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

This case considered whether the jurisdiction of the Supreme Court under the Judicial Review Act 1991 was taken away where the issues raised also seemed to constitute an “industrial matter” under the Industrial Relations Act 2016 (for which the Industrial Relations Commission had jurisdiction). The Court of Appeal concluded that the Supreme Court’s jurisdiction had not been taken away, including because there was a “lack of consonance” between the jurisdiction of the Supreme Court and the Industrial Relations Commission.

Sofronoff P and Morrison and McMurdo JJA

14 December 2021

Background

In September and October of 2021, the Commissioner of Police, the Chief Executive of Hospital and Health Services, and the Acting Commissioner of the Ambulance Service, issued directions to their employees requiring them to have had doses of a COVID-19 vaccine by certain dates (“the vaccine mandates”). [1]. Those directions were made pursuant to powers provided by the establishing legislation of each of those services. [1]–[3].

The appellants are employees of each of those services who sought to judicially review the vaccine mandates, seeking relief pursuant to ss 20 and 43 Judicial Review Act 1991 (“JR Act”). [3]. However, before the substantive dispute had been heard, the respondents “took objection to the jurisdiction of the Supreme Court to determine these disputes”. [4]. The respondents argued that, by reason of s 450 Industrial Relations Act 2016 (“IR Act”), the Queensland Industrial Relations Commission had exclusive jurisdiction in relation to certain matters raised in the appellants’ (then applicants’) pleadings. [4]. The primary judge (Dalton J) agreed, striking out certain parts of the appellants’ applications, on the basis that the Supreme Court did not have jurisdiction in relation to them. [4].

In this appeal, the appellants argued that the primary judge had erred in concluding that the Supreme Court was deprived of jurisdiction under the JR Act by reason of the IR Act. [4]. The Court of Appeal unanimously agreed, allowing the appeal. The lead reasons were given by Sofronoff P, with additional reasons from McMurdo JA (with Morrison JA agreeing with each set of reasons). [57].

Why the Supreme Court was not deprived of jurisdiction under the Judicial Review Act 1991

The respondents argued that the dispute is an “industrial matter” under the IR Act, and that the effect of s 450 of that Act is that the Industrial Relations Commission has exclusive jurisdiction to determine the dispute. [10]. Section 450 of the IR Act provides:

“The original and appellate jurisdiction conferred on the commission by this Act or another Act is exclusive of the jurisdiction of the Supreme Court or another court or tribunal, unless otherwise prescribed under this Act or the other Act.”

The primary judge agreed with the respondents, and considered that the effect of s 450, combined with the fact that the dispute was an “industrial matter”, meant that the jurisdiction of the Supreme Court had been taken away. [13].

The Court of Appeal held, to the contrary, that the Supreme Court’s jurisdiction under the JR Act had not been taken away by s 450 of the IR Act. President Sofronoff observed that the Industrial Relations Commission’s functions, and the substantive law it would apply, were different – for instance, it would not be bound by the rules of evidence. [28]. Further, the Commission had “no jurisdiction to determine the lawfulness” of the vaccine mandates “pursuant to the Judicial Review Act”. Nor could the Supreme Court exercise “the statutory jurisdiction which the [IR Act] has conferred upon the Commission”. [30]. Accordingly, it followed that “whatever might be encompassed within the Commission’s exclusive jurisdiction, the present claim under the [JR Act] does not fall within its domain”. [30]. In other words, there was a “lack of consonance of the jurisdiction of the Commission and the Supreme Court”. [31]. The separate reasons of McMurdo JA also emphasised the disparity between the jurisdiction of the Supreme Court and the Commission under the JR and IR Acts respectively. [66]–[68].

However, there was another reason why the Supreme Court’s jurisdiction had not been taken away – because of ss 10 and 18 of the JR Act. [31]–[33]. Section 10 provides that the rights conferred by the JR Act are “in addition to any other rights that the person has to seek a review of the matter”, and s 18 provides that the Act “has effect despite any law in force at its commencement”. [6]–[7]. As Sofronoff P noted, at the commencement of the JR Act the predecessor to the IR Act, which included a provision in “materially identical terms” to s 450, was in force. [31]. Accordingly, both ss 10 and 18 operated to ensure the scope of the jurisdiction of the Supreme Court was “concurrent with other avenues of redress” and was not taken away by s 450 of the IR Act (or its predecessor). [31]–[33].

In summary, the JR Act “applies to the decisions with which this appeal is concerned although the disputed decisions in these appeals also give rise to industrial matters [under the IR Act]”. [50]. Accordingly, the appeal was allowed, and the orders of the primary judge were set aside. [56].

W Isdale