The legality of Queensland’s ban on puberty blockers has been questioned after it was revealed the state government undertook 21 minutes of internal consultation at the same time as a press conference announcing the decision.
According to one administrative law expert, an alleged failure to conduct “genuine” consultation could lead to it being overturned in a legal challenge launched this week.
Under section 48 of the Hospital and Health Boards Act 2011, the director general of Queensland Health must consult with a service “in developing a health service directive” that applies to it.
According to a response by the health minister, Tim Nicholls, to a parliamentary question on notice, that consultation took place from about 10am on 28 January, finishing at 10.21am.
The minister announced the government’s decision to implement the directive at a press conference that started at 10.06am.
Nicholls announced “an immediate pause on new public patients receiving hormone therapy”.
“The government has made these four decisions that I’m announcing today [including the directive],” he said, about 11 minutes into the 24-minute press conference.
The directive bans public facilities from prescribing stage one or stage two hormone therapies. It applies only to transgender children; puberty blockers can still be prescribed for precocious puberty and other conditions.
Prof Anthony Cassimatis, the deputy director of the centre for public, international and comparative law at the University of Queensland, said similar decisions had been quashed in the past for lack of genuine consultation because the time involved was so short.
He pointed to the case of Carrascalao v Minister for Immigration and Border Protection. In that case, the decision maker cancelled a visa after about four hours’ consideration. “The federal court didn’t like that,” Cassimatis said. “They thought that that can’t have been genuine consideration to have happened so quickly.”
The circumstances relating to the health directive “would appear to be even more dramatic than that”, he said.
“Parliament has required the decision maker to consider [the advice provided during the consultation] and that needs to be consideration in some meaningful sense,” Cassimatis said.
The health minister revealed the consultation timeline on 1 May, in a response to a parliamentary question on notice by Greens MP Michael Berkman.
“Prior to issuing the directive, the chief executive formally consulted with all hospital and health service chief executives,” Nicholls said in his response.
“A meeting was scheduled from 10:00am on Tuesday 28 January 2025 and I am advised that it concluded at 10:21am. The health service directive was shared, read through in detail and discussed collectively at the meeting.”
According to documents obtained by Guardian Australia under right to information laws, the minister was sent a version of a press release announcing the decision the previous day, Monday 27 January, at 4.34pm.
Berkman said the government
had clearly made its decision before the 21-minute consultation was finished.
A legal challenge against the decision by the mother of a transgender child was launched this week by the LGBTI Legal Service.
Matilda Alexander, a spokesperson for the service, said the timing of the consultation meeting would become part of its lawsuit.
A spokesperson for Nicholls said: “As the matter is the subject of a legal action currently in the supreme court, it is inappropriate to comment further.”
The director general of health was also asked for comment, and responded: “As the matter is the subject of a legal action currently in the supreme court, it is inappropriate to comment further.”
According to his statement of reasons filed in the case, the Queensland health director general, David Rosengren, made two “minor refinements” to the directive as a result of the consultation.
The directive was issued at 11.07am on January 28 and published online.
The ban on puberty blockers will remain in effect until the completion of a study by psychiatrist Dr Ruth Vine. It is due to be completed by 30 November.
