Johnston & Ors v Commissioner of Police & Anor; Witthahn & Ors v Chief Executive of Hospital and Health Services and Director General of Queensland Health & Ors

This case concerned an application for judicial review of COVID-19 vaccination directions made by Commissioners of Police and Queensland Ambulance Services and the Chief Executive of Hospital and Health Services. The central issue was whether the Supreme Court had jurisdiction to hear the matter in light of the “exclusive jurisdiction” provisions of the Industrial Relations Act 2016. Dalton J held that, while the matters fell within the Industrial Relations Act 2016, this did not exclude the Supreme Court’s supervisory jurisdiction in respect of the matters. Her Honour found the Supreme Court therefore has jurisdiction to hear an applicant for injunctive relief claimed pursuant to Pt 5 of the Judicial Review Act 1991. However, the Court did not have supervisory jurisdiction over the claim to set aside the vaccination directions, made pursuant to Pt 3 of the Judicial Review Act 1991. Part 3 is in effect a statutory rather than judicial review provision and thus is excluded by the Industrial Relations Act 2016. The parts of the claim made under Pt 3 of the Judicial Review Act 1991 were therefore struck out.

Dalton J

26 October 2021

Background

Seven police officers, one nurse, and 12 ambulance officers applied for statutory review of the decision of the Commissioner of Police, the Chief Executive of Hospital and Health Services, and the Commissioner of Queensland Ambulance Services to issue directions requiring all police and some frontline staff to receive COVID-19 vaccinations by specified dates and provide evidence of having done so if requested. [1]–[4].

The central question in this case was whether the Supreme Court had jurisdiction to hear the matters in light of the exclusive jurisdiction of the Industrial Relations Commission pursuant to ss 448–450 Industrial Relations Act 2016 (IRA). Section 9 of that Act defines industrial matters, over which the Industrial Relations Commission has exclusive jurisdiction:

“(1)    An industrial matter is a matter that affects or relates to—

(a) work done or to be done; or

(b) the privileges, rights or functions of—

(i) employers or employees; or

(ii) persons who have been, or propose to be, or who may become, employers of employees; or

(c) a matter the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute.

(2) However, a matter is not an industrial matter if it is the subject of a proceeding for—

(a) an indictable offence; or

(b) a public service appeal.

(3) Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1.”

The applicants argued that the claimed relief was within the Supreme Court’s supervisory jurisdiction and therefore not excluded by the IRA.

Decision of the Supreme Court

Dalton J held the vaccination directions were matters within the meaning of s 9 of the IRA, but the claim for relief made pursuant to Pt 5 Judicial Review Act 1991 (JRA) remained within the jurisdiction of the Supreme Court.

Her Honour determined, and it was not in contest by the parties, that the exclusive jurisdiction provision of the IRA did not exclude the supervisory jurisdiction of the Supreme Court as this would be constitutionally invalid. [17]–[19]. In particular, Pt 5 of the JRA regarding prerogative orders and injunctions also “preserves the Court’s supervisory jurisdiction, although it modifies the form of the application for prerogative relief, and the form which that relief takes”. [20]. The applicants’ claim for injunctive relief is pursuant to Pt 5 of the JRA and so is within the jurisdiction of the Supreme Court. [24].

Meanwhile, the applicants’ claim that the directions of the Commissioners and Chief Executive of Hospital be set aside was a claim pursuant to Pt 3 of the JRA. [24]. “Part 3, by sections 20, 21 and 22, gives this Court a statutory jurisdiction to review decisions made under an enactment at the behest of a person who is aggrieved by such a decision”. [22]. That Part, Her Honour found, was a statutory review power (as opposed to the court’s supervisory jurisdiction) which was excluded by ss 448–450 of the IRA. [26].

Her Honour noted the relevant test for the Court’s supervisory jurisdiction is “whether or not the question sought to be adjudicated in this Court is one which goes to excess of jurisdiction and thus cannot be excluded from this Court’s supervisory jurisdiction”. [42]. Her Honour found there was no support for the assertion that relief under Pt 3 of the JRA could be within the Supreme Court’s supervisory jurisdiction, though overlap in those jurisdictions may arise. [42], [58]. Ultimately, the claim that the directions should be set aside did “not amount to jurisdictional error, but simply amount to matters supporting a statutory order for review under Pt 3 of the JRA, the Court does not have jurisdiction because the provisions at ss 448–450 of the IRA take away the Court’s jurisdiction pursuant to Pt 3 of the JRA. [26]. Consequently, the parts of the amended applications relating to Pt 3 of the JRA were struck out. [58].

A Hughes of Counsel