The decision handed down in Queensland’s Supreme Court ruling vaccine mandates imposed on police and public health workers unlawful and ineffective was the right decision, but the approach adopted by the Court should give freedom-minded Australians pause for thought.

Regardless of anyone’s opinion about the vaccines developed in response to the Covid pandemic, many Australians reasonably felt that governments forcing citizens to take the vaccine in exchange for keeping their jobs offended basic ideas of human autonomy and human rights.

There were a number of Queensland police and public health workers who, despite such mandates, made a decision not to take Covid vaccinations and their employment was subsequently put in jeopardy.

The Queensland Supreme Court’s decision was seemingly a confirmation of the underlying human rights of Australians, but the legal reasoning on which the Court’s decision rests is far more precarious.

The case rested on a complaint under the state’s Human Rights Act, which was passed in 2019 to protect 23 essential human rights, including ‘freedom of conscience’, ’right to liberty’, and ‘protection from cruel, inhuman or degrading treatment’. Section 17 of the Act states it is a breach of human rights should Queenslanders be forced to undergo medical treatment without their ‘full, free and informed consent’.

In one of its first tests, the Act has failed to protect basic human rights. It appears it was a breach of the Human Rights Act that resulted in the quashing of the mandate. However, the decision was only reached because the Queensland Commissioner of Police failed to ‘give proper consideration to the relevant human right’ in creating the mandate, and the Director-General of the Department of Health did not have the power to do so under contract and employment law as not enough evidence was supplied.

Remarkably, the Court found the breach of the Human Rights Act was ‘reasonable in all circumstances’ and ‘demonstrably justified’.

As such, any ‘reasonable’ breach of human rights would be permissible if properly considered. This essentially removes the purported safety mechanisms for which the Human Rights Act was designed to provide. It also leaves it to the courts to decide what amounts to a reasonable breach and whether the court believes it has been ‘properly considered’.

Far from being a victory for human rights, the judgement shows the Court would have otherwise given the green light to this breach of freedom, which further illustrates how tenuous Australia’s hold is on its liberties.

With the operation of the legislative protection of human rights unclear, it is impossible to know where future courts would draw the line on alleged human rights breaches.

Leading human rights lawyer Peter Fam highlighted how this case demonstrates that government officials will be forced to ‘properly consider human rights implications in the future, at least where there is a human rights act which obligates them to do so’. But this would still allow the human rights breaches to occur.

What is clear is that this is not a solution to what many people consider a systemic failure of existing checks and balances against government overreach.

The encroachment on the liberties of Australians has led some people to believe that an introduction of a Bill of Rights or statutory protections of rights will protect Australians in the future. But it is unclear how grafting additional checks and balances onto the system will be any more effective than the protections that have been ignored up until now.

A judgment, years after the fact, vindicating the plaintiffs is a hollow victory – after all, justice delayed is justice denied. An official judicial record that a decision was unlawful fails to protect rights when they are being breached.

The rapid decision-making required during times of crisis illustrates that there needs to be an equally rapid form of clear accountability to keep legislators in check.

The best path forward for protecting our human rights in the future is to know what went wrong in the past.

Only through a full-scale, state and federal Royal Commission can we learn how the disastrous pandemic decisions, such as lockdowns, closures, social distancing rules and medical mandates were made, and what needs to be done in the future to ensure that similar breaches of human rights are not repeated.

Andrew Mathieson is a Research Assistant at the Institute of Public Affairs. 

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