Drage v Gold Coast Hospital and Health Service

The applicant was employed by the State of Queensland at Gold Coast Hospital and Health Service. In 2021, he made multiple applications for an exemption from a requirement that he be vaccinated against COVID-19, including on purported religious grounds. His applications for exemption were refused and he ultimately sought judicial review of that decision on the basis that the decision made was contrary to his rights to freedom of religion or belief under the Human Rights Act 2019. His Honour, Freeburn J, applying the Human Rights Act 2019, considered whether the directive itself had been issued in a manner compatible with human rights and then whether the decisions made about the applicant specifically had been compatible with human rights and with the terms of the directive. His Honour concluded that in issuing the directive proper consideration had been given to human rights, and that the decision made concerning the applicant had been compatible with his rights.

Freeburn J

14 February 2025

The applicant was employed by the State of Queensland at Gold Coast Hospital and Health Service. [1]. In September 2021, the Director-General of Queensland Health issued a directive requiring the mandatory vaccination of Queensland Health employees (including the applicant) in response to the COVID-19 pandemic. [5]–[20].

The directive provided for exemptions from the vaccination requirements on three grounds:

(a)where an existing employee has a recognised medical contraindication (that is, a reason why the vaccine was a particular risk to their health);

(b)where an existing employee has a genuinely held religious belief; and

(c)where another exceptional circumstance exists. [22]

The applicant made three unsuccessful applications for exemption. [23]. Following a disciplinary process, the applicant’s employment was terminated. [24]–[32]. The applicant applied for judicial review of the decision to refuse his exemption applications. The applicant argued that the health directive was unlawful insofar as it restricted his freedom to have or to adopt a religion or belief of his choice, as provided for by s 20(1)(a) Human Rights Act 2019, and to manifest that religion or belief. [36]–[45]. 

Referring to R (on the application of Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246, [15]–[17], his Honour noted that there is a recognised distinction between the right to hold a belief, which is absolute, and the right to manifest a belief, which is qualified. [42]–[43]. While s 20 Human Rights Act 2019 does not permit restrictions on the freedom to have or adopt a religion or belief, it does contemplate that the laws of a community may restrain the demonstration of a religion or belief. [39]–[41].

Whether the health directive was a lawful restriction on the right to manifest religious or other beliefs

The applicant took the “rather extreme” position that his right to hold and manifest his beliefs was absolute and non-derogable. [46].

The lawfulness or otherwise of a restriction on the freedom to manifest a religious belief turns on s 13 Human Rights Act 2019, which allows for human rights to be subjected to reasonable and justifiable limits, having regard to factors including those listed in the section. [53]–[54]. His Honour held that the restrictions imposed by the directive were reasonable and justified having regard to the health risks the directive sought to curtail. [56]–[59]. 

Proper consideration of human rights and compatibility of Queensland Health’s decision concerning the applicant with his human rights

The “procedural limb” in s 58(1)(b) Human Rights Act 2019 provides that: “It is unlawful for a public entity … in making a decision, to fail to give proper consideration to a human right relevant to the decision.”

Citing the decision of Martin SJA in Johnston v Commissioner of Police [2024] QSC 2, his Honour concluded that the health directive had been issued after detailed thought by the relevant decisionmaker in that the evidence showed he had understood the rights which would be affected, identified the countervailing interests and appropriately balanced the relevant considerations. [63]–[80]. The directive therefore satisfied the procedural limb in s 58(1)(b) Human Rights Act 2019. [81].

Section 58(1)(a) is concerned with the substantive way the health directive was put into effect and administered. [82]. Summarising the applicant’s applications for exemption, his Honour concluded that they were vague and imprecise, and were on their face concerned with the efficacy and safety of the mandated vaccines rather than any restriction of his religious freedom. [82]–[105].

In reaching this conclusion, his Honour considered what constitutes a religious belief. He noted that while religious belief is personal, it is also true that:

“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 a zealous adherence to those principles and morals does not qualify as a religious belief capable of protection as a human right.” [110].

The applicant was given the opportunity to put forward evidence of a religious belief which would justify his objection to being vaccinated and he did not do so; it seems this was in part because he did not think he could be required to provide evidence of such a belief and that the assertion of such a belief was sufficient. [133]–[144]. The evidence indicates not a religious belief, but rather a strongly held belief/opinion about the safety of the vaccine based on purported facts. [136]–[140].

The restrictions on human rights imposed by the directive were reasonable in the circumstances, as were the exemptions and the process for applying for them; the applicant failed to articulate a religious belief which would qualify for an exemption from the directive. [147]–[156]. 

Disposition

The argument that the applicant had not received natural justice was dealt with briefly – he was given sufficient opportunity to present his case to the relevant decisionmakers. [125]–[129].  The application was dismissed.

B Wilson of Counsel