So You Think It’s a Win?

My Non Lawyers Reading of the Queensland Supreme Court Ruling Vaccine Mandates were Unlawful.

Law without Justice is a wound without a cure

William Downey

It’s the death row pardon….two minutes too late…isn’t it ironic….…don’t think….a little toooooo ironic….yeah I really do think

Alanis Morrisette

Re

Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2

https://www.queenslandjudgments.com.au/caselaw/qsc/2024/2

Here I share my rough impression into the ruling of the Queensland Supreme Court re the covid vaccine mandated towards police and ambulance officers (esp. directions to police)

Please take these notes as you will with a grain of salt. Given I’m not a lawyer, it’s possible I may misinterpret a section about which I provide commentary. If one of our lawyer friends does take issue, please educate me respectfully with detail. I’d like you to have the final word. But if you are to have the final word, make your final word worth it. And please have it not accompanied by an invoice. Unlike the police commissioner, I don’t earn $650,000 per year.

I’ll focus on the QLD Human Rights Act 2019 viz a viz the mandates. I haven’t read other acts (e.g. the police service administration act), nor the judges ruling in respect of this which I passed over. I have some familiarity re the HRA as I sat on a psychiatric advisory panel asked to provide input into its construction. Initially my ideas were rejected. They were considered wanting to grant too many rights to the patient and not enough to psychiatry. I declined further personal involvement as I believe laws like these are used as swords against human rights more than as shield upholding them (i.e. what if I claim your freedom violates my human rights, what then do we do but regress to argue who is the greater victim?).

Some of my commentary will be on the specific text of the sections themselves and some more editorial provided with the opener “NB”.

I’ll pass over some sections, not out of avoidance of material contra any overarching point I wish to make, but rather because I didn’t think it was relevant. My own (bias?) position is that law, so to speak, does not exist. I believe that power is defined and limited by who can declare a state of emergency/exception and what they can do at the time with the power they have (which is also a function of the resistance against them). Any and all words on a page have no power. Consequently, parsing the words of a judge’s ruling in 2024 has as much bearing on the past (2020-2023) as it will on the future when power decides to do what it wilt. To those who say “but the law says”, I can only shake my head in baffled pity. Words on a page can do nothing in the world. Only people with power can achieve anything, USING words often post hoc. Surely this is obvious. Refer

https://rmachine.substack.com/p/the-once-and-forever-state-of-emergency

and refer also the HRA

https://www.legislation.qld.gov.au/view/html/inforce/current/act-2019-005

Anyway starting with….  

Sec 5

Firstly, what is at stake is

1)    The decision whether the directions WERE lawful (past tense)

2)    If the directions should be set aside (present tense), though note the directions were lifted anyway. Lifting the directions is THE relief available. As such, it is a relief which is not applicable to the fact of the past (the mandate itself) nor the present (the mandate is lifted)

NB later in sec 47 the judge refers to the act interpretation act (God help us there is a law about laws) to say powers exercised are time and context limited, though this is different to relief available to applicants in this case. The relief is the mandate being lifted. But it has already been lifted. So what now but to live life in the rear view mirror with a few jabs already in your arm and your endothelium co-opted into an mRNA factory of spike protein?  

Sec 7

The case was NOT a judicial review, it is if anything, a merits review (later the judge will argue its neither and some third species)

Sec 8

The decision is supervisory, not substitutionary. That is, the decision can only say whether the direction was rightly made with respect to the HRA, NOT the judge deciding what should have been done instead.

The directions for police were

1^st dose by 04/10/2021

2^nd dose by 17/12/2021

Booster one month after eligible as per ATAGI advice

Notional exceptions were granted on medical and “genuine” religious grounds or other “exceptional” circumstances.

12/12/2022 mandates lifted for QPS and 25/09/2023 for QAS

Sec 21-29

Basically, the judge’s ruling must take account of what was known at the time of the decision. Hindsight cannot make the police commissioners decision unlawful.  

Sec 65

Places the police commissioner under sect 58 of the HRA as the director of a public entity. It obligates the person to make decisions compatible with the HRA and to give consideration to the HRA (and limitations as set out in sec 13 of the HRA). The onus is on the one limiting human rights to defend their actions. Human rights are the default.

Sec 77

The commissioner needs take consideration of the BROAD meaning of sect 13 of the HRA on limitations of human rights, not the minutia.

Sec 79

Is interesting because it highlights authorities largely responsible for the position the commissioner took; the QLD Chief Health Officer (CHO), the Commonwealth Dept of Health AND the WHO and US National Centre for Immunization and Respiratory Disease.

The time of constructing the mandate follows from a deputy commissioner memorandum 23/08/2021 when delta had emerged. The justification followed from this with the deputy commissioners stating a mandate would be compatible with HRA

NB seems to me the US authority informed much of the memorandum and by extension the mandate. Together with the WHO, it indicates once again the indirect yet essential power foreign authorities have over Australian lives.  

The decision to construct the mandate was made between late Aug to first week of Sept 2021 (for direction number 12). Initial deadline dates of second injection were different in the initial meetings. This detail is trivial.

Sec 90 onwards

Makes clear the police commissioner sat very unprepared and clueless in the witness box. She had let her advisors be her brain and took their advice on faith (and their sources in turn such as the WHO ruled over their brain). It was also suggested that she made the direction (No12) BEFORE taking into account a formal human rights compatibility assessment (HRCA No1) as provided by Crown Law. So the commissioner breached Sec 80 of the HRA.

Sec 105

States that Deputy Commissioner Smith ALSO gave “unsatisfactory” evidence. The blind lead the blind.  

 Sec 107-108

Commissioner describes sitting around re table with the CHO “for many many months.”

NB How much does the influence of the CHO influences decisions across multiple domains of governance and public office. When my wife was arm locked, arrested and thrown in the back of a police wagon (and station for 3 hours) for violating lockdown, she was arrested in the name of a diktat made by the CHO. The police officers did this in full knowledge this was a mother with a crying 5 year old child imminently to be deprived of his primary attachment figure.  

Sec 110-111

suggests the CHO wasn’t keeping herself well informed, up to date and in turn wasn’t advising the commissioner as best she could.

NB this Chief Health Officer was later awarded a promotion to Governor of QLD. see how these things work.

Sec 112

The commissioner made the decision without ANY knowledge of the real rates of transmission within the force and between the force and the public. It was based on assumption and modelling of potential encounters.   

Sec 116

In consideration of the limitations of human right, one benefit was

“savings in indirect costs, such as loss of productivity and economic loss suffered as

a result of police officers and staff members contracting the virus and developing

COVID-19”

NB 1; this is the disgusting state of our ethical world. Economic utilitarianism is the ethical paradigm. Not even coarse pleasures are the goal. It’s the bottom line. Its line must stay up and go up. You are a unit of the economy. A similar ethical wasteland operated in the mind of the state premier when she decided allow certain sporting events and movie productions go ahead in spite of restriction. These were good for the economy she claimed.

NB 2; that said, the commissioner failed to make a quantified argument even of this value in limiting the HRA. Quantification as a value without procedural quantification! Even “modelling” (sec 115) was not ipso facto modelling. Its just a word they used to appear intelligent.  

Sec 123

Crown Law prepared a second Human Right Compatibility assessment (HRCA No2). Note that the commissioner did not properly inform herself of the first edition before the first direction (direction 12). This second edition was more an amendment referring to the first. It contains a few changes but explicitly advises to REFER to the first edition. The commissioner cannot claim to be properly informed or acting if only referring to HRCA No2. The commissioner issued the direction No14 after only reading the HRCA no 2 (on 14/12/2021)

Sec 126-127

BUT she made the decision to issue direction No 14 BEFORE she received the updated HRCA No2). Direction No 14 upheld the mandates. Whether direction No12 or 14, decisions were made in all cases before proper human rights assessment.  

Sec 132-133

The commissioner made direction No14 informed in part by WHO and FDA information and aware delta had been replaced by omicron.  

135-140

The judge comments that the directions were made without due consideration of the HRA. And so the decision was unlawful!

Section 138-140 reads

The “proper consideration” that needs to be given under s 58(1)(b) or s 58(5) engages a standard of consideration higher than that generally applicable at common law to taking into account relevant considerations. That consideration was not given. It follows that, by failing to give proper consideration, the making of each of those decisions was unlawful. Despite the revocation of the QPS Directions, a finding of unlawfulness is still available.”

NB. These are the sections of final vital significance. My own interpretation is that these directions were judged unlawful in virtue of the fact there is no evidence the commissioner properly considered human rights as per procedural obligations of assessment. The judge DOES NOT rule that mandates per se are incompatible with human rights. What this creates is a situation in which future tyrants can accomplish their goals by carefully being seen to consider human rights. If they provide an argument re why they are derogating rights and be seen to be making assessments on the derogation of rights before limiting them, they will succeed. The ruling is not a damning of a human rights violation so much as a calibration exercise for the managerial class. Surely this is obvious.

I encountered the same myself with respect to limitations of human rights re the mental health act. So long as the practitioner appears to be in good faith documenting why they are limiting the human rights of one who might be mentally ill or disordered, they can always then limit human rights. It’s a matter of being assiduous to procedure, not being categorically limited by a principle. I prosecuted the case hundreds of patients that they ought to be involuntarily detained and/or treated without ever losing a case.   

NB I’m now growing as bored with reading the document as I am reading “freedom movement” people claiming a win without reading the fine print (oh please give me strength, this thing is 115 pages!).

Section 143

Says authorities may consider international law re human rights.

NB But again and again we must realise no authority is obligated to submit to international statutes, declarations etc. Nuremberg is an historical moment, not a legal imperative.

Sec 149-171

Makes clear the PSAA grants the commissioner authority to administer the police force in broad terms (under sec 4.9). The judge DOES NOT state this excludes vaccine mandates. The judge DOES SAY that proportionality and other considerations must be brought to bear. these concepts are wooly and semi subjective.

Section 176

The judge comments that the commissioner did not give due consideration to the changing face of covid over time.

Section 180

I will quote this section in full because, in my humble opinion, I believe the judge makes an error here, or at least obfuscates….

It was not the case that the Commissioner proposed these directions on the basis that

………vaccination would “stop the transmission of COVID” or “stop the infection of police officers”. In the reasons she gave for making Direction No. 12 the Commissioner said

that:

 “The currently available scientific evidence is that vaccination against COVID-

19 helps to significantly reduce the risk of being infected and transmitting the

virus to others.”

Whether vaccination could achieve a significant reduction in risk was a matter for

debate among the experts, but the Commissioner did not make the Directions on the

basis that vaccination would stop transmission or infection”

NB; if the commissioner claimed vaccination would significantly reduce the risks of being infected, this IS A CLAIM the vaccine is transmission preventative. Obviously, no medication is perfectly effective in all persons and all times. Here the judge is very slippery.  

Section 266

Is the next when the police situation is considered (intervening section more about ambulance officer and Wakefield). The critical question here is whether directions limit human rights re the HRA

Once again the judge makes the point that the directions were unlawful only in virtue of not giving proper (procedural) consideration to the HRA. But the judge repeats

“  it does not follow from that finding that the directions were invalid. A finding of unlawfulness (coupled with an appropriate injunction) will have the same practical effect as a finding of invalidity”

Sec 277- 284

Further after quoting sec 13 of the HRA in full, the judge makes a kind of sarcastic remark about the applicants (complainant police officers) that their objections on human rights grounds were “imaginative”. The judge repeats that an authority is not obliged to consider each potential derogation of rights a-f in their minutia the way a judge would, but rather apply a “common sense” test.

Sec 292

Nonetheless the judge makes clear that vaccine refusers CANNOT rely on a discrimination argument on grounds of “political belief or activity” BECAUSE (so argues the judge) the direction was by the police commissioner and not the government. The police commissioner is not technically a political object.

NB; I cannot seriously credit that the judge is unaware the directions of the police commissioner is nested within the political context including yet not limited to the former chief health officer and her friend the former premier of Queensland. The judge, like many lawyers, is a positivist, not a theorist of political philosophy. But applying the “common sense” test, the judge has no excuse. OF COURSE the mandates had a political context.  Later the judge also closed down “conscientious objector argument”. Here I have some sympathy with the judge. Given all the religious institutions cowardly bent the knee to the state, vaccine refusers did not have a religious leg to stand on. Their institutions abandoned them.

Sec 300-307

The judge ruled against the “right to life” argument, stating that this right was not limited (notwithstanding many jab refusers believed in good faith their life was at risk and we do not know if Pfizer’s bell will toll for thee)

Sec 308-333

These section address the issue of coercion and protection from torture and cruel, inhuman and degrading treatment. The judge ruled that threat to loss of employment is coercion but (after citing many other cases) but offers no clear word except a final determination that free full informed consent was limited. The intervening sections are a jungle from which this ruling and cited cases may or may not enliven refusal in future. In its lack of clarity, my opinion is that it says nothing.

Sec 334-353

As previously, noted these sections present the arguments and the judges ruling that the complainants failed to argue the conscientious objection defence.

NB; If any future vaccine refusers wish to succeed by use of this argument, they might need either start their own religion or masculinize an existing one? Both are long shots

Sec 354-356

The judge ruled that the direction hat the provision relating to the right to take part in public life was NOT breached

Sec 357-372

The judge ruled that the right to privacy was NOT limited.

Sec 373-379

The judge ruled the right to security of person was NOT limited.

Sec 380-398 and 427-428

Relates to the expert witnesses. These sections would be of limited value in future cases with other pathogens and other expert witnesses. These sections are of interest only to those wishing to assess the value of these witnesses now and in future. Interestingly, the judge commented that the expert witnesses on both sides did not differ greatly in opinion, though one was commented to hold to conspiracy theories.

Sec 399-404

These sections relate specifically to omicron and the proposition that as it was the active variant at the time of the mandates, the mandates were ill considered (within the context of expert witnesses agreeing it to be a milder variant). These sections only really speak to the failure of the commissioner properly consider the evidence as it was evolving. These sections do not make in principle arguments around human rights.

Sec 405-414

These sections relate to the decisions around vaccine effectiveness. The reader might infer draconian measures were excessive re the milder omicron. On the other hand the commissioner was limited to vaccine effectiveness data based on older variants and omicron was concluded be more infectious.   

NB combining these two sections, I think it could be argued the judge is stating (via expert witness testimony) that the vaccine was effective and the commissioner acted in good faith, unaware and unable be aware how vaccine effectiveness might be different with omicron. 

Sec 428-460

Addresses the question when human rights can be limited    

Cutting to the chase, the judge makes clear that human rights can be limited, albeit balanced against the need for them to be limited (i.e. no categorical imperative) and the situation was

“complicated by the fact that these directions were given

in what was, by any measure, an emergency. It was further complicated by the fact

that, at the time of giving the directions, the knowledge available about the virus, its

variants, its virulence, and its transmissibility was limited and being added to on an

almost daily basis.”

NB that is to say if a future authority a) appears to keep abreast of updated knowledge as the establishment narrates it and b) can simultaneously claim they are doing their best in a state of emergency and the fog of war, that c) they can limit human rights with impunity. Once again., the police commissioner’s sin was procedural sloppiness and not getting her apparent epistemology right.

Sec 461-470

This final section poses the question “what orders should be made?”, to which the judge orders the mandates unlawful for the limited reasons as discussed above. The judge is at pain to say the ruling is not whether the mandates were invalid (i.e. a wrong or bad idea on moral or scientific grounds) but whether they were unlawful with regard to specific acts of positivistic law.

NB the judge did not and cannot ask the question what orders should have been made. We must leave that for the future and if/when disease X emerges. I for one am not optimistic, though will make a few final remarks. The first is that the past is unrecoverable. Secondly, states of emergency are game changers. Thirdly, not only is there no such thing as law, moreover to the extent there is law, it consists not of words on a page but rather consists only in law being law when a judge declares it is so. And law can only be effective in the world if it coupled to the power to make something happen at that point in time. You, dear reader, were powerless and lawless 2020-2024. In the future come disease X, unless and until you have law at the very moment it and human response to it strike you down, you will remain powerless and lawless. But that is just my opinion