NSW cabinet vaccine docs to stay secret

·2-min read

NSW health workers trying to overturn a vaccine mandate have failed in a court bid to gain disclosure of state cabinet documents used in the health minister's decision to create public health orders.

A NSW Supreme Court judge said the documents could have some legitimate forensic purpose but it wasn't clear how access to them would necessarily assist the plaintiff's case.

Delivering his decision on Wednesday, Justice Richard Cavanagh said there was a balancing exercise in weighing the public interest in maintaining the confidentiality of cabinet documents and the competing public interest in the proper administration of justice.

"In my view, the plaintiff has not identified why the circumstances in this case are so exceptional that the public's interest in the proper administration of justice would outweigh the public interest in maintaining the confidentiality of cabinet documents."

Thomas Prince, acting for NSW, had cited a 1992 High Court ruling in which public interest immunity over cabinet documents was considered.

In that case, six of the court's seven justices expressed doubt that disclosure of state cabinet deliberations concerning current or controversial matters would ever be warranted in civil proceedings.

"That is precisely this case," Mr Prince told the Supreme Court on Tuesday.

"Without trying to be rhetorical, if cabinet documents in the present case - involving current and controversial matters on a matter of high government policy - are disclosable because of a challenge to government decision making, then there will be few, if any, cabinet documents which would not be disclosable."

Even if produced, the documents were of "limited probative value" and wouldn't say anything of cabinet's discussions, which Health Minister Brad Hazzard took into account when creating the public health order, Mr Prince said.

Jason Harkess, for the plaintiff, argued that the case was exceptional, given thousands had had their rights and livelihoods infringed in a way like never before.

"This has never ever happened before - perfectly healthy people are being told you can't go to work unless you've had a vaccination," he said.

"If ever there was to be an exception, this is it."

The full hearing concerning the vaccine mandates for particular workers in NSW will be heard on Thursday.

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