Johnston & Ors v Carroll (APM, Commissioner of the Queensland Police Service) & Anor; Ishiyama & Ors v Aitken & Ors; Hunt & Ors v Gerrard & Anor

The applicants were individuals and corporations affected by vaccination directions imposed by the Chief Health Officer during the COVID-19 pandemic. The applicants sought judicial review of those directions and declaratory relief, pointing to inconsistencies with the Human Rights Act in further support of their applications. The respondents argued these applications ought be dismissed because the basis for the claims (the directions and enabling provisions under the Public Health Act 2005 had since been revoked. Martin SJA dismissed the applications, finding (1) the directions were of a legislative character and therefore outside the scope of judicial review powers under s 20 of the Judicial Review Act 1991, and (2) none of the applicants had standing as the only advantage of declaratory relief would be “satisfaction of a statement by the Court validating their contentions of an historical wrong”, which was insufficient.

Martin SJA

27 February 2024

Background

During the COVID-19 pandemic, the Chief Health Officer made directions under s 362B of the amended Public Health Act 2005 (“the PHA”) to impose COVID-19 vaccination requirements on workers in “high-risk” settings. [1]–[4]. Later this was extended by further declaration to particular businesses. [6]–[7]. The applicants were affected by these declarations in their roles as police officers (Johnston application), teachers (Ishiyama application), or involved in the hospitality industry (Hunt application). [11].

The applicants sought orders quashing or setting aside those health directions under the PHA, Chapter 8 – Part 7A. [8]. The applicants relied on the inherent powers of the Supreme Court, a statutory order for review under the Judicial Review Act 1991 (“the JRA”), and the Human Rights Act 2019 (“the HRA”). [8], [21].

The respondents (being the Chief Health Officer, former Chief Health Officer, and Commissioner of the Queensland Police Service) then sought an order that these applications be dismissed pursuant to s 48 of the JRA. [11], [19].

Since the applications were filed, not only were the CHO’s directions revoked, but Part 7A of the PHA was removed. [9], [18]. The respondents argued the applicants therefore do not have standing. [10], [20]. Alternatively, even if the applicants had standing, any relief would have no practical effect as it would be resolving a now hypothetical issue. [20], [28].

Martin SJA accepted the respondents’ submissions and dismissed the primary applications [10], [75]–[80].

Judicial Review – s 20 JRA

A statutory order of review under s 20 of the JRA requires an applicant to be a person “aggrieved by a decision to which this Act applies”. [21]. Decisions to which the JRA apply are decisions “of an administrative character”, per s 4 of the JRA. [21].

While each of the decisions which lead to the public health were made under s 326B of the PHA, in Hunt v Gerrard [2022] QCA 263 the Court of Appeal held that the decisions to issue those directions were legislative rather than administrative character. [21]–[22]. Thus s 20 does not apply. [22].

Although Part 7A of the PHA had been removed, prosecutions for non-compliance during the relevant period are still possible. [27]. Both s 20 of the Acts Interpretation Act 1954 and s 498 of the PHA enabled such liability to extend beyond the PHA being repealed. [25]–[26].

The central question in this matter was therefore whether the applicants had standing to continue with their applications for declaratory relief.

Standing for declaratory relief – s 47 JRA

His Honour, citing Smethhurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177, and Unions NSW v New South Wales (2023) 407 ALR 277 (“Unions NSW”), explained the applicants must demonstrate a continuing “sufficient interest” despite the revocation of Part 7A and the directions, otherwise the applicants will not have standing. [43]–[47]. Standing will not be demonstrated where declaratory relief would not clarify an applicant’s legal rights or obligations, but would simply provide the “satisfaction of a statement by the Court validating their contentions of an historical wrong”. [48].

Martin SJA rejected the obiter of Ginnane J in Loielo v Giles (2020) 63 VR 1 that had a breach of the applicant’s Charter Rights been found, a declaratory relief would have been appropriate. [52]–[53]. His Honour considered Ginnane J’s comments were wrong in light of the principle in the High Court’s decision of Unions NSW. [53]. That is, where the only advantage to the applicant is some sense of vindication by the Court, this is not enough to establish standing. [53].

In the present case, none of the applicants were shown to have standing.

In respect of the Johnston application, no criminal charges or disciplinary proceedings had been initiated against those applicants. [65]. There was also no evidence that those applicants could be exposed to “past non-compliance” consequences, as they each had undertaken leave or were relocated to other work. [66].

Meanwhile, there was evidence some of the Ishiyama applicants had been suspended with pay for non-compliance with a separate direction by the Education Department. [67]. That direction was not challenged in these proceedings. [67]. Of the remaining Ishiyama applicants, these were privately employed individuals who argued a finding of non-compliance would result in breaches of their contracts. [68]. His Honour found those employees had failed to demonstrate the employers, who were not parties to the proceedings, have made decisions which can be impugned. [69].

Finally, eight of the 12 Hunt applicants were companies and could not rely on human rights inconsistencies under the HRA, as such rights are only available to human beings (s 11 HRA). [71]. The companies did not have standing to bring proceedings in relation to directions affecting company directors, who were not parties to this proceeding. [72]–[73]. The remaining individual applicants also did not have standing as they failed to demonstrate how declaratory relief could clarify their legal interests. [74].

Conclusion

Finding the applicants did not have standing, Martin SJA dismissed the applications for declaratory relief. [75]–[80].

H Edwards of Counsel