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Drage v Gold Coast Hospital and Health Service[2025] QSC 22

Drage v Gold Coast Hospital and Health Service[2025] QSC 22

SUPREME COURT OF QUEENSLAND

CITATION:

Drage v Gold Coast Hospital and Health Service [2025] QSC 22

PARTIES:

STEVEN GEOFFREY DRAGE

(applicant)

v

GOLD COAST HOSPITAL AND HEALTH SERVICE

(first respondent)

AND

STATE OF QUEENSLAND (QUEENSLAND HEALTH)

(second respondent)

FILE NO:

BS 4176/24

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 February 2025

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2024; 13 December 2024; 28 January 2025

JUDGE:

Freeburn J

ORDERS:

  1. The application is dismissed.
  2. I will hear the parties on costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – DECLARATIONS – where a health directive was made requiring a class of health care workers to be vaccinated – where the applicant fell within the class of workers required to be vaccinated – where the applicant did not comply with the directive – where the applicant was dismissed from his employment – whether the termination of employment and recording of misconduct should be quashed and set aside – whether the health directive should be declared unlawful

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – DECLARATIONS – where directions were made requiring a class of health care workers to be vaccinated – where the directive included an exemption for a genuinely held religious belief – where the applicant fell within the class of workers required to be vaccinated – where the applicant applied for an exemption three times – where each of those applications was rejected – where the applicant did not provide sufficient evidence in respect of a genuinely held religious belief –  where the applicant claims the procedure adopted was unlawful – whether the denial of religious exemption should be declared unlawful

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where directions were made requiring a class of healthcare workers to be vaccinated against COVID-19 – where the applicant claims the respondents failed to give proper consideration to human rights relevant to the decision – whether the directive was unlawful and in breach of the Human Rights Act 2019 (Qld)

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where directions were made requiring a class of healthcare workers to be vaccinated against COVID-19 – where the applicant fell within that class – where the directive included an exemption for a genuinely held religious belief – where the applicant applied for an exemption under religious grounds three times – where the application was denied – whether the application of the health directive was incompatible with the Human Rights Act 2019 (Qld)

COUNSEL:

The applicant, assisted by H Stancliffe, appeared on his own behalf

C J Murdoch KC, with M J Brooks, for the respondent

SOLICITORS:

The applicant, assisted by H Stancliffe, appeared on his own behalf

MinterEllison for the respondent

  1. [1]
    Until February 2022, the applicant, Mr Drage, was employed by the State of Queensland (the second respondent, Queensland Health) as a Security Officer, Integrated Security Services. He was employed at the Gold Coast Hospital and Health Service (the first respondent).
  2. [2]
    In September 2021, Mr Drage applied to the Gold Coast Hospital for an exemption from a requirement that he be vaccinated against COVID-19. The application for the exemption was denied and, ultimately, Mr Drage was dismissed from his employment because of his failure to comply with his employer’s requirement that he be vaccinated.
  3. [3]
    Mr Drage seeks a judicial review of the decision to refuse him an exemption. There is no dispute that Mr Drage is a person who is aggrieved by a decision to which the Judicial Review Act 1991 applies. And there is no dispute that he can succeed if he establishes one or more of the grounds set out in section 20(2) of that Act.[1]
  4. [4]
    Mr Drage’s challenges to the decision fall into two broad categories. He says the policy that required employees to be vaccinated was unlawful. And he says that the implementation of the policy was unlawful, principally because the requirement that he be vaccinated violated his human right to practice his religion.

Background

  1. [5]
    On 29 January 2020, a public health emergency was declared for the whole of Queensland under the Public Health Act 2005 (Qld). This was due to the outbreak of COVID-19 and the health implications of that outbreak for Queensland. There were then, from March 2020, a series of lockdowns and other measures designed to curb the spread of COVID-19.
  2. [6]
    During the following year, 2021, COVID-19 vaccines became available in Australia. Queensland Health decided to mandate COVID-19 vaccination for Queensland Health staff employed to work at any facility where health care was provided to patients, and to staff where their roles required them to attend the facility as part of their job.[2]
  3. [7]
    The vehicle for requiring staff to be vaccinated was section 51A of the Hospital and Health Boards Act 2011 (Qld) which allows the Director-General of the Department of Health to issue health employment directives. Section 51E of that Act specifies that a health employment directive is binding on the specified employees and various Hospital and Health Services.[3]
  4. [8]
    On 11 September 2021, applying section 51A, the then Director-General of Queensland Health, Dr John Wakefield, issued Health Employment Directive No 12/21 (HED12/21). HED12/21 applied to existing and prospective health service employees working for Queensland Health or in a Health Service. That included Mr Drage. Also in September 2021, the Acting Chief Human Resources Officer replicated the operative clauses of HED 12/21 in Human Resources Policy B70 - Employee COVID-19 Vaccination Requirements (HR Policy B70). This HR Policy applied to existing and prospective public service employees working for Queensland Health. That policy did not apply to Mr Drage.

The Rationale for Mandatory Vaccination

  1. [9]
    The rationale for mandatory vaccination is explained by a draft briefing note:[4]

Health and aged care workers have been identified as being of particularly high risk due to the nature of their work which involves the provision of care to unwell persons as well as an inability to practice public health prevention measures due to this work (e.g. inability to physically distance). In fact, research indicates that patient-facing health and aged care workers are at three times the risk of contracting COVID-19 when compared with the general population.

Healthcare and aged care facilities have also been identified as being high risk settings where there is evidence of a risk of rapid spread and ongoing chains of transmission where an infectious case is introduced. People who work or reside in these settings are at increased risk of infection as a result of the high population density, and other particular environmental conditions.

Taking these factors into consideration, there is a high level of risk for all Queensland Health employees working in facilities where care is provided due to both environmental factors, and the increased likelihood of exposure to an infected person.

These factors also pose risks to Queensland Health patients, clients and people who access care through Queensland Health providers, particularly as these people are often considered vulnerable individuals at increased risk of severe illness.

Since the start of the pandemic, a number of Queensland Health employees have contracted the virus in the workplace, triggering outbreak response which included wide scale lockdowns to minimise the scale of outbreaks. These transmission events potentially expose Queensland Health's patients and staff to COVID-19, as well as the broader Queensland community. The likelihood of transmission within health settings is greater with non-vaccinated employees than with vaccinated employees.

Critically, in New South Wales, Victoria as well as other countries around the world there have been a large number of hospital outbreaks initiated by infected, non-vaccinated healthcare workers, resulting in the deaths of dozens of vulnerable inpatients who were admitted to hospital for other reasons but died as a result of hospital acquired COVID-19. [emphasis added]

  1. [10]
    Importantly, in the briefing note Queensland Health recorded that both the research and the experience of Queensland Health over the previous 18 months was that there was an increased risk to Queensland Health employees and patients from COVID-19 when compared with the general population. Queensland Health noted evidence and experience from other jurisdictions of patients acquiring COVID-19 from healthcare workers, resulting in death and permanent disability.[5]
  2. [11]
    The view taken in the briefing note is supported by the evidence of Professor Paul Griffin who has education, training and experience in infectious diseases and vaccine development. Professor Griffin explained that numerous studies[6] have demonstrated an increased risk of acquisition in health care workers as well as in their families. The studies showed that while the risk is likely to be greatest in front-line health care workers, particularly nursing staff, the increased risk extends to essentially all other hospital, aged care, disability care or other health care workers, including cleaning and support staff, or any other staff deemed essential.[7]
  3. [12]
    Professor Griffin also explained that there were high risks in terms of the consequences of being infectious in the workplace given the vulnerable nature of the patients or clients cared for in these environments. Not only were these patients likely to be at greater susceptibility to infection, but these patients were also at higher risk of severe consequences and death from COVID-19.[8]
  4. [13]
    The point is that Queensland Health was concerned about the elevated level of risk to patients where a staff member worked without being vaccinated. This was in a context where the mortality rates of COVID-19 were significantly higher than influenza.
  5. [14]
    The Department’s rationale was explained in this way:

In considering the very real and imminent risk posed by the virus to Queensland Health employees, patients, clients and the community, it would appear inherently reasonable that Queensland Health's workforce should be required to be vaccinated against COVID19. This would align with Queensland Health's legislative obligations, as well as the community expectations that healthcare workers and staff involved in healthcare delivery would make every effort to keep patients and the community safe.

  1. [15]
    Queensland Health identified various groups within its workforce who were at an increased risk of contracting or transmitting the virus. Those employees who worked in public hospitals or other facilities where clinical care and support was provided were identified as “Group 2”.[9]
  2. [16]
    Mr Drage fell within the “Group 2” Queensland Health employees.
  3. [17]
    The briefing note that recommended the approval of that policy position, and the attached proposed health employment directive identified the particular health context at that time:[10]
  1. 9.
    Taking into consideration the daily transmission events occurring in New South Wales health facilities, as well as other transmission events linked to Health Care Workers, there is a demonstrable level of risk associated with the work performed by employees in the cohort impacted by the HED.
  1. 10.
    Due to the highly transmissible and increasingly virulent nature of COVID-19, particularly the Delta variant, increasing numbers of employers have announced policies requiring employee vaccination, including QANTAS, SPC and New South Wales, Tasmania and Western Australian Health departments.
  1. [18]
    Of course, Queensland Health owed its own obligations to its employees pursuant to workplace health and safety legislation.
  2. [19]
    Based on the rationale in the briefing note, including the attached policy position, Dr Wakefield, the Director-General of Queensland Health, approved the recommendation for the mandatory vaccination of Queensland Health employees. He noted that HED12/21 had been drafted to give effect to that recommendation.
  3. [20]
    HED12/21 was updated on 30 September 2021 and was effective until 25 September 2023.

The Terms of the Health Directive

  1. [21]
    It is necessary to explain the terms of HED12/21. The ‘directive’ was as follows:

The COVID-19 virus has been shown to disproportionately affect healthcare workers and health support staff and poses a significant risk to Queensland Health patients, and the broader community.

In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, this HED requires health service employees who are identified as being in high risk groups to be vaccinated against COVID-19.

And then clause 7.1 provided:

In acknowledgment of the risks posed by the COVID-19 virus to the health and safety of Queensland Health employees, patients and the broader community, clauses 8 and 9 of this HED require all existing and prospective employees who are or are to be employed to work in the cohorts as categorised in accordance with Table 1 (below), to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of this HED.

  1. [22]
    Clause 10 of HED12/21 provided for exemptions. Clause 10.1 specified that where an existing employee is unable to be vaccinated, they are required to complete an exemption application form. Clause 10.2 states that exemptions will be considered in the following circumstances:
    1. where an existing employee has a recognised medical contraindication;
    2. where an existing employee has a genuinely held religious belief;
    3. where another exceptional circumstance exists.
  2. [23]
    As will be explained in more detail below, Mr Drage made three applications for exemption which were unsuccessful.[11]

The Disciplinary Process

  1. [24]
    Mr Drage was subject to a disciplinary process which commenced between his first and second applications for exemption (discussed below). The disciplinary process involved the hospital:[12]
    1. issuing a first show cause notice (grounds for discipline);
    2. issuing a second show cause notice including proposed disciplinary action; and
    3. imposing disciplinary action.[13]
  2. [25]
    The hospital sent Mr Drage a letter on 14 October 2021 stating that that he had not provided evidence confirming that he had received the vaccination. The letter specified that he had been required to receive the first dose of the vaccination by 30 September 2021. On 16 December 2021, the hospital issued the first show-cause notice to Mr Drage. Mr Drage was given 14 days to respond to the notice. Mr Drage provided a response on 30 December 2021, and a further response on 9 January 2022.
  3. [26]
    A second notice to show cause was issued on 18 January 2022. Mr Drage responded in detail by email dated 1 February 2022. His email attached:
    1. a letter to the hospital administration;
    2. an affidavit;
    3. an open letter to Queensland Health employers;
    4. a number of attachments.
  4. [27]
    The response continued something of a counterattack that he started with his third application for exemption (discussed below). In the letter, Mr Drage describes his letter as a final notice and statement of truth which afforded the hospital “this final opportunity to rebut the affidavit before this matter goes before the court”. It is fair to say that Mr Drage protests the validity of the requirement of a “forced vaccination” of “unknown consequences”.
  5. [28]
    Curiously, the attached affidavit commenced with these words:
  1. 1.
    I am a living man commonly addressed by the name Steven, herein after man, am competent to state the following matters are true, correct, presented in good faith, and not intended to mislead. I affirm by my Lord Jesus Christ that the following is true.
  1. Statement of Truth of:
  1. 2.
    Steven, from the family of Drage, who is a living man being according to KJV Bible, Genesis 1:26-28
  1. 3.
    Genesis 1:26-28 And God said, let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth…[14]
  1. [29]
    Paragraphs 21 and 22 of Mr Drage’s affidavit were as follows:
  1. 21.
    THAT I : Steven, according to the book of Genesis, am the sole and absolute owner of myself, my body, and my estate, and possess unconditional, sovereign title thereto, and that l abjure, renounce, forsake, and disavow utterly and absolutely now and forever all presumptions of power, authority, or right by any governmental agency, its principals, over the rights, life, liberty, freedom or property of this Affiant from whatever source presumed or derived.
  1. 22.
    THAT I, the Affiant, are NOT a Legal Fiction Person (as defined in a Law Dictionary) as being a Corporate Entity (incorporated or nonincorporated) or some other kind of Partnership, BUT INSTEAD a living breathing, sovereign, flesh and blood Living Man with a living soul, with a distinct mind that is capable of possessing personal knowledge commonly called: (of the family, when necessary to distinguish our Clan).
  1. [30]
    Paragraph 60 of the affidavit was as follows:
  1. 60.
    I put you on notice even though all laws including those laws outlined in this affidavit appear to be valid they are just rulings of foreign corporations masquerading as government and only become law when you consent to them.[15]
  1. [31]
    As can be seen, the affidavit is difficult to understand. It contains some references to Christian concepts, including reference to the Book of Genesis, a part of the bible. However, oddly, Mr Drage’s affidavit does not attempt to explain his religious beliefs or how those beliefs prevented him from being vaccinated. 
  2. [32]
    Mr Drage’s employment was terminated on 10 February 2022 pursuant to section 188(1) of the Public Service Health Act 2009 (Qld) (now repealed).

QIRC Proceedings

  1. [33]
    Shortly after his employment was terminated, Mr Drage made an application to the Queensland Industrial Relations Commission for reinstatement.[16] He also made challenges under the Human Rights Act 2019 (Qld). On the last day of the hearing in the QIRC, Mr Drage sought to transfer the proceedings to this court. He did that because he realised he could seek a judicial review of the decisions of the respondents pursuant to the Judicial Review Act 1991 (Qld). Mr Drage was given leave to discontinue the QIRC proceedings. Mr Drage filed an originating application in this court on 4 April 2024.
  2. [34]
    On 17 October 2024, Bradley J granted Mr Drage an extension under the Judicial Review Act 1991 to make this application and dismissed the respondents’ application to dismiss the originating application.[17]

Grounds of Review and Relief Sought

  1. [35]
    Mr Drage applies to review the decisions to deny his exemption applications, to terminate his employment, and to review the findings of misconduct on his employment record.  Several grounds of review are advanced.[18] The originating application seeks the following relief:
    1. An order certiorari to quash the decision to deny the exemption, to terminate the employment and the permanent recording of misconduct on the employment record of the Applicant;
    2. An injunction to restrain the enforcement of the termination and the misconduct finding;
    3. A declaration that HED12/21 issued on 11 September 2021 and B70 Policy issued by Queensland Health in September 2021, were unlawful under section 58 of the HRA.
    4. A declaration stating the HED12/21 in relation to denial of religious exemptions was unlawful.
    5. A declaration stating the HED12/21 in relation to denial of religious exemption by the panel chair Dr Jeremy Wellwood, and the upholding of Dr Wellwood’s decision by Mr Grant Brown, were unlawful pursuant to section 58 HRA as the Respondents failed to make proper consideration of Mr Drage’s human rights. [emphasis added]
  2. [36]
    On 17 October 2024, Bradley J made an order that required Mr Drage to notify the respondents whether he intended to challenge the validity of HED12/21. By email, Mr Drage advised that he did not intend to challenge the HED12/21 ‘in its entirety’. The following amendments to the originating application were sent by email, with paragraphs 1, 2 and 5 of the application remaining unchanged (i.e. sub-paragraphs (a), (b) and (c) above):
    1. A declaration that pursuant to section 58(1) Human Rights Act 2019, it is an unlawful operation of the HED 12/21 issued on 11 September 2021 and 30 September 2021 and of the B70 Policy for them to operate to limit or abrogate the religious belief right contained in section 20(1)(a) Human Rights Act 2019;
    2. A declaration that pursuant to section 58(1) Human Rights Act 2019, it is an unlawful operation of the HED 12/21 issued on 11 September 2021 and 30 September 2021 and of the B70 Policy for them to operate in breach of s 20(2) of the Human Rights Act 2019;
    3. A declaration that pursuant to section 58(1) of the Human Rights Act 2019, it is an unlawful interpretation and application of section 13 of the Human Rights Act for it to operate to empower the HED 12/21 and the B70 Policy to limit or abrogate the religious belief right contained in section 20(1)(a) Human Rights Act or to justify a breach of section 20(2) of the Human Rights Act 2019;
    4. A declaration that pursuant to section 58(1) Human Rights Act 2019, it is unlawful for the Respondents to punish the applicant for failing to abandon his own religious beliefs and for failing to adopt the religious beliefs of the respondent [emphasis added]
  3. [37]
    The words emphasised above illustrate two features of Mr Drage’s case. The first is that Mr Drage’s principal challenge is not to HED12/21 itself but rather to the application of HED12/21 to Mr Drage’s situation. During submissions I asked Ms Stancliffe (who largely presented the case for Mr Drage) whether Mr Drage’s real complaint was the implementation of the HED12/21 rather than the lawfulness of the HED12/21 itself. It is fair to say that Ms Stancliffe was unwilling to confine Mr Drage’s case in that way, even though almost all of Mr Drage’s substantive complaints are directed to the way in which the policy was implemented.
  4. [38]
    The second feature of Mr Drage’s case is that he seeks to maintain his human right to have and maintain his own religious beliefs. His case was not and is not pursued on the basis that he has some wider right to freedom of thought and conscience.  
  5. [39]
    The majority of Mr Drage’s submissions relate to his right to freedom of religion and belief which is grounded in section 20 of the Human Rights Act 2019:
  1. (1)
    Every person has the right to freedom of thought, conscience, religion and belief, including—
  1. (a)
    the freedom to have or to adopt a religion or belief of the person’s choice; and
  1. (b)
    the freedom to demonstrate the person’s religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.
  1. (2)
    A person must not be coerced or restrained in a way that limits the person’s freedom to have or adopt a religion or belief.
  1. [40]
    It can be seen that section 20(1) gives a broad right to freedom of thought, conscience, religion and belief and then specifically addresses two limbs of that broad right:
    1. the freedom to have or adopt a religion or belief; and
    2. the freedom to demonstrate the person’s religion or belief.
  2. [41]
    Section 20(2) then says a person cannot be coerced or restrained in a way that limits the person’s freedom to have or adopt a religion or belief (the first limb). That leaves open the possibility that the laws of a community may restrain the demonstration of a religion (the second limb), but not the person’s right to have or adopt a religion.
  3. [42]
    In R (on the application of Williamson) v Secretary of State for Education and Employment Lord Nicholls said this:
  1. [15]
    I turn to the claims based on the claimants' Convention rights. Religious and other beliefs and convictions are part of the humanity of every individual. They are an integral part of his personality and individuality. In a civilised society individuals respect each other's beliefs. This enables them to live in harmony. This is one of the hallmarks of a civilised society. Unhappily, all too often this hallmark has been noticeable by its absence. Mutual tolerance has had a chequered history even in recent times. The history of most countries, if not all, has been marred by the evil consequences of religious and other intolerance.
  1. [16]
    It is against this background that art 9 of the Convention safeguards freedom of religion. This freedom is not confined to freedom to hold a religious belief. It includes the right to express and practise one's beliefs. Without this, freedom of religion would be emasculated. Invariably religious faiths call for more than belief. To a greater or lesser extent adherents are required or encouraged to act in certain ways, most obviously and directly in forms of communal or personal worship, supplication and meditation. But under art 9 there is a difference between freedom to hold a belief and freedom to express or 'manifest' a belief. The former right, freedom of belief, is absolute. The latter right, freedom to manifest belief, is qualified.
  1. [17]
    This is to be expected, because the way a belief is expressed in practice may impact on others. Familiar instances of conduct shaped by particular religious beliefs are the days or times when worship is prescribed or encouraged, the need to abstain from work on certain days, forms of dress, rituals connected with the preparation of food, the need for total abstinence from certain types of food or drink, and the need for abstinence from all or some types of food at certain times. In a more generalised and non-specific form the tenets of a religion may affect the entirety of a believer's way of life: for example, 'thou shalt love thy neighbour as thyself'. The manner in which children should be brought up is another subject on which religious teachings are not silent. So in a pluralist society a balance has to be held between freedom to practise one's own beliefs and the interests of others affected by those practices.[19] [Emphasis added]
  1. [43]
    As will be considered below, Mr Drage argued that he possessed an absolute right to hold and manifest his religious views. The judgment of Lord Nicholls makes clear that, whilst the freedom of belief is absolute, the freedom to manifest a belief is necessarily qualified. That is necessarily so because the way a belief is expressed in practice may impact on others in our community.[20]

Was the Decision Unlawful?

  1. [44]
    HED12/21 was issued pursuant to section 51A of the Hospital and Health Board Act 2011. That section permitted the chief executive to issue health employment directives about the conditions of employment for health service employees. That section is sufficiently broad to comprehend the requirement for employees to be vaccinated. There is no doubt that HED12/21 was authorised and lawful pursuant to section 51A.
  2. [45]
    Of course, as explained, HED12/21 expressly provides that Queensland Health employees may seek an exemption where that employee has a “genuinely held religious belief”. In an explicit way that exemption accommodates certain human rights issues (discussed below).
  3. [46]
    Mr Drage’s submissions takes a rather extreme position:

It is entirely irrelevant if the vaccine is purported to have been effective at any stage in the history of the pandemic events, because the nature of an absolute and non-derogable human right, such as the religious belief rights, is that they cannot be limited or abrogated even in a time of emergency that threatens the life of a nation, pursuant to the Queensland Government document titled Human Rights Respect Protect Promote Guide Nature and Scope of the human rights within the Human Rights Act 2019 in Exhibit 31 on p.9 and p 48, and pursuant to the ICCPR Article 18 and 4, a treaty within Australia has ratified and brought into law in the Human Rights Act 2019.

This absolute and non-derogable protection for the religious belief rights at s 20(1)(a) and s 20(2) of the Human Rights Act means they cannot be limited or abrogated by executive policies, even if there were a vaccine that was definitely proven to be 100% effective.[21] [emphasis added]

  1. [47]
    In her submissions for Mr Drage, Ms Stancliffe repeated the assertion that human rights, such as the right to have or adopt or practice a religion is an “absolute and non-derogable” human right.
  2. [48]
    That submission is, no doubt, based on the Article 4 of the International Covenant on Civil and Political Rights which provides for a derogation power, which allows governments to temporarily suspend the application of some rights in the exceptional circumstance of a ‘state of emergency’.[22] There are seven human rights that are non-derogable, namely:
    1. right to life;
    2. freedom from torture or cruel, inhuman and degrading treatment or punishment; and freedom from medical or scientific experimentation without consent;
    3. freedom from slavery and servitude;
    4. freedom from imprisonment for inability to fulfil a contractual obligation;
    5. prohibition against the retrospective operation of criminal laws;
    6. right to recognition before the law;
    7. freedom of thought, conscience and religion.
  3. [49]
    But, there are three important considerations here. One is that the United Nations Human Rights Committee has stated that the qualification of a human right as non-derogable does not mean that no limitations or restrictions would ever be justified.[23]  Nation states that interfere with the freedom to manifest one’s religion or belief must justify their actions, even in times of most serious public emergencies.[24]
  4. [50]
    The second is that the right to freedom of thought, conscience and religion is not one-dimensional. A person’s freedom of thought, conscience and religion is at the core of the right. In a sense that is part of a person’s right to internal autonomy.[25] But, a person’s freedom to demonstrate or manifest that person’s religion or belief by worship, observance, practice and teaching, either individually or as part of the community, raises issues, including the potential conflict with the human rights of others.[26] And so, to reference some examples of potential conflicts:
    1. In Valsamis v Greece[27] the applicant argued that taking part in a parade celebrating military action was against their religious pacifist views;
    2. In Dahlab v Switzerland[28] a schoolteacher who was banned from teaching in a primary school because she dressed in traditional, modest clothing including a headscarf;
    3. In Sahin v Turkey[29] a medical student attending Istanbul University was denied entry to one of her exams due to her wearing a headscarf. Turkey argued that a restriction of the wearing of a headscarf was necessary to protect religious plurality, the principle of secularism in its constitution, and the gender equality of women;
    4. In X v The United Kingdom[30] a Sikh complained that he could not legally ride a motorcycle in the UK as the law that required him to wear a motorcycle helmet was incompatible with wearing his turban;
    5. In Donaldson v United Kingdom[31] Mr Donaldson breached a ban on all prisoners in Northern Ireland wearing, outside their cells, emblems with a political or sectarian connotation; on Easter Sunday, 23 March 2008, Mr Donaldson affixed an Easter lily to his outer clothing in commemoration of those Irish republicans who died during or were executed after what is known as the 1916 Easter Rising;
    6. It is recognised in international and regional fora that women’s rights are often curtailed or violated in the name of religion;[32]
    7. Even land use and cultural issues can arise such as the project of the Mega Mosque in East London.[33]
  5. [51]
    Those broad-ranging conflicts illustrate that rarely is there a dispute concerning a persons’ right to ‘have or adopt’ a religion or belief (the first limb). Invariably, the battleground concerns the freedom to demonstrate or practice a person’s religion or belief (the second limb).
  6. [52]
    The third important consideration is that in Queensland a citizen’s human rights are protected by sections 15 to 37 of the Human Rights Act 2019. However, section 13(1) expressly provides that those human rights may be subject, under law, to reasonable and justifiable limits. There are numerous examples where the right to religious freedom has been limited pursuant to section 13(1) or its equivalents.[34]
  7. [53]
    It follows that, despite Mr Drage’s focus on his religious rights as an “absolute and non-derogable” human right, the hospital and Queensland Health were entitled to avail themselves of section 13(1) to subject Mr Drage’s human rights to reasonable and justifiable limits.
  8. [54]
    Section 13(2) provides that:

In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—

  1. the nature of the human right;
  2. the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
  3. the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
  4. whether there are any less restrictive and reasonably available ways to achieve the purpose;
  5. the importance of the purpose of the limitation;
  6. the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
  7. the balance between the matters mentioned in paragraphs (e) and (f).
  1. [55]
    That means that, in considering whether limits on a human right are reasonable and justifiable, the correct approach is to consider the relevant factors and to weigh those factors in order to determine whether the limit is reasonable and justifiable.
  2. [56]
    In my view, the limits on religious rights imposed by HED12/21 are reasonable and justifiable. First, HED expressly preserved the rights of employees to have a genuinely held religious belief. Second, the limits on that right were relatively modest. The employee need only complete an application for exemption, albeit with some supporting evidence. Third, HED12/21 struck a balance between the employee’s right to maintain their religious beliefs and the risks to the patients, other employees and the community in having unvaccinated staff of hospitals and healthcare facilities.
  3. [57]
    On that last point, the court should not be too critical of the assessments made in the course of the balancing exercise required by section 13. The balancing of rights is an inherently difficult exercise. And, in the context of a pandemic, the hospital and Queensland Health were entitled to attach significant weight the threats to, or perceived risks to, the health of patients, staff and the community. And, of course, there are also dangers in viewing the balancing exercise with the benefit of hindsight.
  4. [58]
    Here, the risks to patients in particular were perceived to be dire. There had been, as the briefing note explained, a number of hospital outbreaks of COVID-19 in NSW and Victoria as well as in other countries around the world. These outbreaks were considered to have been initiated by infected, non-vaccinated healthcare workers. In the circumstances, requiring health workers to be vaccinated – subject to the three exemptions – might reasonably be thought to be a minor limit on religious freedom. After all, the countervailing concern was the illness or death of vulnerable patients.
  5. [59]
    In my view, the limit on religious freedom in HED12/21 was reasonable and justified.
  6. [60]
    It is necessary to note that section 13(1) provides that: “A human right may be subject under law only to reasonable limits”. The expression “under law” has a wide import. It plainly applies to HED12/21 which, as explained, was a directive issued pursuant to section 51A of the Hospital and Health Boards Act 2011. The directive was binding on both health employees and health services.
  7. [61]
    Relying on his right to freedom of religion and belief, Mr Drage seeks declarations that deploy section 58 of the Human Rights Act 2019. That section places two types of obligations on decision-makers:
    1. First, the substantive limb requires decision-makers to make decisions that are compatible with human rights.
    2. Second, the procedural limb requires decision-makers to give proper consideration to human rights when making a decision.
  8. [62]
    Those limbs will be considered in reverse order.

The Procedural Limb

  1. [63]
    The ‘procedural limb’ in section 58(1)(b) of the Human Rights Act 2019 provides that: “It is unlawful for a public entity …(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.”
  2. [64]
    Section 58(5) further provides:

For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—

  1. (a)
    identifying the human rights that may be affected by the decision; and
  1. (b)
    (b) considering whether the decision would be compatible with human rights.
  1. [65]
    The procedural limb was considered in detail by Martin SJA in Johnston v Carroll (Commissioner of the Queensland Police Service).[35] That case involved directions from the Commissioner of Police and Director-General of the Department of Health for Queensland Ambulance staff requiring employees to be vaccinated. In relation to the Johnston (police) applicants, Martin SJA held that the Commissioner had failed to give proper consideration to the human rights that may have been affected by the decisions. The Commissioner’s consideration of human rights was insufficient because the Commissioner had not identified the human rights that might have been affected by the decision, and she had not considered whether the decision would be compatible with human rights.
  2. [66]
    Martin SJA summarised the test in determining whether the procedural limb was met:[36]
  1. [75]
    The test for a similar provision under the Charter was paraphrased by Tate JA in Bare[37] in this way:
  1. “… for a decision-maker to give ‘proper’ consideration to a relevant human  right, he or she must: (1) understand in general terms which of the rights of               the person affected by the decision may be relevant and whether, and if so               how, those rights will be interfered with by the decision; (2) seriously turn               his or her mind to the possible impact of the decision on a person’s human               rights and the implications thereof for the affected person; (3) identify the               countervailing interests or obligations; and (4) balance competing private               and public interests as part of the exercise of justification.”
  1. [76]
    Section 58(5) of the HRA imposes a more detailed requirement than does the Charter — proper consideration includes identification of the human rights that may be affected by the decision.
  1. [77]
    The test in Bare was considered by the Victorian Court of Appeal in Thompson v Minogue[38] and, subject to the need to identify the affected human rights, it provides guidance in considering whether s 58(5) has been satisfied. A unanimous court[39] added this to the process of analysis:
  1. (a)
    the factors in [s 13 HRA] may provide a useful framework or reference point for the balancing of competing private and public interests which limb 4 of the HJ test requires;
  1. (b)
    the phrase ‘as part of the exercise of justification’ in element 4 of the HJ test does not import into the procedural limb of [s 58(1)(b) HRA] the requirements of [s 13 HRA];
  1. (c)
    a public authority may give proper consideration to a relevant human right without giving direct and express consideration to each of the matters set out in [s 13]. A construction that required such consideration would be               contrary to the principle derived from Castles that the procedural limb does               not involve a sophisticated legal exercise and that there is no formula for compliance with it;
  1. (d)
    in giving proper consideration to a relevant human right in the manner required by the HJ test, a public authority will need to make a broad and               general assessment of whether the impact that its conduct will have upon a relevant human right is appropriate in all the circumstances. That broad and               general assessment is ‘the exercise of justification’ in element 4 of the HJ test. The matters in [s 13] may, in appropriate cases, assist a public authority in making that broad and general assessment; and
  1. (e)
    the adjective ‘proper’ means that the standard of consideration must be higher than that generally applicable at common law to taking into account relevant considerations.
  1. [67]
    Here, in deciding to approve HED12/21, the briefing note was put to Dr Wakefield. The briefing note comprised:
    1. the briefing note itself – it is noted as ‘approved’ and includes Dr Wakefield’s signature;
    2. Attachment 1: Policy Position: Mandatory Vaccination for Queensland Health employees (as at 6 September 2021);
    3. Attachment 2: A draft of the Health Employment Directive.
  2. [68]
    Dr Wakefield was not called as a witness. However, it is “reliable and appropriate” to infer that Dr Wakefield read, understood and approved the briefing note.[40]
  3. [69]
    Under the heading “Sensitivities/Risks”, the briefing note records this:

There are risks associated with the impacts of mandatory vaccination on those employees who are unable to be vaccinated for reasons of medical contraindication, however this cohort is anticipated to be small (less than one per cent) and will be managed through an exception process to ensure the human rights of this group are taken into consideration.

Consideration will also be given to those employees who are unable to be vaccinated for reasons which pertain to a protected attribute under the Anti-Discrimination Act 1999 (Qld), for example due to a genuinely held religious belief.

  1. [70]
    Further, the attached policy document records specific consideration of religious beliefs:

“Employees may be unable to be vaccinated due to medical contraindication to the COVID-19 vaccine; or due to a genuinely held religious belief. It is anticipated this will be a small cohort of employees, and Queensland Health has particular obligations to these cohorts arising from the Human Rights Act 2019 (Qld) and the Anti-Discrimination Act 1999 (Qld). Where this issue arises, the employee will be required to provide evidence substantiating these circumstances and the following process will be followed…”

  1. [71]
    The process includes:
    1. Employees providing evidence substantiating their medical contraindication or their genuinely held religious belief;
    2. Consideration of alternative working arrangements (e.g. working remotely);
    3. Consideration of options for the employee to be temporarily redeployed;
    4. Consideration of any other reasonable adjustment (e.g. additional PPE);
    5. The employee accessing their leave entitlements;
    6. An ‘exit strategy’.
  2. [72]
    The process included consulting with those employees who raise a conscientious objection or had ‘vaccine hesitancy’.
  3. [73]
    The policy document included a detailed human rights assessment. In that document Queensland Health identified a number of human rights that may potentially be limited by the proposed policy. The policy notes that the virus that causes COVID-19 is highly virulent and can cause serious illness and death, particularly for Queensland Health patients.
  4. [74]
    Amongst the human rights noted is the right to life reflected in section 16 of the Human Rights Act 2019. The passage there notes the risks of side-effects but also:

“Arguably, the right to life is engaged (that is relevant) but not limited, by the proposed policy.”

  1. [75]
    It is rather elliptically expressed, but the concern is the right to life of patients who might be at greater risk with non-vaccinated staff.
  2. [76]
    The policy expressly deals with the freedom of conscience and religion:

“Freedom of conscience and religion (s 20 of the Human Rights Act) - The proposed policy will treat people with a religious or conscientious objection on a case-by-case basis. However, the policy will prioritise redeployment options for people with a religious objection (or a contraindication) over those with a conscientious objection. In either case, there may still be consequences for a person with such an objection. This means that the freedom of conscience and religion will be limited. A conscientious belief for the purposes of s 20 of the Human Rights Act encompasses 'views based on strongly held moral ideas of right and wrong'." In the context of vaccinations, case law in Europe suggests that there will need to be clear evidence of a deeply ingrained belief before freedom of conscience is engaged. A person may also have a genuinely-held religious belief about vaccines. For example, the Catholic Church advises against using vaccine products that use cell lines derived from an aborted foetus (such as AstraZeneca), unless another vaccine (such as Pfizer) is not available.”

  1. [77]
    The policy does not shirk from identifying the limitation on religious and conscientious rights:

“What is at stake is the recognition that people are entitled to make decisions about their own life and their own bodies, which is an aspect of their individual personality, dignity and autonomy. Requiring a person to receive medical treatment - such as a vaccine which they do not wish to receive is an affront to their dignity, and the principle of personal inviolability.

When it comes to people with genuine religious and conscientious objections, one of the values that underpins a pluralistic society like Queensland is 'accommodation of a wide variety of beliefs', including beliefs about health and vaccinations. Freedom of religious and conscientious belief 'is of the essence of a free society'.

Creating consequences for a person's employment also affects a person's dignity and autonomy through work. For the public service in particular, it engages the values underlying secure tenure, such as independence.”

  1. [78]
    Nor does the policy shirk from the health risks:

“The purpose of mandatory vaccinations for Queensland Health employees is to ensure the readiness of the health system in responding to a pandemic, as well as to protect the right to life of both the employees and the community they serve. Evidence indicates rates of infection and transmission of COVID-19 among healthcare workers are substantially higher due to the nature of the work performed and the environmental context. The risk the virus poses to vulnerable groups such as the elderly and patients with comorbidities is also significantly higher than the general population.

The policy also aligns with a growing expectation among the community that all Queensland Health employees are vaccinated against COVID-19 to ensure that patients and the broader community are kept safe from the virus. All of these purposes are legitimate and consistent with the values of our free and democratic society.”

  1. [79]
    The benefits and risks of the proposed policy are carefully weighed, and this conclusion is reached:

“Overall, the harm caused to human rights would be outweighed by the benefits of ensuring the readiness of the health system to respond to a pandemic, as well as the protection and promotion of the right to life.”

  1. [80]
    In my view, the procedural limb in section 58(1)(b) of the Human Rights Act 2019 was satisfied. The respondents did give proper consideration to the section 20 human right. The test in Bare[41] was satisfied because, in deciding to implement HED12/21, Dr Wakefield did give ‘proper’ consideration to a relevant human right. The briefing note discloses that he:
    1. understood the rights of the persons affected by the decision and whether and how those rights will be interfered with by the decision;
    2. seriously turned  his mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person;
    3. identified the countervailing interests or obligations; and
    4. appropriately balanced the competing private and public interests as part of the exercise of justification.
  2. [81]
    It follows that HED12/21 is lawful and valid.

The Substantive Limb

  1. [82]
    It is now necessary to consider Mr Drage’s objections to the way in which HED12/21 was implemented or administered. As explained, the substantive limb of section 58(1) of the Human Rights Act 2019 requires decision-makers to make decisions that are compatible with human rights. Mr Drage argues that the decision to refuse his exemption application was incompatible with his human right to religious freedom.
  2. [83]
    Unfortunately, Mr Drage’s application for a religious exemption was vague, imprecise and, at least in part, indecipherable.
  3. [84]
    Before looking at the detail of Mr Drage’s application for an exemption, it is necessary to consider a submission made by Mr Murdoch KC and Ms Brooks for the respondents. They submitted that Dr Wakefield’s approval of the policy meant that any application for an exemption must comply with the procedural requirements of the policy. In particular, their submission was that any application was required to include proof by means of a letter from a religious leader.
  4. [85]
    I do not read the applications for exemption under HED12/21 to be so restricted. An applicant did need to make an application for exemption. And, once the application was made, the respondents were obliged to properly consider the application. The respondents might sensibly and properly consider an application for exemption, even if the formal requirements were not entirely satisfied. For example, the respondents might well be satisfied that a particular applicant for exemption had a genuinely held religious belief that prevented that applicant from agreeing to be vaccinated – even in the absence of a letter from their local religious letter. In my view, it was the substance of the application rather than the form of the application that was important.
  5. [86]
    In fact, it is relevant to note that the third of the exemptions was something of a ‘catch-all’ - where another exceptional circumstance exists. That ‘catch-all’ would permit an exemption where the application, or the evidence, did not quite meet the requirements for the other exemptions.

The First Application

  1. [87]
    Mr Drage’s application was sent to the Gold Coast Hospital on 29 September 2021. At the trial there was a dispute as to whether Mr Drage ticked the boxes on the form to indicate which type of exemption he was applying for. Given what later happened, it is unnecessary to decide that factual dispute.[42]
  2. [88]
    On the form, under the category of “Other Exceptional Circumstances”, Mr Drage wrote this:

“Based on exceptional circumstances within the meaning of Paragraph 10 of the directive and Paragraph 5 of the HR Policy B70 (the HR Policy)

Paragraph 5 states: 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.

Under the Work Health and Safety Act 2011, the required duty of consultation has not been met. Please refer to additional exemption letter with relevant law.

The application for exemption is made having regard for s 51(B) of the Hospital and Health Boards Act 2011 (Qld) and is separately an exercising of my workplace rights under section 284 of the Industrial Relations Act 2016 (Qld).

I also have additional reasons for my exemption request which I would personally appreciate the opportunity to discuss including but not limited to scientific, medical and religious grounds.” [emphasis added]

  1. [89]
    It can be seen that Mr Drage’s objections to being vaccinated were wide-ranging.
  2. [90]
    Mr Drage’s application attached two documents. The first was a journal article: “The Vaccine Death Report” from a publication called ‘STOPWORLDCONTROL.COM’. The second was a letter from Mr Drage as a member of the Nurses Professional Association of Queensland (NPAQ). According to Ms Wellwood this letter was in the same form as many received by the hospital.
  3. [91]
    The Vaccine Death Report is not a medical report, let alone a medical report from a recognised medical journal. It is, in effect, a call to arms. From the language used in the ‘report’ it seems to have been drafted in the United States. The experience and qualifications of the authors are unstated. Much of the ‘report’ involves quotes from other people whose experience and qualifications are also unstated.
  4. [92]
    The allegations in the report are extraordinary:
    • “all over the world millions of people have died, and hundreds of millions of serious adverse events have occurred after injections with experimental mRNA gene therapy”;
    • “[there is] the real risk of unprecedented genocide”;
    • “we are currently witnessing the greatest organised mass murder: in the history of our world”;
    • “once the human genome is altered that person is no longer considered an original human being but has become a transhuman and therefore lose human rights…the altered DNA and RNA can be patented, making that genetically modified person property of the patent holders”;
    • “For decades the tyrannical system of worldwide oppression and control, called the New World Order, was labeled a conspiracy theory. But as it is with all so called conspiracy theories, after some time they prove to be more than theories…”
  5. [93]
    The Vaccine Death Report is not entirely specific to COVID-19 vaccines but relies on claims that adverse events from vaccines generally are under-reported. The claims are not substantiated by any reference to reputable medical journals or other medical evidence.
  6. [94]
    It is important to note that whilst Mr Drage’s application notes a wish to discuss “additional reasons” for his exemption application – including but not limited to specific, medical and religious grounds – Mr Drage’s application seems to fall into these categories:
    1. The required duty of consultation had not been met;
    2. The vaccine was not safe or effective;
    3. There was a workplace right to refuse the vaccine.
  7. [95]
    It is important to note that, on its face, the application did not assert any words to this effect: ‘I have a genuinely held religious belief which prevents me from being vaccinated’.
  8. [96]
    Mr Drage’s exemption request was considered by the COVID-19 Vaccine Exemption Request Panel for the Gold Coast Hospital on 15 October 2021. The panel reviewed Mr Drage’s application and rejected it on the basis that it did not meet any of the criteria required for exemption. Mr Drage was advised of the refusal of his application on 25 October 2021.
  9. [97]
    Incidentally, the complaint that there was no, or insufficient, consultation has not been established. The briefing note explicitly refers to consultation with relevant stakeholders such as a number of unions.[43] The consultation was not shown by evidence to be inadequate.

The Second Application

  1. [98]
    On 9 November 2021 Mr Drage made a second request for an exemption which he describes as a request for a review of his denied exemption and as additional support evidence. At the beginning of his 11-page letter, Mr Drage explained his stance:

“I have been watching this situation very closely since it began overseas in 2019 and I have researched every avenue relating to the effects of COVID-19 and the outcomes of people who contract the virus. I have researched the trial vaccination, how effective it is against COVID-19, the side effects of taking a trial drug such as Pfizer or Astra Zeneca and I have also closely followed scientific research conducted in relation to natural immunity. It is my belief that anyone receiving a vaccination should be well informed and unbiased in their decision-making process. Given this vaccine is still in its trial phase until 2023, there is a lot relating to its safety, side effects and efficacy we do know about, and there is a lot we do not know about. This, along with the coercive and economic duress I am being put under to take the vaccine, is hindering my judgement and ability to decide.

As you have failed to conduct a fair and personal assessment with me regarding your request at any time, I will outline below the reasons I would like you to consider in you review of my exemption request.”

  1. [99]
    What follows is a lengthy list of reasons as to why Mr Drage says he should not be vaccinated and indeed why vaccinations against COVID-19 should not proceed at all.
  2. [100]
    Mr Drage’s 11-page letter raised these concerns:
    1. given “the global amount of reported side effects…. along with unexplained deaths, there is insufficient safety data on the entire range of vaccinations available”;
    2. there are no laws or public health orders that specifically require employers to mandate their employees to be vaccinated and Mr Drage’s employment contract does not require him to be vaccinated against COVID-19;
    3. the principles of human rights, particularly protection from torture and cruel, inhuman or degrading treatment means that he has the right not to be used for experiments (absent consent) or given medical treatment (absent consent);
    4. the COVID-19 vaccine is experimental, not approved and is a medical treatment he does not consent to;
    5. the denial of his application for exemption constitutes victimisation given that he is applying based on the following criteria (amongst other reasons) – family responsibilities, religious belief, political belief and past disability;
    6. human rights also protect rights such as conscience, a person’s moral sense of right and wrong;
    7. the Gold Coast had recorded only 300 COVID-19 cases and 1 death and Queensland had recorded 2098 cases and 7 deaths;[44]
    8. in 2008, Mr Drage had an accident at work where he fell 11 metres and the chances of him dying from that incident were 195.39% higher than the death rate from COVID-19 on the Gold Coast;[45]
    9. the Fair Work Ombudsman has stated that, in areas where no community transmission has occurred for some time,[46] a directive for employees to be vaccinated is less likely to be considered reasonable;
    10. the Gold Coast numbers are “very low”[47] and so the directive is not reasonable according to the Fair Work Ombudsman;
    11. a dissenting judgement in the Fair Work Commission said that it was widely accepted that vaccination should be voluntary;[48]
    12. Safe Work Australia says that a vaccinated person may still unknowingly carry and spread the virus to others;
    13. as a protective services officer Mr Drage does not and has not worked with diagnosed cases of COVID-19 and he has not entered the COVID-19 ward;
    14. Mr Drage is prepared to and does follow precautions such as mask wearing, PPE and good health and hygiene;
    15. the Federal Government has refused to mandate vaccines for all workplaces and says that employers will be left to give employees “reasonable directives” to their staff on COVID-19 vaccinations;
    16. the High Court case Attorney-General (Vic) v Commonwealth[49] decided that the Parliament [of the Commonwealth] cannot pass a law requiring citizens of States to keep their premises clean, or to submit to vaccination or immunisation;[50]
    17. religious grounds [this ground is covered in more detail below];
    18. Mr Drage’s father has a clotting issue and suffered from small and continuous strokes on a regular basis over 10 years – that means the vaccine “would be a huge risk for me”;
    19. the thought of losing his job and livelihood if he chooses not to have the vaccine is causing a lot of stress on Mr Drage and his family;
    20. Rapid Antigen testing would be a risk mitigation strategy he could adopt;
    21. Mr Drage has otherwise been healthy and has not used sick leave that was available to him;
    22. the current roster shows unvaccinated staff as “blacked out” – which is discriminatory;
    23. The Vaccine Death Report (attached) explains the deaths from the vaccine;
    24. the vaccines are experimental and ineffective;
    25. as the vaccine is still a trial, voluntary consent is required;
    26. the directive goes against Mr Drage’s “core values”.
  3. [101]
    Mr Drage complains that not once did the hospital management attempted to sit down with him to discuss his views and personal reasons for his hesitancy to receive a medical experiment and to discuss his options.
  4. [102]
    Religion features in only one paragraph of the 11-page letter. That paragraph is as follows:

“I am a Catholic. I do not believe in receiving medical experimental drugs that include ingredients such as 14week old male Caucasian, foetal cells. This is against everything I believe in, my body was made by my creator and is in perfectly functioning health, to be coerced with the threat of my employment and told to disturb my DNA as part of a worldwide experiment simply defies belief.”

  1. [103]
    Counsel for the respondents described this paragraph as a discursive statement and as a stream of consciousness. I am not sure it can be so summarily dismissed. However, some points can be noted about that paragraph:
    1. The fact that Mr Drage is a Catholic is not linked to the vaccination at all. He does not say, for example, that the teachings of the Catholic Church require that Catholics not undergo vaccinations;
    2. Mr Drage does not point to any proper or reputable evidence that establishes that any of the proposed vaccines are “medical experimental drugs” or that they include ingredients such as 14-week-old male Caucasian foetal cells;
    3. Mr Drage’s personal belief is against the use of such cells in medical experimental drugs;
    4. he is opposed to the threat to his employment;
    5. he is opposed to being required to “disturb my DNA” as part of a worldwide medical experiment.
  2. [104]
    Mr Drage’s Catholicism can be put aside. That appears to have nothing much to do with his objection to being vaccinated.
  3. [105]
    The other contentions in the paragraph are really claims that Mr Drage makes about the alleged experimental nature of the process of vaccination, and the alleged composition of the vaccines. Those are ‘facts’ that, it can be accepted, Mr Drage genuinely believes. But they do not appear to constitute, or be part of, any genuinely held religious belief on the part of Mr Drage.

What is a Religious Belief?

  1. [106]
    Martin SJA discussed the concepts of religious and conscientious beliefs in Johnston v Carroll.[51] In particular, it is worth noting two aspects.
  2. [107]
    The first is the idea that the protected belief – whether religious or not – must satisfy some modest, objective minimum requirements and must be intelligible and capable of being understood, and have a certain level of cogency, seriousness, cohesion and importance, and worthy of respect in a democratic society.
  3. [108]
    That is not intended as some sort of checklist. But it reflects the idea that the religious belief is anchored in a belief system. That is not the case here. Mr Drage’s 11-page letter does not evidence a particular belief system that, for example, forbids vaccination. Instead, the letter discloses that he holds fervent personal views that these particular vaccines are experimental, unproven and include undesirable ingredients. In other words, he has strong views about certain facts that he believes are associated with the vaccine.
  4. [109]
    The second aspect worth noting from Martin SJA’s discussion in Johnston v Caroll is the discussion of Vavricka v The Czech Republic.[52] In that case Mr Vavricka’s main motivation in resisting vaccination for his family was to protect the health of his children. He was convinced that vaccination caused health damage and so his conscience did not allow him to permit his family to be vaccinated. That left the Czech Constitutional Court to conclude that his critical opinion on vaccination was not such as to constitute a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9.[53] Mr Drage’s case bears some similarity to Vavricka.
  5. [110]
    On behalf of Mr Drage, Ms Stancliffe submitted that religion has a personal aspect. That is plainly right. But a citizen’s personal beliefs, no matter how fervently held, do not necessarily qualify as a religion. Equally, a citizen may hold dear to their heart certain principles and morals. But even zealous adherence to those principles and morals does not qualify as a religious belief capable of protection as a human right.
  6. [111]
    The High Court has considered the nature of religion. In Church of the New Faith v Commissioner for Pay-roll Tax (Vic):[54]
    1. Mason ACJ and Brennan J, considered that there are two qualifying criteria for a religion: first, belief in a supernatural being, thing or principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion;
    2. Wilson and Deane JJ considered that no single characteristic can be laid down as constituting a formularized legal criterion of whether a particular system of ideas and practices constitutes a religion, but the following criteria are helpful: that the particular collection of ideas and/or practices involves belief in the supernatural, i.e. a belief that reality extends beyond that which is capable of perception by the senses; that the ideas relate to man's nature and place in the universe and his relation to things supernatural; that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance; that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or groups; and that the adherents themselves see the collection of ideas and/or practices as constituting a religion;
    3. Murphy J stated that the categories of religion are not closed, but the following bodies are religious: any body which claims to be religious and whose beliefs or practices are a revival of, or resemble, earlier cults; any body which claims to be religious and to believe in a supernatural being or beings, whether physical and visible, a physical invisible god or spirit, or an abstract god or entity; any body which claims to be religious and offers a way to find meaning and purpose in life.[55]
  7. [112]
    In that case the High Court was considering whether the Church of New Faith was a religious institution and therefore exempt from pay-roll tax. Here, of course, the question is the meaning of the expression ‘religious belief’ in section 20 of the Human Rights Act 2019.
  8. [113]
    The approach taken by Wilson and Deane JJ, that there is no single characteristic, seems to be the preferable approach and accords with modern thinking. In the Macquarie Dictionary, for example, religion is defined as involving one or more of these four concepts:
    1. a quest for the values of an ideal life, including a theology or world view
    2. a particular system in which the quest for an ideal life has been embodied (e.g. the Christian, Muslim, Hindu or Buddhist religion);
    3. recognition on the part of human beings of a controlling superhuman power entitled to obedience, reverence and worship;
    4. the feeling or spiritual attitude of those recognising such a controlling power.[56]
  9. [114]
    Interestingly, the Macquarie Dictionary definition includes a fifth concept, namely “a point or matter of conscience, especially when zealously or obsessively observed: to make a religion of doing something”. That fifth concept, which appears as a contradistinction, rather illustrates the issue. A person might make a ‘religion’ of exercising daily but, in that context, what is being said is that the commitment to exercise approaches that of adherence to a religion.
  10. [115]
    Mostly religions have a number of adherents, sometimes millions of adherents. It is possible that only few people, or even only one person, could subscribe to a particular religion. But that would be unusual.
  11. [116]
    But Mr Drage’s 11-page letter does not profess any religious belief. The various matters mentioned in Mr Drage’s letter have these themes:
    1. there are risks or safety concerns with the vaccine;
    2. the vaccine is not proven to be efficacious;
    3. he is not required, and should not be required, to be vaccinated;
    4. vaccination is unnecessary and unreasonable.
  12. [117]
    Indeed, Mr Drage himself says that there has been no attempt by hospital management to sit down with him and discuss his views and his personal reasons for his “hesitancy” to receive a medical experiment and to discuss his options. None of that, it seems to me, has anything to do with religion.
  13. [118]
    The panel again rejected Mr Drage’s second exemption application. They did so on the basis that there was no third-party documentation supporting Mr Drage’s genuinely held religious belief. I have some misgivings about the idea that the only means by which Mr Drage could demonstrate a genuinely held religious belief is by tendering a letter from a minister of religion or other religious leader. In a particular case that step may be impractical or impossible. However, as explained, the problem was really deeper than that practical issue. Mr Drage was not in fact relying on a genuinely held religious belief as a basis for being exempted from vaccination.

The Third Application

  1. [119]
    By a “letter of response” dated 27 November 2021 Mr Drage made what was, in effect, a third application for exemption. His letter explained that he applied for exemption on all three grounds – medical contraindication, religious belief and other exempted circumstances.
  2. [120]
    Mr Drage’s letter of 27 November 2021 makes demands for information and demands proof of various matters. It is largely a counterattack, rather than a vehicle for providing any further information.
  3. [121]
    On 1 December 2021 the panel refused this third application on the basis that it had not revealed any information that fulfilled the requirements of the three exemption categories.
  4. [122]
    The third application did not alter the character of Mr Drage’s application for an exemption. He applied for the exemption because he held personal views about the facts associated with vaccination. He did not apply for an exemption because he had a genuinely held religious belief that prevented him from being vaccinated.
  5. [123]
    Even later, at the conclusion of the disciplinary proceedings, Mr Drage chose to swear an affidavit (discussed above). In that affidavit Mr Drage, in effect, calls on the hospital administration to provide him with evidence that the vaccines have been subjected to completed independent peer reviewed human clinical trials. He required that they confirm that there are no long-term effects of a Covid-19 vaccination that would be detrimental to the recipients’ long-term health.  Mr Drage also challenged the hospital administration to provide him with evidence that the Covid-19 vaccine would be effective to stop the transmission of the Covid-19 virus.[57] Mr Drage expressly said that he had a right to refuse,[58] and that he would only give his consent to be vaccinated if he received the required information, and if the evidence supplied was to his satisfaction.[59]
  6. [124]
    Certainly, the affidavit has a religious fervour to it. There are references that are evidently Christian. But, conspicuous by its absence from that affidavit, and indeed all of Mr Drage’s material, is an explanation of Mr Drage’s genuinely held religious beliefs and how those beliefs prevented him from agreeing to be vaccinated.

Breach of Natural Justice

  1. [125]
    Mr Drage argued that he had not been afforded natural justice by the respondents because he had not been afforded an opportunity to be heard.
  2. [126]
    At every point in the application process Mr Drage was afforded an opportunity to be heard. He made the submissions he wished to the panel. Those submissions included an 11-page letter which set out, in very great detail, Mr Drage’s objections to vaccination. The panel considered Mr Drage’s application for exemption, and the subsequent information that he provided.
  3. [127]
    It is true that Mr Drage asked to meet with the hospital administrators, but an oral hearing is not essential to the opportunity to be heard and can often be impractical.[60]
  4. [128]
    Of course, Mr Drage also received an opportunity to be heard during the course of the disciplinary process. Again, Mr Drage took up that opportunity.
  5. [129]
    Mr Drage was afforded a proper opportunity to be heard.

Unlawful Decision?

  1. [130]
    Mr Drage argues that the procedure adopted by the panel was unlawful. On this point I accept the respondents’ submissions to this effect:

“While the Exemption Panel did not refer the Applicant’s exemption application to the central team at the Department of Health, that does not make the Exemption Decision unlawful. The Exemption Panel followed a structured approach to decision making to ensure a fair and consistent outcome, and the conclusion that the Applicant’s application did not meet any criteria required for exemption was fair and reasonable. At no stage did the Applicant provide any supporting evidence to be assessed by the Department of Health.”

  1. [131]
    That last sentence alludes to the system in place which meant that, if an applicant adduced evidence of a genuine religious belief, then the panel would refer the application for exemption to the Department.
  2. [132]
    In making the decision the panel did have regard to Mr Drage’s human rights. That was the point of the exercise. Mr Drage was entitled to put material before the panel that demonstrated that he had a genuinely held religious belief that prevented him from being vaccinated. He did not do that. And, in my view, no such religious belief was established by the material that Mr Drage lodged.
  3. [133]
    One possible reason why Mr Drage’s application suffered from a lack of evidence appears to be because Mr Drage believed that he was not required to give evidence to support a belief. He maintained, and still maintains, that the requirement to give evidence of a genuinely held religious belief is unlawful. That is clear from these paragraphs of his submissions:
  1. 55.
    The Applicant has always submitted that the requirement to give evidence of a genuinely held religious belief was unlawful. The Applicants contention is supported by Regina v Secretary of State for Education and Employment & Ors (Respondents) ex parte Williamson (Applicant) & Ors [2005]. Lord Nicholls of Birkenhead stated at [22]: “When the genuineness of a claimant’s professed belief is an issue in the proceedings the court will inquire into and decide this issue as a question of fact. This is a limited inquiry.” Lord Nicholls quoted Iaccobucci J in the decision of the Supreme Court of Canada in Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1, 27, para 52. “Freedom of religion protects the subjective belief of an individual.” As Iaccobucci J also noted, at page 28, para 54,” religious belief is intensely personal and can easily vary from one individual to another. Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some, however surprising.”
  1. 56.
    Accordingly, the Respondents had no lawful power or right to question, qualify or require proof of the Applicants deeply and genuinely held religious beliefs. It follows that their refusal to consider the Applicants religious beliefs without this “proof” was unlawful and was a jurisdictional error of law.[61]
  1. [134]
    The passage relied on from the judgment of Lord Nicholls in R (on the application of Williamson and Others) v Secretary of State for Education and Employment[62] does not go so far as to say that a person need not give evidence that they possess a genuinely held religious belief. It merely notes that the inquiry into a person’s beliefs is a “limited inquiry”, appreciating that the assessment is merely whether the assertion of religious belief is made in good faith, ‘neither fictitious, nor capricious, and that it is not an artifice’[63] and that it is not an occasion for an assessment of the belief’s validity by some objective standard. In other words, the court was cautioning against the court subjecting a citizen’s religious beliefs to some objective standards. By their nature religious beliefs are subjective, and the inquiry is limited to assessing that there is a religious belief and that it is genuinely held.
  2. [135]
    Consequently, I reject the idea that Mr Drage was not obliged to adduce some evidence to establish that he genuinely held a religious belief that prevented him from being vaccinated. I do not think it was necessarily required of him that he produce a letter from a religious leader. But it was necessary to at least establish that he had a genuinely held a religious belief.[64] The requirement for someone to give evidence of a religious belief is not unlawful.[65]
  3. [136]
    In Johnston, Martin SJA considered what types of beliefs were caught and protected by section 20 of the Human Rights Act 2019.[66] The facts of Johnston also involved employees citing genuinely held religious beliefs to obtain an exemption from vaccination requirements. As to whether the employees held their religious beliefs, his Honour noted:

The evidence of the beliefs and conscience of many of the applicants was given by way of affidavits from those applicants. None of them were called for cross-examination. I am content, then, to accept that they held the beliefs which they claimed to hold. It does not necessarily follow, though, that each of the applicants has established that their beliefs bring them within s 20.[67]

  1. [137]
    His Honour then made the following observations:
    1. “The delineation between protected belief and belief which falls outside s 20 is not sharp”;[68]
    2. The section does not extend to beliefs that are based on an opinion or viewpoint;[69]
    3. Types of objections that were sufficient to bring the applications included: objections after realising “testing or development of the vaccine on aborted foetal material”; “an ‘ethical and moral’ objection to the use of kidney cell lines from aborted foetuses”; and an objection from “a vegan and expresses a moral opposition to any form of animal testing”;[70] and
    4. Objections based on the “mandatory or coercive nature of the Directions”[71] were not protected under the section.
  2. [138]
    As explained, Mr Drage’s exemption applications cite a variety of grounds, many clearly amounting to an opinion or viewpoint, or at least an opinion or viewpoint based on some facts as understood by Mr Drage. Mr Drage stated that he is a Catholic. That, no doubt, is his religion. But, as explained, he has objections to the vaccine based on his understanding of the risks or safety concerns with the vaccine, his view that the vaccine was of doubtful efficacy, and the fact that he was being compelled to be vaccinated. Mr Drage’s view was that the vaccine was an unnecessary and unreasonable intrusion on his rights. His objection was not a religious objection.
  3. [139]
    That finding is reinforced by the fact that Mr Drage sent The Vaccine Death Report to the hospital on two occasions. Mr Drage obviously regarded The Vaccine Death Report as factual. In his 11-page letter of 9 November 2021, for example, he:
    1. explains that he has “researched every avenue relating to the effects of COVID 19 and the outcomes of people who contract the virus”;
    2. says that has “researched the trial vaccination, how effective it is against COVID 19, the side effects of taking a trial drug such as Pfizer or Astra Zeneca”;
    3. says that he has “closely followed the scientific research conducted in relation to natural immunity”; and then
    4. under the heading “SCIENTIFIC”, refers the panel to The Vaccine Death Report for the panel’s “review”.[72]
  4. [140]
    Thus, a fair reading of Mr Drage’s application is that he possesses facts that demonstrate the lack of safety and lack of efficacy of the vaccine. His reliance on The Vaccine Death Report and the other facts[73] rather illustrates the point that he held a personal objection to being vaccinated rather than a religious objection.
  5. [141]
    For Mr Drage, Ms Stancliffe argued that the hospital treated Mr Drage’s objection as a religious objection. I am not persuaded that is true. When asked whether he was aware that Mr Drage made an application on religious grounds, Mr Calvert, the Chief Executive of the hospital, answered:

My recollection of – I mean, and it was three years ago … of the correspondence was … there were lots and lots of factors, I mean, he mentioned Nuremberg, Genesis, Acts in England but the gist of it was the lack of proof of safety of the vaccine and there hadn’t been enough time for its safety to be established in the trials even though it was TGA approved. That was my understanding that was the basis of his objection, that the vaccine wasn’t safe. There was mention of $10 million for this and $25 million for that if it all went wrong [sections omitted]

  1. [142]
    The panel held a meeting on 15 October 2021, where Mr Drage’s first application was considered. The meeting minutes show that it was concluded that “the panel has reviewed and considered the detailed information submitted on the basis of exceptional circumstances and it does not meet any of the criteria for exemption”.[74]  There is no mention of any objection on religious grounds. That reflects the absence of religion in Mr Drage’s first application.
  2. [143]
    At the panel’s meeting on 17 November 2021 the minutes record this:

Previously considered for a union and risk exemption. Exemption was denied.

Submitted 11-page letter requesting exemption for medical and religious reasons yet no evidence supporting information.

Recommendation:

Panel reviewed the letter and determined no medical contraindication to COVID19 vaccination

Does not meet any criteria required for religious exemption.

Recommended to receive COVID19 vaccination.[75] [emphasis added]

  1. [144]
    Then, on 1 December 2021 the panel rejected Mr Drage’s application on the grounds that he had not satisfied any of the three exemption categories.[76] In truth, Mr Drage’s application for exemption was difficult to categorise. At different points Mr Drage seemed to pursue all three possible exemptions, and the panel took a similarly wide approach to the scope of Mr Drage’s objection.

The Requirement of a Letter

  1. [145]
    One concern was that the HED12/21 regime set up by Queensland Health required an applicant for exemption to produce a letter from a medical practitioner in the case of an application for an exemption on the basis of a medical contraindication, and a letter from a religious leader in the case of a religious exemption. Such a letter may be difficult to obtain in certain circumstances. The respondents submit that the requirement of a letter was a reasonable tool to determine a genuinely held religious belief to determine exemptions “in a manner that balanced the rights of people holding genuinely held religious beliefs that prevented them from being vaccinated from those who might profess to hold a religious belief but who were in fact trying to avoid abiding by HED 12/21 and its lawful and reasonable requirements for other reasons”.[77]
  2. [146]
    In some circumstances, a letter may be appropriate to assess a religious belief. However, a religious belief can be expressed in a multitude of ways. For example, a belief may be expressed through oral traditions, such as indigenous Australian customary laws. Similarly, it would be difficult to demonstrate a moral opposition to animal testing by a vegan through a letter.[78] A letter is a blunt instrument in these circumstances.              
  3. [147]
    In any event, the requirement of a letter did not become decisive. The hospital continued to regard the third ground of exemption – ‘another exceptional circumstance’ - to be available to Mr Drage. Conceivably, Mr Drage may have convinced the panel or Queensland Health that he fell within that exemption because he had, say, a genuinely held religious or moral objection but no third-party letter. However, Mr Drage’s application was not, as he now contends, an application for a religious exemption. It was a muddled and challenging application that voiced objections to the vaccine based on his perception of the safety concerns, its doubtful efficacy, the compulsion and the intrusion on his rights. As I have explained, his objection was not a religious objection.

Requirements of the Substantive Limb

  1. [148]
    Section 58(1)(a) of the Human Rights Act 2019 provides that: “It is unlawful for a public entity … to act or make a decision in a way that is not compatible with human rights”. However, section 13 expressly provides that a law may subject a human right to reasonable limits. The limits on a human right may be reasonable and justifiable depending on a number of factors specified in section 13(2) of the Act:
    1. the nature of the human right;
    2. the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
    3. the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
    4. whether there are any less restrictive and reasonably available ways to achieve the purpose;
    5. the importance of the purpose of the limitation;
    6. the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
    7. the balance between the matters mentioned in paragraphs (e) and (f).
  2. [149]
    The expert evidence of Professor Griffin is that up to 11 September 2021 Australia had experienced three major waves of COVID-19. The first two waves (March-April 2020 and June-October 2020) were driven by the original or Wuhan strain of the virus. The third wave commenced in June 2021 and was driven by the Delta variant which was both more infectious as well as causative of more severe disease.[79] Each of the three waves of COVID-19 to September 2021 was associated with significant mortality.[80]
  3. [150]
    In that context, there are four facts that are established by Professor Griffin’s expert evidence.
  4. [151]
    The first is that the risk of COVID-19 infection in the community increased in June 2021[81] – which is shortly before HED12/21. Graphs showing the daily new confirmed COVID-19 cases and deaths per million people in Australia show a dramatic increase in both COVID-19 cases and deaths commencing in about June and July 2021.[82] The then prevalent Delta variant was, as explained, more infectious than preceding variants, and caused more severe disease.[83] 
  5. [152]
    The second is that the risk of infection for hospital, aged care, disability care or other health care workers was even greater,[84] and health care workers had been shown to be responsible for transmission of the infection to patients.[85] 
  6. [153]
    The third is that the consequences of an infection for those categories of workers was grave. Health care workers assumed the care of vulnerable patients who were likely to be at greater susceptibility to infection, and were subject to at a higher risk of severe health consequences and death from COVID-19.[86] There are many studies showing not only high rates of transmission in health care facilities, but also high mortality rates of hospital acquired cases.[87]
  7. [154]
    The fourth is that, at least to a significant degree, vaccination was effective to reduce infection and the ability to transmit.[88] The impact of vaccination is that very significant numbers of cases are estimated to have been prevented, not just reductions in severe disease and death.[89]
  8. [155]
    In those circumstances, given the degree and gravity of the risks to patients in particular, but also the risks to staff and the community, the respondents were entitled to take the view that the limitation on religious rights was justified. It may be accepted that the religious freedom of workers in health care facilities was of some importance, although, of course, what was being limited was not the workers’ right to have or adopt a particular religion but to demonstrate or practice the religion if that religion prohibited vaccination.[90] Importantly, though, the other side of the balancing exercise required proper consideration of the increased risk of severe health consequences and death from COVID-19. 
  9. [156]
    In the circumstances, the respondents were entitled to weigh the competing rights in the way they did. Section 13, after all, requires a proper weighing of the interference with the human right, here the right to practice one’s religion, as against the increased risks to patients and others if staff were not vaccinated. Section 13 requires that the limits on a human right be reasonable and justifiable. In my view, pursuant to that section, it was reasonable and justifiable for the hospital and Queensland Health to take the view that the precaution of having hospital staff vaccinated was appropriate to reduce the risks to patients, staff and the community.

The Absence of Religious Exemptions

  1. [157]
    Mr Drage argued that the court should take notice of the fact that no religious exemptions were granted under HED12/21.  In fact, six exemptions were granted but those exemptions turned out to be temporary. But the court is unable to draw any adverse conclusions from those facts. The small number of exemptions, and their temporary nature, may simply be due to the fact that there are no staff, or very few staff, whose held religious beliefs that opposed vaccination. After all, having regard to Professor Griffin’s evidence, there was a strong community interest in attaining what was, in effect, a herd immunity to COVID-19. 

Conclusion

  1. [158]
    For those reasons, the application is dismissed.

Footnotes

[1]  Mr Drage’s application is said to be pursuant to s 43 of the Act. Presumably he relies on that section because he seeks certiorari orders and an injunction. Nothing turns on it but the application can only succeed if he establishes a ground under s 20(2).

[2] Policy Position: Mandatory Vaccination for Queensland Health Employees (as at 6 September 2021), affidavit of Ms McGill KM-04 at page 21.

[3]  See the summary in the respondent’s submissions at [8], [9].

[4] Ibid at page 22. The document is labelled as “draft”, but the context suggests it was accepted as a final policy position.

[5]  Ibid, at page 23.

[6]  Professor Griffin relies on studies available at the time as well as subsequently. I have relied on his opinion to the extent that it relies on studies that were available as at September 2021.

[7]  Report of Professor Griffin at 7.

[8]  Ibid.

[9]  Group 1 was those Queensland Health employees who worked in residential aged care facilities or residential aged are within multipurpose facilities.

[10]  Briefing Note, Ms McGill’s affidavit at p 16 of the exhibits.

[11]  Mr Drage disputes that he made three applications. It does not matter whether he is regarded as having one application, which he supplemented on two occasions, or three applications.

[12]  For convenience I will refer to the respondents as ‘the hospital’.

[13]  Second Affidavit of Grant Paul Brown 15 November 2024, [13].  

[14]  If this reflected some adherence to religious values, it was not explained.

[15]  Paragraph 77 alleges that because of the respondents’ refusal to comply with Mr Drage’s demands, with supporting evidence, that gave rise to an agreement with various terms, including: “Legislation does not apply to me or any woman or man…”.

[16]  Transcripts from those proceedings were tendered as evidence in these proceedings.

[17]  See Drage v Gold Coast Health Services [2024] QSC 255.

[18]  In Mr Drage’s originating application for review, the grounds of review include: natural justice, procedures not observed, jurisdictional error, not authorised under the enactment, improper exercise of power, error of law, and failing to take a relevant consideration into account.

[19]  [2005] UKHL 15; [2005] 2 AC 246 at [15]–[17].

[20]  Examples are considered below.

[21]  The language used by Mr Drage’s submissions here is relevant. The use of the words “even if there were a vaccine that was definitely proven to be 100% effective” suggests that Mr Drage has vaccine hesitancy at least partly due to doubts about the efficacy of the vaccine. This issue is discussed below.

[22]  See the Australian Attorney-General’s Department discussion of this topic at https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/absolute-rights

[23]  See UN Human Rights Committee General Comment No 29.

[24]  Ibid.

[25]  See, Alison Stuart, Freedom of Religion and Gender Equality: Inclusive or Exclusive? Human Rights Law Review, Volume 10, Issue 3, September 2010, Pages 429–459

[26]  See the above discussion of Lord Nicholls judgment in R (on the application of Williamson) v Secretary of State for Education and Employment [2005] UKHL 15; [2005] 2 AC 246 at [15]–[17].

[27]  25 1996-VI; 24 EHRR 294

[28]  (2001) V Eur Court HR 449; this case and Sahin v Turkey are discussed by Carolyn Evans in The ‘Islamic Scarf’ in The European Court Of Human Rights [2006] MelbJlIntLaw 4; (2006) 7(1) Melbourne Journal of International Law 52.

[29]  9 41 EHRR 8.

[30]  (1978) 14 DR 234; see also Singh Bhinder v Canada, Human Rights Committee, Communication No 208/1986, UN Doc CCPR/C/37/D/208/1986 (28 November 1989) [2.1]–[2.7], [6.1]–[6.2] a claim from a Sikh who was denied permission to wear his turban due to occupational health and safety issues.

[31]  247 Application No 56975/09, Merits, 7 February 2011 (discussed by Dominic McGoldrick, Religion in the European Public Square and in European Public Life - Crucifixes in the Classroom? Human Rights Law Review 11:3 (2011) at page 494).

[32]  Council of Europe (CE), Parliamentary Assembly Res. 1464 (2005) on Women and Religion in Europe, 15 September 2005, Doc. 10670 at para. 2. This is quoted by Alison Stuart in her article Freedom of Religion and Gender Equality: Inclusive or Exclusive? Human Rights Law Review, Volume 10, Issue 3, September 2010, at page 430.

[33]  See Sylvie Langlaude’s book review of Samantha Knights, Freedom of Religion, Minorities and the Law at Human Rights Law Review, Volume 8, Issue 2, 2008, Pages 404–407.

[34]  For examples where courts have found the rights to freedom, thought, conscience, religion and belief have been limited, see Re J (an infant): B and B v Director General of Social Welfare [1996] 2 NZLR 134, 143-5; and Victorian Electoral Commission (Anti-Discrimination Exemption) [2009] VCAT 2191 [26]-[28], [92], [139]-[140], [181]-[182]. These authorities are cited and discussed in Jones and Billings, An Annotated Guide to the Human Rights Act 2019 (Qld) (LexisNexis, 2023), 204-5. Further discussion can be found in Blore, ‘Proportionality under the Human Rights Act 2019 (Qld): When Are the Factors in s 13(2) Necessary and Sufficient, and When Are They Not’ (2022) 45(2) Melbourne University Law Review 420.

[35]  [2024] QSC 2.

[36] Johnston, [75]-[77]. 

[37] Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129 at [288]; HJ v Independent Broad-based Anti-corruption Commission (2021) 64 VR 270.

[38]  (2021) 67 VR 301.

[39]  Kyrou, McLeish and Niall JJA.

[40]  See Stambe v Minister for Health (2019) 270 FCR 173 at [74], a case which was followed and applied by Martin SJA in Johnston v Carroll [2024] QSC 2 at [251].

[41] Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129 at [288].

[42]  Mr Drage prosecuted his application for exemption in three separate documents, and each was considered by the hospital.

[43]  See KM-04 at page 17 of the exhibits to Ms McGill’s affidavit.

[44]  Of course, one of the reasons why the Gold Coast and Queensland figures were low may well have been due to the various health measures put in place.

[45]  There is something a little myopic about this. The objective of HED12/21 was to protect patients, staff and the community.

[46]  This is a situation that was not present and is not said to be present, on the Gold Coast at the time.

[47]  There is, of course, a difference between “very low” (presumably 300 cases and 1 death) and the concept of “no community transmission for some time”.

[48]  It is not clear that this applies to staff in a hospital or healthcare facility.

[49]  (1945) 71 CLR 237.

[50]  That case was a constitutional case on the extent of the Commonwealth’s powers under the Constitution. It says nothing about the power of Queensland’s Parliament to enact a law (s 51A) that permits the Director-General to issue Health Employment Directives.

[51]  [2024] QSC 2 at [340]-[346].

[52]  See Johnston at [345], [346].

[53]  This is the Article of the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to the Human Rights Act 1998 (UK). It protects rights to freedom of thought, conscience and religion. In that sense it is wider than the claim here of religious freedom.

[54]  (1983) 154 CLR 120.

[55]  These summaries are taken from the headnote.

[56]  See Macquarie Concise Dictionary, 3rd ed, at 979.

[57]  See, in particular, paragraphs 43 – 46 of the affidavit (ex GPB2-10 to Mr Brown’s second affidavit).

[58]  See paragraph 78 of the affidavit which asserts that: “The Nuremberg Code outlawed all kinds of forced medical procedures and therapies, not just experimental procedures. Any medical procedure or therapy that you don't want to participate in, you have the full, free, and unprejudiced right to refuse. Period.”

[59]  See, for example, paragraphs 50, 54 and 79 of the affidavit.

[60]  See the discussion in Aronson, Groves & Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed, at [9.240]. Here, of course, the decision was being made by a panel and then possibly referred to Queensland Health. That makes a one-on-one conversation a little impractical.

[61]  Applicant submissions, [55]-[56].

[62]  [2005] UKHL 15; [2005] 2 AC 246 at [22].

[63]  Here His Lordship adopted the language of Iacobucci J in the decision of the Supreme Court of Canada in Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1 at [52].

[64]  As Wolf noted, without some proof, it might be impossible for an entity to determine whether an exemption applies: Wolf, Taliadoros and Gleeson, ‘A Panacea for Australia’s COVID-19 Crisis? Weighing Some Legal Implications of Mandatory Vaccination’ (2021) 28 Journal of Law and Medicine 993, at 999.

[65]  See Johnston (supra), [335].

[66]  This discussion concerned the substantive limb. The procedural limb requires decision-makers to properly consider whether a decision is compatible with a human right. Therefore, the discussion is relevant here.

[67] Johnston (supra), [335].

[68]  Ibid [342].

[69]  Ibid [343], citing Grainger v Nicholson plc [2010] ICR 360; [2010] 2 All ER 253.

[70]  Ibid [350]. Note that the Johnston applicants raised a variety of concerns including their conscientious beliefs. 

[71]  Ibid.

[72]  Mr Drage also refers the panel to an article in the Daily Mail.

[73]  I note that, in the course of the disciplinary proceedings, on 9 January 2022, Mr Drage relied on a further report of the ‘World Council for Health’.

[74]  Affidavit of Jeremy Wellwood 11 July 2024, exhibits, 72.

[75]  Affidavit of Jeremy Wellwood 11 July 2024, exhibits, 152-153.

[76]  The third exemption application was discussed by the panel on 1 December 2021. The minutes record discussion that: “Applicant requested all three exemption categories be considered for an exemption. The panel has not received any information to fulfil the guidelines requested for each exemption category”: Affidavit of Jeremy Wellwood 11 July 2024, exhibits, 167-7.

[77]  Respondents’ submissions at [57].

[78] Johnston (supra) [350].

[79]  Professor Griffin’s report at page 6. Professor Griffin discusses the events subsequent to September 2021, including the large Omicron wave commencing Australia wide in late November/early December 2021. However, the relevant focus here is the situation as at September 2021 when the vaccine was made mandatory for Queensland Health workers.

[80]  Professor Griffin’s report at page 7.

[81]  Professor Griffin’s report at page 7.

[82]  Professor Griffin’s report at page 8.

[83]  Ibid. See also Professor Griffin’s report at page 22.

[84]  Ibid. See also Professor Griffin’s report at page 21.

[85]  Professor Griffin’s report at page 21.

[86]  Professor Griffin’s report at pages 21, 22.

[87]  Professor Griffin’s report at page 22.

[88]  This issue is discussed in some detail by Professor Griffin at pages 23 to 32 of his report. Note that effectiveness of vaccines reduces over time, hence the need for boosters.

[89]  Professor Griffin’s report at page 32.

[90]   See the discussion of section 20 of the Human Rights Act 2019 above.

Close

Editorial Notes

  • Published Case Name:

    Drage v Gold Coast Hospital and Health Service

  • Shortened Case Name:

    Drage v Gold Coast Hospital and Health Service

  • MNC:

    [2025] QSC 22

  • Court:

    QSC

  • Judge(s):

    Freeburn J

  • Date:

    14 Feb 2025

  • Selected for Reporting:

    Editor's Note

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Bare v IBAC (2015) 48 VR 129
2 citations
Jump To
Cite 1 - (2015) 48 VR 129
Cite 2 - (2015) 48 VR 129
Church of the New Faith v Commissioner of Payroll Tax (Vic) (1983) 154 CLR 120
1 citation
Jump To
Cite 1 - (1983) 154 CLR 120
Drage v Gold Coast Hospital and Health Service [2024] QSC 255
1 citation
Jump To
Cite 1 - [2024] QSC 255
Grainger plc v Nicholson [2010] ICR 360
1 citation
Jump To
Cite 1 - [2010] ICR 360
HJ v Independent Broad-based Anti-Corruption Commission (2021) 64 VR 270
1 citation
Jump To
Cite 1 - (2021) 64 VR 270
Johnston v Commissioner of Police [2024] QSC 2
3 citations
Jump To
Cite 1 - [2024] QSC 2
Cite 2 - [2024] QSC 2
Cite 3 - [2024] QSC 2
R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246
3 citations
Jump To
Cite 1 - [2005] 2 AC 246
Cite 2 - [2005] 2 AC 246
Cite 3 - [2005] 2 AC 246
Thomson v Minogue (2021) 67 VR 301
1 citation
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Cite 1 - (2021) 67 VR 301
Victoria (at the relation of Dale and Others) v The Commonwealth and Others (1945) 71 CLR 237
1 citation
Jump To
Cite 1 - (1945) 71 CLR 237

Cases Citing

Case NameFull CitationFrequency
Drage v Gold Coast Hospital and Health Service [2025] QSC 57 3 citations
1

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