A nurse has failed in a Supreme Court bid to overturn her suspension over vaccination requirements by challenging its “constitutional validity”.
The woman, who worked as a dental assistant in the Sunshine Coast Hospital and Health Service (SCHHS), had asked for a judicial review of a January 2022 decision to suspend her after she failed to comply with mandatory vaccination directives during the Covid pandemic.
In her application, the nurse said the decision by Queensland Health to suspend her was “an unlawful exercise of executive power without judicial oversight”.
“The decision was not subject to any judicial determination on its constitutional validity,” she claimed.
But in a decision by Justice Paul Smith published on January 19 following a hearing in September last year, he dismissed the claim and ordered the nurse pay Queensland Health’s costs of $5000.
The judgement states that the nurse – who Sunshine Coast News has chosen not to name – received a letter from SCHHS’s HR director in January 2022 suspending for failing to comply with vaccination requirements.
The suspension was initially on full pay, before becoming without pay from May that year.
Under the Public Service Act in force at the time, the nurse was required to have at least the first dose of a Covid vaccine by September 30, 2021, and a second dose by October 31, 2021.
“The applicant on the evidence did not comply with this requirement and has reasons for that. Whether justifiable or not is not to the point at this point in time,” the judgement says.
In September 2021 the nurse applied for an exemption from vaccination, which was refused on in November 2021. She then filed proceedings with the Queensland Industrial Relations Commission (QIRC) in February 2022 appealing the exemption decision, which were discontinued in September 2023.
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More proceedings appealing the suspension without pay were filed with the QIRC in May 2022, but in February 2023 the decision was confirmed.
“Under the repealed Public Service Act, there was power given by the state parliament to the chief executive of a department to suspend someone from duty if they reasonably believed they were liable for discipline under a disciplinary law,” the judgement says.
On the question of any constitutional issues raised by the suspension, Justice Smith said there was no express right to “freedom from arbitrary exclusion from lawful employment and freedom from executive overreach”.
“It seems to me, in this case, on the material I have read, that the respondent was exercising administrative power when he made the impugned decision,” his ruling states.
The court also refused to grant an extension of time to bring the application, which was filed in June 2025.
“There is some explanation for the delay up until 2023 because of the QIRC proceedings, and I do accept it would have taken … some time to research the constitutional issues,” the judgement says.
“Having said that, the delay was from 2023 through to June 2025, which is a significant period.”
The document says the nurse returned to her role in February 2024.
