was made against an employee that grounds for discipline existed – where the grounds for discipline were failure to comply with a direction to be vaccinated against COVID-19 – where the employee challenged the finding of  grounds for discipline – where on that challenge, the employee seeks to challenge the giving of the vaccination direction – where no application had been made to set aside the        COVID-19 Directions – where the challenge to the COVID-19 Directions was collateral to the challenge to the finding of grounds for discipline – whether such a collateral challenge should be allowed

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – GENERALLY – where a finding was made that there were grounds to discipline an employee – where there was a provision which provided an avenue of appeal from that decision – where the employee did not exercise that appeal right – where the employee sought judicial review of the decision – where a discretion arises not to entertain the judicial review – whether such discretion ought to be exercised

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – GENERALLY – where an employee was subject to a finding that grounds for discipline existed – where the employee sought judicial review of that decision – where the decision was based on a failure of the employee to comply with the direction to be vaccinated against COVID-19 – where the employee challenged the lawfulness of the COVID-19 Directions – where the employee challenged the decision that a ground for discipline existed – where the employer sought to strike out the challenge to the finding that a disciplinary ground existed – whether the challenge to the COVID-19 Direction could be mounted – whether the challenge to the Disciplinary Finding Decisions could be mounted – whether those challenges ought be struck out

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – ORIGINATING PROCESS, PLEADINGS ETC – where an employee was subject to a decision that grounds for discipline exist – where the grounds for discipline was failure of the employee to comply with a direction requiring vaccination against COVID-19 – where the employee sought judicial review of the decision that grounds for discipline existed – where in that application the employee challenged the lawfulness of the COVID-19 Directions – where the employer sought to strike out parts of the application including the challenge to the COVID-19 Directions – where the employee sought to amend the application to seek relief in relation to the COVID-19 Directions – whether such amendment was necessary – whether such amendment ought to be allowed

Civil Proceedings Act 2011 (Qld), s 10

Corrective Services Act 2006 (Qld), s 263, s 264, s 268

Human Rights Act 2019 (Qld), s 58, s 59

Industrial Relations Act 2016 (Qld), s 429, s 562B, s 562C

Judicial Review Act 1991 (Qld), s 4, s 12, s 13, s 20, s 43

Public Health Act 2005 (Qld), s 319, s 362B

Public Sector Act 2022 (Qld), s 90, s 91, s 92, s 129, s 132,    s 134, s 312, s 313, s 314

Public Service Act 2008 (Qld), s 3, s 26, s 89, s 90, s 98, s 99, s 187, s 188, s 189, s 190, s 193, s 194, s 197, s 390, sch 4

Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100, cited

Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28, cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, followed

Bradley v The Commonwealth (1973) 128 CLR 557; [1973] HCA 34, cited

Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, cited

Davy v Spelthorne Borough Council [1984] AC 262, cited

Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266, cited

Director of Public Prosecutions v Head [1959] AC 83, cited

Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43, considered

George v Rockett (1990) 170 CLR 104; [1990] HCA 26, cited

Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, followed

Harrison v President of the Industrial Court of Queensland [2017] 1 Qd R 515; [2016] QCA 89, cited

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

Hunt v Gerrard (2022) 13 QR 1; [2022] QCA 263, cited

Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568; [2006] SASC 32, cited

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, cited

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17, cited

Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49, followed

Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32, cited

R v A2 (2019) 269 CLR 507; [2019] HCA 35, cited

R v Williams; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402; [1982] HCA 68, cited

Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66, cited

Stubberfield v Webster [1996] 2 Qd R 211, cited

Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28, cited

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8, cited

The Commonwealth v Grunseit (1943) 67 CLR 58; [1943] HCA 47, cited

White v Barron (1980) 144 CLR 431; [1980] HCA 14, cited

Whiteley v Stone [2021] QSC 31, cited

Witthahn v Chief Executive, Hospital and Health Services (2021) 9 QR 642; [2021] QCA 282, cited

COUNSEL:

M Black and B J Coyne for the applicants to the principal application

A D Scott KC with A R Hughes for the respondent to the principal application

SOLICITORS:

Sibley Lawyers for the applicants to the principal application

G R Cooper, Crown Solicitor for the respondent in the principal application

  1. [1]
    The Chief Executive of Queensland Corrective Services (the CEQCS) is the respondent to an application (the principal application) brought by the applicants (the QCS officers) who are staff members of Queensland Corrective Services (QCS).  By the principal application, they seek to set aside decisions that have been made concerning them as a consequence of their failure to be vaccinated against COVID-19, contrary to directions made by the CEQCS.
  2. [2]
    The CEQCS applies (the CEQCS’ application) to strike out parts of the principal application.  The QCS officers seek to amend the principal application (the QCS officers’ application).

Background

  1. [3]
    QCS is a department of the Queensland government.  Therefore, the QCS officers are employees of the State.  At relevant times, the employment of the QCS officers was governed by the Public Service Act 2008.  Under the Public Service Act, the CEQCS made disciplinary findings against each of the QCS officers. 
  2. [4]
    The Public Service Act has since been repealed and effectively replaced by the Public Sector Act 2022.  Transitional provisions preserve decisions made under the Public Service Act.[1] By force of the transitional provisions of the Public Sector Act, disciplinary findings made under the Public Service Act enliven powers to impose discipline under provisions of the Public Sector Act.[2]
  3. [5]
    The present controversy concerns the exercise of statutory powers by the CEQCS concerning the COVID-19 pandemic and the disciplinary proceedings which followed against the QCS officers.
  4. [6]
    Chapter 6 of the Corrective Services Act 2006 (CS Act) concerns “administration”.  Part 2 of Chapter 6 concerns the “chief executive”. Section 263(1) of the CS Act, which is contained within Part 2 of Chapter 6, casts upon the CEQCS the responsibility for, relevantly, the security and management of corrective services facilities[3] and the safe custody and welfare of all prisoners.[4]  Section 263(2) grants powers to the CEQCS to do all things necessary to discharge the obligations cast by s 263(1).  The section provides:

“263  Functions and powers

  1.  Subject to any direction of the Minister and any administrative arrangements made by the Governor in Council, the chief executive is responsible for—
  1.  the security and management of all corrective services facilities; and
  1.  the safe custody and welfare of all prisoners; and
  1.  the supervision of offenders in the community.
  1.  The chief executive has— 
  1.  the power to do all things necessary or convenient to be done for, or in connection with, the performance of the chief executive’s functions under an Act; and
  1.  the powers of an inspector, including the chief inspector, and a corrective services officer.
  1.  To remove any doubt, it is declared that the chief executive may exercise a power mentioned in subsection (2)(b) in a place other than a corrective services facility.”[5]
  1. [7]
    Section 264 of the CS Act empowers the CEQCS to give administrative directions.  It provides:

“264  Administrative directions

  1.  The chief executive may, in writing, give an administrative direction to facilitate the effective and efficient management of corrective services.
  1.  Each person to whom the direction applies must comply with it.”[6]
  1. [8]
    Section 268[7] of the CS Act provides that the CEQCS may make a declaration that an emergency exists (an emergency declaration).  By s 268(1)[8], the emergency declaration may be made if the CEQCS:

“(1)… reasonably believes a situation exists that threatens or is likely to threaten—

  1. the security or good order of the prison; or
  1. the safety of a prisoner or another person in the prison.”
  1. [9]
    Upon the making of an emergency declaration, the CEQCS may exercise the powers vested by s 268(4)[9] relevantly:

“(4) While the declaration is in force, the chief executive may—

  1.  restrict any activity in, or access to, the prison; or
  1.  transfer the prisoners to another corrective services facility, including a temporary corrective services facility; or
  1.  if the prisoners have been transferred under paragraph (b) to another corrective services facility, return the prisoners to the prison; or
  1.  order that prisoners’ privileges or a stated prisoner’s privileges be withheld; or
  1.  authorise police officers to perform a function or exercise a power of a corrective services officer, under the direction of the senior police officer present.”
  1. [10]
    The powers conferred by s 268(4) seem no wider than those conferred by s 263(2).  The powers under s 263(2) relate back to the functions of the CEQCS which include maintaining the security and management of corrective services facilities (including prisons) and the safe custody and welfare of all prisoners.  The steps contemplated by s 268(4)(a), (b), (c) and (d), but perhaps not (e), are surely authorised by the general powers vested by s 263(2).
  2. [11]
    In any event, on 27 September 2021, the CEQCS made an emergency declaration pursuant to s 268(1) of the CS Act.  The emergency declaration period was then extended by the making of further declarations on 24 December 2021, 25 March 2022, 29 April 2022 and 24 June 2022, the collective effect of which was that an emergency declaration was in effect from 27 September 2021 to 22 September 2022.
  3. [12]
    In the meantime, the Chief Health Officer (CHO) was exercising powers under the Public Health Act 2005 (PH Act).
  4. [13]
    Section 319 of the PH Act empowered the Minister to make an order declaring a public health emergency.  This was done on 29 January 2020.  Part 7A of Chapter 8 of the PH Act was enacted.  Part 7A was headed “Particular Powers for COVID-19 Emergency”.  The CHO was the beneficiary of powers vested by s 362B of the PH Act which provided:

“362B  Power to give directions

  1.  This section applies if the chief health officer reasonably believes it is necessary to give a direction under this section (a public health direction) to assist in containing, or to respond to, the spread of COVID-19 within the community
  1.  The chief health officer may, by notice published on the department’s website or in the gazette, give any of the following public health directions—
  1.  a direction restricting the movement of persons;
  1.  a direction requiring persons to stay at or in a stated place;
  1.  a direction requiring persons not to enter or stay at or in a stated place;
  1.  a direction restricting contact between persons;
  1.  any other direction the chief health officer considers necessary to protect public health.
  1.  A public health direction must state—
  1.  the period for which the direction applies; and
  1.  that a person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction.”
  1. [14]
    On 11 December 2021, the CHO issued the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction, the effect of which, relevantly here, was to require those entering a corrective services facility to be vaccinated. 
  2. [15]
    Acting under the CS Act, the CEQCS gave directions (the COVID-19 Directions) pursuant to ss 263(2), 264 and 268(4) requiring QCS employees to be vaccinated.  That occurred on 16 December 2021 with the promulgation of the COVID-19 Vaccination Requirements for Corrective Services Facilities Direction.  As the emergency declaration period was extended, the directions were re-issued.[10]
  3. [16]
    The original direction given by the CEQCS is typical of all the COVID-19 Directions.  Its primary provisions are paragraphs 1 and 2 in these terms:

“1. All Staff Members working in, seeking to enter, or providing services in a corrective services facility while undertaking work for QCS must comply with the COVID-19 vaccination requirements unless they have a medical contraindication or are a COVID-19 vaccine trial participant.

  1. The COVID-19 vaccination requirements are that:

a.  from 17 December 2021, all Staff Members who seek to enter, work in, or provide services in a corrective services facility must have received at least one dose of a COVID-19 vaccine; or

b.  from 23 January 2022, all Staff Members who seek to enter, work in, or provide services in a corrective services facility must have received the prescribed number of doses of a COVID-19 vaccine.”

  1. [17]
    The final and current direction was issued on 29 June 2022, to be effective from 30 June 2022 (the Employment Direction).
  2. [18]
    The CHO issued the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No 2) on 4 February 2022 (the CHO Direction). This was revoked by decision made on 29 June 2022, effective from 30 June 2022.
  3. [19]
    The QCS officers did not obtain vaccination.  Proceedings were then taken against them under the Public Service Act.  The QCS officers were required to show cause why they should not be disciplined.  In due course, there were findings against each of them that a disciplinary ground was established on the basis that each of them had contravened the COVID-19 Directions (the Disciplinary Finding Decisions).
  4. [20]
    By an amended application brought pursuant to s 20(1) of the JR Act, or alternatively s 43 of the JR Act, s 10 of the Civil Proceedings Act 2011, ss 58 and 59 of the Human Rights Act 2019, or the Court’s inherent jurisdiction, the QCS officers:
  1. challenge the decision of the CEQCS to issue the Employment Direction; and
  2. challenge each of the Disciplinary Finding Decisions.
  1. [21]
    The challenge to the Employment Direction is not relevant to the current application.  The QCS officers challenge to the Disciplinary Finding Decisions are:
  1. that the COVID-19 Directions are invalid; and
  2. the Disciplinary Finding Decisions are infected with administrative error being a failure to take into account relevant considerations and that they are unreasonable.
  1. [22]
    The CEQCS’ application is to strike out that part of the QCS officers’ application challenging the Disciplinary Finding Decisions.  It is made on the basis of four submissions:
  1. the CEQCS’ power to make the Disciplinary Finding Decisions was not dependent upon the COVID-19 Directions being valid (Issue 1);
  2. if there was to be a challenge to the Disciplinary Finding Decisions then that ought to have been by way of appeal under the Industrial Relations Act 2016 (IR Act) (Issue 2);
  3. the continuation of the present challenge as to the Disciplinary Finding Decisions on judicial review would inappropriately fragment an administrative decision-making process which is not yet complete (Issue 3); and
  4. the challenge to the COVID-19 Directions as part of the challenge to the Disciplinary Finding Decision is an abuse of process (Issue 4).
  1. [23]
    By the QCS Officers’ Application, they seek to amend the application so as to:
    1. directly challenge the COVID-19 Directions by seeking a declaration that they were invalidly made;
    2. join the CHO; and   
    3. directly challenge the CHO Direction by seeking a declaration that it was invalidly made.
  2. [24]
    The CEQCS opposes the QCS officers’ application and the QCS officers oppose the CEQCS’ application.

The Public Service Act 2008

  1. [25]
    As earlier observed, the proceedings taken against the QCS officers which resulted in the Disciplinary Finding Decisions were taken under the Public Service Act which has been repealed by the Public Sector Act.
  2. [26]
    There are transitional provisions in the Public Sector Act which preserve the force of actions taken upon powers in the Public Service Act before its repeal.[11]   I consider these transitional provisions later. It is appropriate to turn to the relevant provisions of the Public Service Act.

Provisions of the Public Service Act 2008

  1. [27]
    The purpose of the Public Service Act was to establish a “high performing apolitical public service” and to “promote the effectiveness and efficiency of government entities”.[12]  Part 2 of Chapter 1 of the Public Service Act structured the public service into departments,[13] government entities[14] and government offices[15]. 
  2. [28]
    Part 3 established “general public service principles”. Within Part 3 is s 26 which was relevantly:

“26  Work performance and personal conduct principles

  1.  In recognition that public service employment involves a public trust, a public service employee’s work performance and personal conduct must be directed towards—
  1.  achieving excellence in service delivery; and
  1.  ensuring the effective, efficient and appropriate use of public resources; and
  1.  giving effect to Government policies and priorities; and

…

  1.  observing all laws relevant to the employment …”
  1. [29]
    Chapter 3 established an administrative structure and Chapter 4 regulated “chief executives, senior executives and senior officers”.  Sections 89, 90, 98 and 99 provided relevantly:

“89  Establishment

  1.  A chief executive service is established in the public service.
  1.  The service consists of chief executives appointed under division 2.

90  Purpose and its achievement

  1.  The purpose of the chief executive service is to promote—
  1.  the public service’s effectiveness and efficiency; and
  1.  collaboration between departments with a focus on public service-wide priorities as well department-specific priorities; and
  1.  performance management in the public service; and
  1.  the delivery of services by the public service in accordance with Government priorities.
  1.  The purpose is to be achieved by attracting, developing and retaining in the public service a core of mobile, highly skilled chief executives.

…

98  Responsibilities

  1.  A chief executive is responsible for all of the following matters in relation to the chief executive’s department—
  1.  establishing and implementing goals and objectives in accordance with Government policies and priorities;
  1.  managing the department in a way that promotes the effective, efficient and appropriate management of public resources;
  1.  the following for departmental employees—
  1.  their numbers;
  1.  classification levels;
  1.  designation of roles;
  1.  planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under this Act;
  1.  adopting management practices that are responsive to Government policies and priorities;
  1.  promoting continual evaluation and improvement of the appropriateness, effectiveness and efficiency of departmental management;
  1.  implementing policies and practices about access and equity to ensure maximum access by members of the community to Government programs and to appropriate avenues for review;
  1.  ensuring compliance with the equality of employment opportunity obligations under chapter 2;
  1.  ensuring maintenance of proper standards in the creation, keeping and management of public records.[16]

…

99  How responsibilities must be discharged

  1.  In discharging responsibilities under an Act, a chief executive must—
  1.  observe the management and employment principles; and
  1.  comply with all relevant laws, industrial instruments and directives; and
  1.  have regard to all relevant guidelines.
  1.  The discharge of the responsibilities is subject to section 109(3).”
  1. [30]
    Chapter 6 provided for “disciplinary action against public service employees and former public service employees”.  Disciplinary action was authorised and regulated by Part 2 of Chapter 6. 
  2. [31]
    Section 187 provided relevantly:

“187  Grounds for discipline[17]

  1.  A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1.  engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  1.  been guilty of misconduct; or

…

  1.  contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or

…

  1.  A disciplinary ground arises when the act or omission constituting the ground is done or made.” (emphasis added)
  1. [32]
    A “responsible person” for the purposes of s 187 was a person with authority to give the direction.[18]
  2. [33]
    Section 188 provided relevantly:

“188  Disciplinary action that may be taken against a public service employee[19]

  1.  In disciplining a public service employee, the employee’s chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.
  1.  If the disciplinary action is taken following an agreement under section 187A(4) between the previous chief executive and the current chief executive mentioned in the section, the chief executives must agree on the disciplinary action.
  1.  However, a monetary penalty can not be more than the total of 2 of the employee’s periodic remuneration payments.
  1.  Also, an amount directed to be deducted from any particular periodic remuneration payment of the employee—
  1.  must not be more than half of the amount payable to or for the employee in relation to the payment; and
  1.  must not reduce the amount of salary payable to the employee in relation to the period to less than—
  1.  if the employee has a dependant—the guaranteed minimum wage for each week of the period; or
  1.  otherwise—two-thirds of the guaranteed minimum wage for each week of the period.
  1.  In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
  1.  An order under subsection (1) is binding on anyone affected by it”[20] (emphasis added)
  1. [34]
    Section 190 provided relevantly:

“190  Procedure for disciplinary action

In disciplining a public service employee or former public service employee, a chief executive must comply with this Act, any relevant directive of the commission chief executive, and the principles of natural justice.”

  1. [35]
    The term “disciplinary finding” was defined as:

“disciplinary finding means a finding that a disciplinary ground exists.”[21]

  1. [36]
    Chapter 7 concerned appeals and reviews.  Sections 193 and 194 provided:

“193  Appeals

  1.  A person may appeal against a decision if—
  1.  an appeal may be made against the decision, under section 194; and
  1.  the person is entitled to appeal against the decision under section 196.

194  Decisions against which appeals may be made

  1.  An appeal may be made against the following decisions—
  1.  a decision to take, or not take, action under a directive;
  1.  a decision under a disciplinary law to discipline—
  1.  a person (other than by termination of employment), including the action taken in disciplining the person; or
  1.  a former public service employee by way of a disciplinary declaration made under section 188A, including if the disciplinary action that would have been taken was termination of employment;

…

(bb) a decision to suspend a public service employee without entitlement to normal remuneration under section 137 (a suspension without pay decision);

…

(eb)  a decision a public service employee believes is unfair and unreasonable (a fair treatment decision);

  1.  a decision about anything else against which another Act allows a person to appeal.
  1.  However—
  1.  if an appeal may be made under this section against a decision, other than under subsection (1)(eb), the appeal can not be made under subsection (1)(eb); and
  1.  an appeal can not be made against a decision if section 195 applies to the decision.
  1.  In this section—

temporary employee—

  1.  includes a general employee employed on a temporary basis; but
  1.  does not include a person employed under section 147 or 148 on a casual basis.” (emphasis added)
  1. [37]
    Section 195 prescribed a list of decisions against which there was no appeal available under Chapter 7.  Nothing contained in s 195 is relevant here.  It is common ground between the parties that s 194(1)(eb) provided an avenue of appeal from a disciplinary finding made under s 187.[22]
  2. [38]
    Any appeal lay to the Queensland Industrial Relations Commission (QIRC).  Section 197 of the Public Service Act provided:

“197  Appeal to IRC[23]

An appeal under this part is to be heard and decided under the Industrial Relations Act 2016, chapter 11 by the IRC.”

  1. [39]
    Chapter 11 of the IR Act establishes the Industrial Court of Queensland[24] and the Queensland Industrial Relations Commission.[25]  The Industrial Relations Commission is a court of record.[26]
  2. [40]
    Part 6 of Chapter 11 concerns appeals.
  3. [41]
    As already observed[27], the Public Sector Act has effectively replaced the now repealed Public Service Act. Section 90 of the Public Sector Act provides that a “disciplinary finding” means “a finding that a disciplinary ground exists”. Section 91 of the Public Sector Act provides grounds for discipline in terms which for present purposes are indistinguishable from s 187 of the Public Service Act:

“91  Grounds for discipline

  1.  A public sector employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has…”
  1. [42]
    Section 92 then provides:

“92   Meaning of disciplinary action

  1.  Disciplinary action is any action relating to employment, including, for example, any of the following actions—
  1.  termination of employment;
  1.  reduction of classification level and a consequential change of duties;
  1.  transfer or redeployment;
  1.  forfeiture or deferment of a remuneration increment or increase;
  1.  reduction of remuneration level;
  1.  imposition of a monetary penalty;
  1.  if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee’s periodic remuneration payments;
  1.  a reprimand.
  1.  However, disciplinary action consisting of a monetary penalty can not be more than the total of 2 of the employee’s periodic remuneration payments.
  1.  Also, disciplinary action consisting of an amount directed to be deducted from a particular periodic remuneration payment of an employee—
  1.  must not be more than half of the amount payable to or for the employee in relation to the payment; and
  1.  must not reduce the amount of salary payable to the employee in relation to the period to less than—
  1.  if the employee has a dependant—the Queensland minimum wage for each week of the period; or
  1.  otherwise—two-thirds of the Queensland minimum wage for each week of the period.
  1.  In this section—

Queensland minimum wage see the Industrial Relations Act 2016, schedule 5.”

  1. [43]
    It can be seen that the Public Sector Act provides a discipline mechanism equivalent to that provided by the Public Service Act in that a finding that a ground of discipline is established then enlivens a power to impose a discipline.
  2. [44]
    Section 313 of the Public Sector Act is one of the transitional provisions.  It provides:

“313  Existing disciplinary finding

  1.  This section applies if—
  1.  before the commencement, a chief executive made a disciplinary finding against a public service employee under the repealed Act; and
  1.  immediately before the commencement, any disciplinary action in relation to the disciplinary finding had not been completed.
  1.  From the commencement, the disciplinary finding is taken to be a disciplinary finding under this Act.”
  1. [45]
    Therefore, by force of s 313 of the Public Sector Act, the Disciplinary Finding Decisions made pursuant to s 187 of the Public Service Act enliven the discretion in the CEQCS to impose discipline upon the QCS officers pursuant to s 92 of the Public Sector Act.
  2. [46]
    An appeal from a disciplinary decision is “public service appeal”.[28]  By ss 562B and 562C of the IR Act:

“562B  Public service appeal to commission is by way of review

  1.  This section applies to a public service appeal[29] made to the commission.
  1.  The commission must decide the appeal by reviewing the decision appealed against.
  1.  The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  1.  For an appeal against a promotion decision or a disciplinary decision under the Public Sector Act 2022, the commission—
  1.  must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1.  may allow other evidence to be taken into account if the commission considers it appropriate.

562C  Public service appeals—decision on appeal

  1.  In deciding a public service appeal, the commission may—
  1.  confirm the decision appealed against; or
  1.  for an appeal against a promotion decision—set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive made by the Public Sector Commissioner that the commission considers appropriate; or
  1.  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.
  1.  In deciding an appeal against a promotion decision, the commission may set the decision aside only if the commission finds that the recruitment or selection process was deficient, having regard to whether the process complied with the Public Sector Act 2022, a regulation or a directive made by the Public Sector Commissioner under that Act.”

Issue 1: Was the lawfulness of the COVID-19 Directions relevant to the making of a disciplinary finding?

  1. [47]
    Issue 1 arises because the QCS officers, as earlier observed, challenge the Disciplinary Finding Decisions on two bases.  The first is that the COVID-19 Directions are invalid.  The second is that even assuming that the COVID-19 Directions are valid, the Disciplinary Finding Decisions are otherwise infected with administration error.[30] It is the first bases of challenge which is relevant to Issue 1.
  2. [48]
    The CEQCS submits that the making of the Disciplinary Finding Decisions depends upon the formation of a state of mind of the CEQCS, not the existence of objective facts.  Consequently, the existence of a lawful direction (the COVID-19 Directions) is not a justiciable issue in any challenge to the Disciplinary Finding Decisions.
  3. [49]
    It is submitted by the QCS officers that the existence of a lawful direction is an objective fact which either exists or it does not.  Against that objective fact, the CEQCS must be “reasonably satisfied” that there has been a contravention without reasonable excuse.
  4. [50]
    Section 187 of the Public Service Act effected a grant of power in the CEQCS, as did s 188.  These two provisions together vested power in the CEQCS to discipline a public servant.  The two sections established a two-step process. Section 187 empowered the CEQCS to make a “disciplinary finding”.  If a disciplinary finding was made, then the power vested by s 188 arose, empowering the CEQCS to discipline the employee. I will refer to the making of a disciplinary finding as a “jurisdictional fact” upon which the power to discipline arises. 
  5. [51]
    A jurisdictional fact may take one of three forms. It may be an objective fact[31] or an opinion that something exists[32], or a value judgment about something[33]. Probably, the second and third forms are each different types of opinion.[34]
  6. [52]
    The nature of a review of a decision based on a jurisdictional fact depends upon the nature of the jurisdictional fact. Where the jurisdictional fact is an objective fact, the question on review is whether the fact existed.[35] Where the jurisdictional fact is an opinion, be it an opinion as to whether something exists[36] or a value judgment[37], the review is based on House v The King[38] principles.
  7. [53]
    Ultimately, the nature of the jurisdictional fact is a question of statutory construction. Literally read, s 187 provided a jurisdictional fact dependent upon “satisfaction” of five matters. The five matters are prescribed in s 187(1)(d). Section 187(1)(d) is one of various sub-subsections which follow the opening words of s 187(1) “if the chief executive is reasonably satisfied the employee has…”.  “Satisfaction” (as opposed to suspicion) is a subjective belief of the existence of the fact.[39]  The CEQCS must be “reasonably satisfied”. The subjective “satisfaction” must then be held as grounds that would include the satisfaction in the mind of a reasonable person.[40] The five matters of which the CEQCS must (on a literal interpretation) be “reasonably satisfied” were:
    1. there is a direction (element 1 of a disciplinary finding);
    2. the direction was given to the relevant employee (element 2 of a disciplinary finding);
    3. the person who gave the direction to the employee was a “responsible person”[41]  (element 3 of a disciplinary finding);
    4. the employee contravened the direction (element 4 of a disciplinary finding); and
    5. that there was no reasonable excuse for the employee to contravene the direction (element 5 of a disciplinary finding).
  8. [54]
    However, the strictly literal approach to statutory construction “has long been eschewed” by the High Court.[42] The objective is to ascertain the meaning of the text adopted by the legislature but read in the context of the statute as a whole, against often relevant context and by reference to purpose.[43]
  9. [55]
    When construing statutes which confer a power by reference to a jurisdictional fact, courts have often referred to whether the matter under consideration is one about which reasonable minds might differ. Where the jurisdictional fact involves a judgment or assessment about which people might have different views, the jurisdictional fact is unlikely to be construed as an objective state of things. [44]
  10. [56]
    Elements 4 and 5 can easily be seen as matters of opinion. The section refers to “reasonably satisfied”. The CEQCS has overall responsibility for the running of Corrective Services and is given wide ranging powers. It is obvious why, as a matter of policy, when it comes to discipline, the legislature entrusted assessment of elements 4 and 5 of a disciplinary finding to the CEQCS’s reasonable satisfaction.[45]
  11. [57]
    Different considerations arise with elements 1, 2 and 3 of a disciplinary finding. True these elements appear with elements 4 and 5, after the words “the chief executive is reasonably satisfied” in s 187(1). However, unlike elements 4 and 5 of a disciplinary finding, the existence of a valid direction having been given to the employee is very much an objective fact. There is no matter of judgment required. To the extent that the validity of the direction depends upon legal consideration, there is only one legally correct answer.
  12. [58]
    The disciplinary regime is a mechanism whereby the exercise of the powers of the CEQCS is employed. No purpose of the CS Act is advanced by disciplinary proceedings being founded upon an alleged contravention of an invalid direction, albeit one that the CEQCS might think is valid.
  13. [59]
    In my view, the proper construction of s 187 is that the power to discipline arises where the CEQCS is reasonably satisfied that the employee has breached, without reasonable cause, a valid direction which has in fact been given to the employee by a responsible person.
  14. [60]
    This construction is supported by s 188. Once a disciplinary finding is made under      s 187, the CEQCS may take disciplinary action “that the [CEQCS] considers reasonable in the circumstances”.
  15. [61]
    Any disciplinary action taken on an apparent breach of an invalid direction could not, when viewed objectively, be “reasonable”. However, the power vested by s 188(1) is to take disciplinary action “that the chief executive considers reasonable in the circumstances”.
  16. [62]
    Section 188 assumes that a disciplinary finding has been made.[46] There is nothing to suggest that s 188 requires a reconsideration of the disciplinary finding under s 187.
  17. [63]
    Therefore, upon the construction of s 187 proposed by the CEQCS, if the CEQCS is “reasonably satisfied” of a contravention “without reasonable excuse” of a direction which they are “reasonably satisfied” is valid, than a power arises under s 188 to impose a discipline (including termination) if the CEQCS considers the discipline “reasonable in the circumstances”. Presumably the consideration of reasonableness includes their view of the validity of the direction.  If the direction is, as a matter of law invalid, then upon the compounding effect of decisions made under two separate provisions, an employee suffers disciplinary action for failing to comply with a purported direction which, because of its invalidity, they were not obliged to obey. That cannot be the legislative intention.

Issue 2:  Alternative avenue of review

  1. [64]
    As earlier observed[47], it is common ground that a Disciplinary Finding Decision is a “fair treatment decision”[48] and could therefore be appealed to the QIRC pursuant to s 193(1) of the Public Service Act.
  2. [65]
    Sections 12 and 13 of the JR Act provide:

“12When application for statutory order of review may be dismissed

Despite section 10, but without limiting section 48, the court may dismiss an application under section 20 to 22 or 43 that was made to the court in relation to a reviewable matter because—

  1. the applicant has sought a review of the matter by the court or another court, otherwise than under this Act; or
  2. 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.

13 When application for statutory order of review must be dismissed

Despite section 10, but without limiting section 48, if— 

  1.  an application under section 20 to 22 or 43 is made to the court in relation to a reviewable matter; and
  1.  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;

the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so.”

  1. [66]
    It is these sections upon which the CEQCS relies to seek summary dismissal of that part of the application concerning the Disciplinary Findings.  The CEQCS submits that it is in the interests of justice to dismiss that part of the application given the existence of appeal rights to the QIRC.
  2. [67]
    Judicial review is not meant to be an alternative to an appeal.[49] However, when considering whether “adequate” provision is made for review other than via the JR Act[50] or the interests of justice dictate that the application ought to be dismissed, it is necessary to compare the rights available to an applicant upon judicial review and the rights available through the appeal avenue.
  3. [68]
    The CEQCS submitted on Issue 1 that the lawfulness or otherwise of the Covid-19 Directions were not a relevant consideration upon review of the Disciplinary Finding Decisions.  All that was relevant, it was submitted, was the CEQCS’s reasonable satisfaction of breach of direction.  If they were right about that (which in my view they were not), then Issue 2 could not be decided in their favour. This is because the appeal to the QIRC could only determine the reasonableness of that “satisfaction” not the legality or otherwise of the COVID-19 Directions. It would follow that there was no adequate alternative avenue of review under the IR Act.
  4. [69]
    I have found that the existence of a valid direction is an objective criteria for the power to discipline to arise. As will become apparent, I have also found that the application to amend the QCS officers’ application ought to be dismissed but a collateral challenge to the validity of the COVID-19 Directions is permissible.
  5. [70]
    The QCS officers’ application[51] challenges the Disciplinary Finding Directions on a number of bases, including that the COVID-19 Directions are invalid. In particular in ground 2.1:

“27. The Disciplinary Finding Decisions relied on an alleged contravention of “COVID-19 Vaccination requirements for Corrective Services Facilities Directions” and concluded that the said direction was “lawful and reasonable”.”

  1. [71]
    The challenges to the COVID-19 Directions are many and varied, but are summarised in the QCS’ Officers’ application as:

“26.  As summarised below, the applicant’s claim that the Disciplinary Finding Decisions are invalid or liable to be quashed, because:

  1. Ground 2.1: There was no lawful direction to receive a COVID-19 vaccine.
  1. Ground 2.2: There was a failure to consider relevant considerations.
  2. Ground 2.3: The decisions are legally unreasonable.”
  1. [72]
    An appeal to the QIRC is determined upon an assessment of whether the decisions (here the Disciplinary Finding Decisions) are “fair and reasonable”.[52] That is a value judgment where the relevant circumstances would include the nature and purpose of the direction allegedly contravened and the nature and circumstances of the contravention etc. Perhaps on that exercise, the QIRC could consider the fairness and reasonableness of the COVID-19 Directions, but it would have no jurisdiction to conduct a judicial review of the directions.[53] 
  2. [73]
    I would not strike out the challenged parts of the QCS officers’ application on the bases raised by Issue 2.

Issue 3: Does the challenge to the Disciplinary Finding Decisions fragment an administrative process which is only complete once disciplinary orders are made?

  1. [74]
    The CEQCS submits that the challenge to the Disciplinary Finding Decisions ought not be allowed to be mounted until disciplinary action is taken under s 188, as the making of a finding under s 187 (the Disciplinary Finding Decision), is just a “step along the way” to the making of the ultimate decision.
  2. [75]
    By s 4 of the JR Act, a decision to which the JR Act applies is “a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)”.  In Griffith University v Tang[54], the High Court held that to fall within the definition of a “decision”, the alleged decision “must be expressly or impliedly required or authorised by the enactment and the decision must itself confer, alter or otherwise effect existing or new legal rights or obligations” derived from the general law or statute.[55]  Consistently with that statement but, of course, much earlier, Mason CJ in Australian Broadcasting Tribunal v Bond[56]observed:

“A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.”[57]

  1. [76]
    Upon a proper construction of any particular statute, a decision which is not the final decision in a series of decisions may itself be a “decision” and attract review.  There have been many cases which have turned on that distinction but there is no need to consider them as they all turn upon the construction of particular statutes.[58]
  2. [77]
    In my view, the finding of the existence of a disciplinary ground pursuant to s 187 is a “decision under an enactment” in its own right.  Chapter 7 of the Public Service Act gave a right of appeal to the QIRC against a finding under s 187. The CEQCS rightly concedes that such an appeal exists. That being the case, it would be extraordinary if, for the purposes of the Judicial Review Act, the finding was not a decision under an enactment and just a step “along the way” to the final decision.
  3. [78]
    There is otherwise no substance in the submission that it is an abuse of process to mount a challenge to the Disciplinary Finding Decisions before disciplinary action is taken.  The legislation provided for an appeal to the QIRC from a disciplinary finding made under s 187.  There is no suggestion the right to make such an appeal was conditional upon disciplinary action being already taken under s 188.
  4. [79]
    It follows in my view that where the Public Service Act specifically authorises the “fragmentation” of the administrative process which ultimately leads to disciplinary action, the taking of action under the JR Act before the process is complete cannot, without more, constitute an abuse of process.

Issue 4: Abuse of Power by collateral challenge to the COVID-19 Directions – the Application to Amend.

  1. [80]
    Issue 4 and the QCS officers’ application raise related issues.
  2. [81]
    As already observed, the QCS officers challenged the Disciplinary Finding Decisions on various grounds including that the COVID-19 Directions are invalid.  Also as already observed, the CHO Direction also concerns persons working in correctional institutions.  The State submits that it is an abuse of process for the QCS officers to mount an attack upon the Disciplinary Finding Directions by collaterally attacking the COVID-19 Directions and the CHO Direction.  The State submits that the various directions could only be attacked by direct challenge under the JR Act.  Any application under the JR Act, the State submits, is now out of time.
  3. [82]
    One response by the QCS officers to Issue 4 is to seek to amend the QCS officers’ application so as to directly attack the COVID-19 Directions and the CHO Direction. By the proposed amendments, the QCS officers seek judicial review of the directions.
  4. [83]
    As I have explained when dealing with Issue 1, on a proper construction of s 187 of the Public Service Act, the question is whether or not there was a valid direction which the CEQCS reasonably believed had been given to the QCS officers and subsequently contravened.
  5. [84]
    The COVID-19 Directions were made in exercise of administrative power.  No party argued to the contrary.  The power vested by the CS Act is a power to give directions for a statutorily defined and limited purpose.  The power does not authorise the making of laws but the application of them.[59]  Some decisions of the CHO made under the PH Act are legislative in nature.[60]  It was not suggested that CHO Direction was such a decision.  I will proceed on the basis that the COVID-19 Directions and the CHO Direction were all made in the exercise of administrative power.Where there is judicial[61] challenge to a decision based on an earlier exercise of administrative power, that earlier decision or action is “… open to collateral review by a court in the course of dealing with an issue purportedly arising as an element in a justiciable controversy in which the court [is] seized”.[62]  Three decisions of the High Court make that point.  In Ousley v The Queen[63], judges of the Supreme Court of Victoria had issued warrants pursuant to the Listening Devices Act 1969 (Vic) authorising members of the police service to use a listening device.  Evidence was obtained pursuant to the warrant and when it was sought to be led against him in his trial in the County Court of Victoria, Mr Ousley sought to have it excluded in exercise of the Bunning v Cross[64] discretion on the basis that the warrants were invalid.  This involved a judge of an inferior court effectively reviewing an exercise of power by a judge of the Supreme Court of Victoria, a superior court of record.  That could, of course, not occur if the judge was exercising judicial power.[65]  However, it was held that the power to issue the warrants were administrative in nature and the trial judge ought to have considered the validity of the warrants upon an application to exclude the evidence.[66]
  6. [85]
    In Gedeon v Commissioner of the New South Wales Crime Commission[67], the Commissioner of the New South Wales Crime Commission gave authorities pursuant to the Law Enforcement (Controlled Operations) Act 1997 (NSW).  Those authorities were issued pursuant to exercise of administrative power and effectively authorised an informant to deal in drugs in a way which would otherwise constitute an offence.  In challenging the evidence which was gathered, and which, but for the provisions of the Law Enforcement (Controlled Operations) Act 1997 was likely to have been excluded by reference to the principles in Ridgeway v The Queen[68], the accused was held to be entitled to conduct a collateral attack upon the validity of the authorities.[69]  Here the QCS officers’ goal is to challenge the Disciplinary Finding Decisions.  The COVID-19 Directions have expired and questions as to their validity are only relevant to the QCS officers to the extent that they underpin the Disciplinary Finding Decisions.  In that sense, it is a classic collateral attack upon an earlier administrative decision, being the decision to issue the COVID-19 Directions.[70]
  7. [86]
    What follows is:
    1. the collateral attack upon the COVID-19 Directions and the CHO Direction is admissible in the principal application[71]; and
    2. it is not necessary to seek review of those decisions in order for the QCS officers to mount a challenge to the Disciplinary Finding Decisions.  It is also not necessary for the CHO to be joined[72], although the CHO may wish to be heard.  Those questions need not be decided now.
  8. [87]
    Discretionary factors militate against allowing the amendments. In particular:
    1. the COVID-19 Directions have expired;
    2. the CHO Direction has expired; 
    3. there is no suggestion of the COVID-19 Directions or the CHO Direction effecting the legal rights of the QCS officers beyond the making of the Disciplinary Finding Decisions; and
    4. the objective of the QCS officers is to challenge the COVID-19 Directions and the CHO Direction and, as explained, that challenge can be mounted without amendment to the principal application and without joining the CHO to the proceeding.
  9. [88]
    In all of the circumstances, the QCS officers’ application ought be dismissed.

Conclusions

  1. [89]
    For the reasons explained, no basis has been established to strike out any part of the principal application.
  2. [90]
    For the reasons explained, the amendments sought to the principal application are unnecessary and undesirable and the QCS officers’ application ought to be dismissed.
  3. [91]
    The parties ought to be given the opportunity to make submissions on costs and I will make directions accordingly.

Orders

  1. [92]
    It is ordered:
  1. The applicants’ application to amend the Originating Application is dismissed.
  1. The respondent’s application to strike out parts of the Amended Originating Application is dismissed.
  1. The parties are to exchange written submissions on costs by 4.00 pm on 19 August 2024.
  1. All parties have liberty to file and serve, by 4.00 pm on 26 August 2024, an application for leave to make oral submission as to costs.
  1. In the absence of any application being filed by 4.00 pm on 26 August 2024, the question of costs will be determined on the basis of any written submissions filed and without further oral argument.

Footnotes

[1] Public Sector Act 2022, ss 312, 313, 314.

[2]  See paragraphs [44] and [45] of these reasons.

[3] Corrective Services Act 2006, s 263(1)(a).

[4] Corrective Services Act 2006, s 263(1)(b). Section 263(1)(c) casts upon the chief executive responsibility for the supervision of offenders in the community.

[5]  Legislative examples omitted.

[6]  Legislative examples omitted.

[7]  Section now repealed. See ss 271A-271D.

[8]  See s 271B(1).

[9]  See s 271C(2).

[10]  Re-issued on 24 December 2021 (amended 17 February 2022), 25 March 2022, 29 April 2022 and 24 June 2022; the history of actions taken under the Public Health Act 2005 are described in Hunt v Gerrard (2022) 13 QR 1.

[11]  See paragraphs [44] and [45] of these reasons; and Public Sector Act 2008, chapter 9.

[12]  Section 3.

[13]  Division 2.

[14]  Division 4.

[15]  Division 3.

[16]  Legislative notes omitted.

[17]  Section 91 of the Public Sector Act 2022 is equivalent to s 187 of the Public Service Act 2008.

[18] Public Service Act 2008, s 187(4).

[19] Public Sector Act 2022, s 92.

[20]  Legislative examples omitted.

[21] Public Service Act 2008, sch 4.

[22] Public Sector Act 2022, ss 129, 132(4).

[23]  See also Public Sector Act 2022, s 134.

[24]  Part 1.

[25]  Part 2.

[26] Industrial Relations Act 2016, s 429.

[27]  See paragraph [4] of these reasons.

[28]  At the time that was defined as “public service appeal means an appeal against a decision under the Public Service Act 2008”. It is now defined as an “an appeal against a decision under the Public Sector Act 2022’.

[29]  An appeal against a disciplinary finding is a “public service appeal”. See Industrial Relations Act 2016, sch 5, definition of “public service appeal”.

[30]  Legally unreasonable, and there was a failure to consider relevant considerations.

[31] White v Barron (1980) 144 CLR 431.

[32] George v Rockett (1990) 170 CLR 104.

[33] Norbis v Norbis (1986) 161 CLR 513.

[34] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [20].

[35] R v Williams; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402 at 411.

[36] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

[37] Norbis v Norbis (1986) 161 CLR 513.

[38]  (1936) 55 CLR 499.

[39] George v Rockett (1990) 170 CLR 104 at 116-117.

[40] George v Rockett (1990) 170 CLR 104, following Bradley v The Commonwealth (1973) 128 CLR 557 at 574-575.

[41]  A “responsible person” is one authorised to give the direction; Public Service Act 2008, s 187(4).

[42] R v A2 (2019) 269 CLR 507 at [32].

[43] R v A2 (2019) 269 CLR 507 at [32]-[37] and the cases cited there.

[44] Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57]; and Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [89].

[45]  For “reasonable excuse” see Taikato v The Queen (1996) 186 CLR 454; the assessment of “reasonableness” being very much a matter of judgment.

[46] Public Service Act 2008, s 187(1).

[47]  Paragraph [38] of these reasons.

[48] Public Service Act 2008, s 194(1)(eb).

[49] Stubblefield v Webster [1996] 2 Qd R 211 at 217; Whiteley v Stone [2021] QSC 31; and Harrison v President of the Industrial Court of Queensland [2017] 1 Qd R 515 at [76].

[50] Judicial Review Act 1991, ss 12(b), 13(b).

[51]  As it presently stands.

[52] Industrial Relations Act 2016, s 562B(3).

[53] Witthahn v Chief Executive, Hospital and Health Services (2021) 9 QR 642 at [30], [60].

[54]  (2005) 221 CLR 99.

[55]  At [89]; see also [149].

[56]  (1990) 170 CLR 321.

[57]  At 337.

[58]  See generally Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed (2017), p 76 [2.350]-[2.420].

[59]  See generally The Commonwealth v Grunseit (1943) 67 CLR 58 at 82-83; and Braemar Power Project Pty Ltd v The Chief Executive, Department of Mines and Energy [2008] QSC 241 at [20] and following.

[60] Hunt v Gerrard (2022) 13 QR 1.

[61]  As opposed to a challenge in exercise of administrative power; see Director of Housing v Sudi (2011) 33 VR 559.

[62] Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at [36].

[63]  (1997) 192 CLR 69.

[64]  (1978) 141 CLR 54.

[65] Ousley v The Queen (1997) 192 CLR 69 at 99.

[66]  At 87 per Gaudron J, at 100 per McHugh J, at 124 per Gummow J, at 145-147 per Kirby J; see also Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at [36].

[67]  (2008) 236 CLR 120.

[68]  (1995) 184 CLR 19.

[69] Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 at [22].

[70] Ousley v The Queen (1997) 192 CLR 69 at 99, McHugh J citing Davy v Spelthorne Borough Council [1984] AC 262 at 277 and Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100 at 112-122.

[71]  Although discretionary considerations might arise; see Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568 at [93]-[94].

[72] Ousley v The Queen (1997) 192 CLR 69 at 100, following Director of Public Prosecutions v Head [1959] AC 83.

Close

Editorial Notes

  • Published Case Name:

    Kay v Chief Executive of Queensland Corrective Services

  • Shortened Case Name:

    Kay v Chief Executive, Queensland Corrective Services

  • MNC:

    [2024] QSC 167

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    05 Aug 2024

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QSC 16705 Aug 2024Application to strike out judicial review application refused: Davis J.
Primary Judgment[2024] QSC 19526 Aug 2024Costs judgment: Davis J.
Notice of Appeal FiledFile Number: CA 11611/2402 Sep 2024Notice of application filed.
Appeal Determined (QCA)[2025] QCA 14915 Aug 2025Leave to appeal refused: Mullins P (Boddice JA and Crowley J agreeing).

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100
2 citations
Jump To
Cite 1 - (1995) 63 FCR 100
Cite 2 - (1995) 63 FCR 100
Attorney-General v Breckler (1999) 197 CLR 83
3 citations
Jump To
Cite 1 - (1999) 197 CLR 83
Cite 2 - (1999) 197 CLR 83
Cite 3 - (1999) 197 CLR 83
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
2 citations
Jump To
Cite 1 - (1990) 170 CLR 321
Cite 2 - (1990) 170 CLR 321
Australian Broadcasting Tribunal v Bond (1990) HCA 33
1 citation
Jump To
Cite 1 - (1990) HCA 33
Bradley v Commonwealth (1973) 128 CLR 557
2 citations
Jump To
Cite 1 - (1973) 128 CLR 557
Cite 2 - (1973) 128 CLR 557
Braemar Power Project Pty Ltd v The Chief Executive, Department of Mines and Energy [2008] QSC 241
1 citation
Jump To
Cite 1 - [2008] QSC 241
Bunning v Cross (1978) 141 CLR 54
2 citations
Jump To
Cite 1 - (1978) 141 CLR 54
Cite 2 - (1978) 141 CLR 54
Bunning v Cross [1978] HCA 22
1 citation
Jump To
Cite 1 - [1978] HCA 22
Commonwealth v Grunseit (1943) 67 CLR 58
2 citations
Jump To
Cite 1 - (1943) 67 CLR 58
Cite 2 - (1943) 67 CLR 58
Davy v Spelthorne Borough Council [1984] AC 262
2 citations
Jump To
Cite 1 - [1984] AC 262
Cite 2 - [1984] AC 262
Director of Housing v Sudi (2011) 33 VR 559
2 citations
Jump To
Cite 1 - (2011) 33 VR 559
Cite 2 - (2011) 33 VR 559
Director of Housing v Sudi [2011] VSCA 266
1 citation
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Cite 1 - [2011] VSCA 266
Director of Public Prosecutions v Head [1959] AC 83
2 citations
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Cite 1 - [1959] AC 83
Cite 2 - [1959] AC 83
Ex parte Australian Building Construction Employees and Builders Labourers Federation (1982) 153 CLR 402
2 citations
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Cite 1 - (1982) 153 CLR 402
Cite 2 - (1982) 153 CLR 402
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43
1 citation
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Cite 1 - [2008] HCA 43
Gedeon v Commissioner of the NSW Crime Commission (2008) 236 CLR 120
3 citations
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Cite 1 - (2008) 236 CLR 120
Cite 2 - (2008) 236 CLR 120
Cite 3 - (2008) 236 CLR 120
George v Rockett (1990) 170 CLR 104
4 citations
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Cite 1 - (1990) 170 CLR 104
Cite 2 - (1990) 170 CLR 104
Cite 3 - (1990) 170 CLR 104
Cite 4 - (1990) 170 CLR 104
George v Rockett [1990] HCA 26
1 citation
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Cite 1 - [1990] HCA 26
Griffith University v Tang (2005) HCA 7
1 citation
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Griffith University v Tang (2005) 221 CLR 99
2 citations
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Cite 2 - (2005) 221 CLR 99
Harrison v President of the Industrial Court of Queensland[2017] 1 Qd R 515; [2016] QCA 89
3 citations
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Cite 2 - [2017] 1 Qd R 515
Cite 3 - [2017] 1 Qd R 515
House v R (1936) HCA 40
1 citation
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House v The King (1936) 55 CLR 499
2 citations
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Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Hunt v Chief Health Officer(2022) 13 QR 1; [2022] QCA 263
4 citations
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Cite 2 - (2022) 13 QR 1
Cite 3 - (2022) 13 QR 1
Cite 4 - (2022) 13 QR 1
Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568
2 citations
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Cite 1 - (2006) 93 SASR 568
Cite 2 - (2006) 93 SASR 568
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
3 citations
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Cite 1 - (2010) 240 CLR 611
Cite 2 - (2010) 240 CLR 611
Cite 3 - (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZMDS (2010) HCA 16
1 citation
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Norbis v Norbis [1986] HCA 17
1 citation
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Cite 1 - [1986] HCA 17
Norbis v Norbis (1986) 161 C.L.R., 513
3 citations
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Cite 1 - (1986) 161 C.L.R., 513
Cite 2 - (1986) 161 C.L.R., 513
Cite 3 - (1986) 161 C.L.R., 513
Ousley v The Queen (1997) 192 CLR 69
5 citations
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Cite 2 - (1997) 192 CLR 69
Cite 3 - (1997) 192 CLR 69
Cite 4 - (1997) 192 CLR 69
Cite 5 - (1997) 192 CLR 69
Ousley v The Queen [1997] HCA 49
1 citation
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Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
2 citations
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Cite 1 - (2011) 244 CLR 144
Cite 2 - (2011) 244 CLR 144
Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32
1 citation
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Cite 1 - [2011] HCA 32
R v A2 [2019] HCA 35
1 citation
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Cite 1 - [2019] HCA 35
R v A2 (2019) 269 CLR 507
3 citations
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Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
Cite 3 - (2019) 269 CLR 507
Ridgeway v R (1995) 184 CLR 19
2 citations
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Cite 1 - (1995) 184 CLR 19
Cite 2 - (1995) 184 CLR 19
Ridgeway v The Queen [1995] HCA 66
1 citation
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Cite 1 - [1995] HCA 66
Stubberfield v Webster[1996] 2 Qd R 211; [1995] QSC 182
2 citations
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Cite 1 - [1996] 2 Qd R 211
Cite 2 - [1996] 2 Qd R 211
Taikato v The Queen (1996) 186 CLR 454
2 citations
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Cite 1 - (1996) 186 CLR 454
Cite 2 - (1996) 186 CLR 454
Taikato v the Queen [1996] HCA 28
1 citation
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Cite 1 - [1996] HCA 28
The Attorney-General for the Commonwealth v Breckler [1999] HCA 28
1 citation
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Cite 1 - [1999] HCA 28
The Commonwealth v Grunseit [1943] HCA 47
1 citation
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Cite 1 - [1943] HCA 47
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
2 citations
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Cite 1 - (1999) 46 NSWLR 55
Cite 2 - (1999) 46 NSWLR 55
Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) NSWCA 8
1 citation
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Cite 1 - (1999) NSWCA 8
White v Barron (1980) 144 CLR 431
2 citations
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Cite 1 - (1980) 144 CLR 431
Cite 2 - (1980) 144 CLR 431
White v Barron [1980] HCA 14
1 citation
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Cite 1 - [1980] HCA 14
Whiteley v Stone [2021] QSC 31
2 citations
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Cite 1 - [2021] QSC 31
Cite 2 - [2021] QSC 31
Witthahn v Chief Executive of Hospital and Health Services and Director General of Queensland Health(2021) 9 QR 642; [2021] QCA 282
3 citations
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Cite 1 - [2021] QCA 282
Cite 2 - (2021) 9 QR 642
Cite 3 - (2021) 9 QR 642

Cases Citing

Case NameFull CitationFrequency
Chief Executive, Queensland Corrective Services v Kay [2025] QCA 149 2 citations
Kay v Chief Executive, Queensland Corrective Services [No 2] [2024] QSC 1953 citations
1

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