Queensland’s ‘unlawful’ Covid-19 vaccine mandate ruling just ‘tip of the iceberg’: experts

A landmark legal decision ‘vindicating’ dozens of Queensland paramedics and police officers over Covid-19 vaccination mandates is likely to be followed by other cases, experts say.

Director General of Queensland Health Dr John Wakefield. Picture: NCA NewsWire/Tertius Pickard

A landmark legal decision “vindicating” dozens of Queensland paramedics and police officers who took on the state government’s Covid-19 vaccine mandates is just the “tip of the iceberg” of litigation attempting to overthrow pandemic orders, experts say, with cases in similar jurisdictions likely to ride on the coat-tails of the successful action.

Calls for a royal commission into vaccination mandates during the pandemic were reignited on Tuesday after the Queensland ­Supreme Court found the state’s policy was “unlawful” for the frontline workers, meaning any disciplinary actions that relied on those policies are deemed invalid.

More than 70 staff had taken legal action against the state government in three separate applications, arguing the vaccine require­ments were incompatible with their human rights and they had been discriminated against “due to their political belief or activity”.

Judge Glenn Martin on Tuesday ruled Police Commissioner Katarina Carroll’s December 2021 directive for all staff to be vaccinated against Covid-19 was unlawful under the Human Rights Act.

He also ruled a mandatory vaccine order for paramedics, made by former Queensland Health director-general John Wakefield in January 2022, was “of no effect”.

Both Ms Carroll and Mr Wakefield are barred from taking any disciplinary action against the 74 complainants.

In his 115-page judgment, Justice Martin found Ms Carroll – who will finish as commissioner on Friday – failed to prove she “gave proper consideration” to the human rights of employees before making the directive.

“It follows that, by failing to give proper consideration, the making of each of those decisions was unlawful,” he wrote. “Despite the revocation of the QPS directions, a finding of unlawfulness is still available.”

Dr Wakefield, who quit his role with Queensland Health last June, submitted his direction to ambulance staff to be double-vaccinated was lawful because it was implied in all employment contracts that an employer “may give lawful and reasonable directions to employees”. But Justice Martin found “the Employee Covid-19 Vaccination Requirements Human Resources Policy is of no effect”.

Bond University associate law professor Wendy Bonython told The Australian the case could be an indication that successful litigation challenging pandemic orders will occur in comparable jurisdictions.

“This is very much the first of its kind, and I think this is the weather balloon,” she said.

“There are other cases, based on similar grounds, similarly challenging the legitimacy of directions given during the pandemic. This one is interesting because it is the first one to go through.”

Dr Bonython said there were unfair dismissal claims “bubbling away right across the board”.

“Once we get a few more decisions coming through, quite a few of those cases that have been filed might drop away because they may they be abandoned or they may be settled, depending on what the earlier wave of cases establishes,” she said. “This is the tip of the iceberg. There will be more of these cases to come.”

Queensland human rights barrister Hugh Carter said it was highly likely the government would appeal the decision, but he predicted nurses would be next in line to challenge the orders.

“The next question will be (is) the government going to appeal and I suspect that (it) may,” he said. “I don’t think it’s over by a long shot, but we know the court found there was an overreach by government in terms of coercing people into being vaccinated when they didn’t want to for genuine reason.”

The Albanese government’s inquiry into Australia’s response to the Covid-19 pandemic has been widely criticised for focusing only on the role of the commonwealth and prohibiting investigation of the state governments and their often extended lockdown periods.

One Nation leader Pauline Hanson, who has been pushing the government for a royal commission into the vaccine mandates and various other pandemic health orders, told The Australian the frontline workers who fought the orders had been “vindicated”.

“You can’t force someone to take a medical procedure, and many people had it against their will,” Senator Hanson said. “They were forced out of their jobs. Why were we forcing Australians to have it against their will?”

Senator Pauline Hanson. Picture: NCA NewsWire / Martin Ollman

She rejected Labor’s “piss weak” Covid-19 inquiry, saying a royal commission is the only way people will be “held responsible” for the pandemic orders.

Jack McGuire, director of Red Union which has supported professionals seeking to challenge vaccine mandates, said the Supreme Court decision “bodes well for our hundreds of human rights cases that we have on foot”.