12 February 2025
7 min read
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The recent case of Drage v Gold Coast Hospital and Health Service [2025] QSC 22 reinforces that the public sector should do more than simply ‘tick the box’ when considering human rights in decision making. It also confirms that employers can lawfully dismiss employees who refuse to comply with reasonable health directives, setting an important precedent for vaccination policies in high-risk sectors like healthcare.
But what about religious exemptions? The case sheds light on when such claims may succeed – and the level of evidence required.
Steven Drage, a former security officer at the Gold Coast Hospital, challenged Queensland Health’s mandatory COVID-19 vaccination directive, Health Employment Directive 12/21 (HED 12/21). His application for a religious exemption was denied on 3 occasions and he was eventually dismissed from employment in February 2022. Initially, he sought to challenge the decision in the Queensland Industrial Relations Commission (QIRC) by applying for reinstatement, but later discontinued his application and instead applied for judicial review in the Supreme Court.
Mr. Drage argued that his termination and the vaccination directive violated his right to freedom of religious beliefs under the Human Rights Act 2019 (HRA). Specifically, he contended that:
HED12/21 was issued under section 51A of the Hospital and Health Boards Act 2011 by the Director-General of Queensland Health. This directive required all health service staff, including existing and prospective employees working for Queensland Health or in a health service, to be vaccinated against COVID-19. The directive was based on evidence of risk, consideration of human rights, and included an exemptions process – such as allowing exemptions for genuinely held religious beliefs about the vaccination. A similar directive was published in Human Resources Policy B70, which applied to existing and prospective public sector employees working for Queensland Health.
Drage's application and evidence for exemption to receiving a COVID-19 vaccination was targeted towards vaccine safety, efficacy and personal objections rather than specific religious beliefs. An 11 page letter written by Drage in support of his exemption request had only one paragraph about religion. The court held that a genuinely held religious belief must be based on an identifiable doctrine or system, which Drage failed to establish in his application.
However, the court went on to consider whether HED 12/21 was unlawful under the HRA.
Section 13 of the HRA allows reasonable and justifiable limits on human rights under law, provided they are proportionate to a legitimate objective.
The court emphasised that while religious freedom is protected, it does not override public health and safety concerns, citing international legal precedents that freedom of belief is absolute, but the right to manifest religious beliefs can be restricted if it harms others (e.g. refusing vaccinations in a healthcare setting).
The court found that the HED 12/21 policy struck a balance between personal freedoms and the right to life and health of patients (section 16 of the HRA).
At [56] the court held:
“… the limits on religious rights imposed by HED12/21 are reasonable and justifiable. First, HED expressly preserved the rights of employees to have a genuinely held religious belief. Second, the limits on that right were relatively modest. The employee need only complete an application for exemption, albeit with some supporting evidence. Third, HED12/21 struck a balance between the employee’s right to maintain their religious beliefs and the risks to the patients, other employees and the community in having unvaccinated staff of hospitals and healthcare facilities.”
Further, given the increased risk of transmission by unvaccinated healthcare workers, mandating vaccinations was considered a reasonable and justifiable limitation.
Under section 58(1)(b) of the HRA, public entities must consider human rights when making decisions. Freeburn J found Dr. Wakefield, the Director-General of Queensland Health at the time, did properly consider human rights when approving HED12/21.
The directive explicitly acknowledged potential impacts on those with religious beliefs and conscientious objectors. It allowed exemption applications for religious beliefs and outlined alternative employment options (e.g. redeployment).
A detailed human rights assessment was conducted, weighing personal autonomy vs. public health risks. Queensland Health balanced competing rights using the factors in section 13 of the HRA, including:
Since the directive was justified under law and carefully considered human rights, it did not violate section 58 HRA.
Under section 58(1)(a) of the HRA, a public entity must not make a decision that is incompatible with human rights.
The court found that Drage’s exemption application was denied because he failed to provide evidence of a genuine religious belief that prevented him from being vaccinated. Instead, the court ruled that Drage’s objections were based on personal views regarding vaccine safety and government coercion, rather than religious beliefs.
The court emphasised that religious beliefs must be distinguished from personal moral objections or conspiracy theories, noting that a religious belief must be part of a broader system of faith, rather than a personal conviction against vaccination. Drage’s application focused on vaccine risks, with minimal reference to religious doctrine.
The requirement for supporting evidence was reasonable. However, Freeburn J ventured that it may not be as formal as the respondent argued, in requiring a letter from a religious leader. The substance of the application rather than the form of the application, was important. Further, the exemptions policy included a ‘catch-all’ exemption where another exceptional circumstance existed. This would allow an exemption where the application, or the evidence, did not quite meet the requirements for the other exemptions.
Drage argued that requiring proof of religious belief was unlawful. The court disagreed, stating that the government had the right to verify religious claims to prevent abuse of exemptions. Since Drage’s religious exemption claim was not substantiated, the decision to deny it did not violate human rights laws.
The court also found on human rights grounds that HED12/21 was lawful and justified under section 13 of the HRA because:
Queensland Health was found to have properly considered human rights before issuing the directive, and the court confirmed the denial of Drage’s religious exemption was lawful as he failed to establish a genuine religious belief preventing vaccination. There was no unlawful coercion or human rights violation.
This decision arrives almost a year to the day since the decision in Johnston & Ors v Carroll; Witthahn & Ors v Wakefield; Sutton & Ors v Carroll [2024] QSC 2 – a case which provided significant commentary on the HRA and mandatory vaccination, but due to findings on technical grounds, caused conjecture, misreporting and misinterpretation. Therefore, this current ruling is a welcome judgment on a COVID-19 vaccination policy of a public sector entity.
Although this is not the first case of its kind, the judgment reinforces the need for public sector decision makers to properly consider human rights when making decisions, beyond just a ‘box-ticking’ exercise, and to document this process.
The case further confirms that employers can lawfully dismiss employees for failing to comply with reasonable workplace health directives and sets an important precedent for mandatory vaccination policies in healthcare and other high-risk sectors. There is space for genuine religious exemptions to employment directives, however proving these requires clear, genuine evidence.
You can read the full case here. If you have any questions regarding this article, please get in touch with our team below.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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