NSW is resisting the disclosure of state cabinet documents used in the health minister's decision to create public health orders, a court has heard.
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The NSW Supreme Court will on Wednesday decide whether to uphold the claimed public interest immunity or order the state hand the documents to health workers trying to overturn a vaccine mandate.
The two documents concern a presentation and decision of the crisis policy committee of cabinet before the making of the relevant vaccine mandate.
Thomas Prince, acting for NSW, 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 NSW 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," Mr Prince said.
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 plaintiffs, said 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."
Dr Harkess also suggested the cabinet documents may show countervailing arguments to enforcing a vaccine mandate, given NSW government documents produced so far had failed to do so.
"(It's) inconceivable that a reasonable decision-maker would not have regard to at least one countervailing factor that militates against," he said.
Mr Prince submitted it was incorrect to suggest Mr Hazzard took no countervailing arguments into account.
A decision on the public interest immunity claim will be made on Wednesday by Justice Richard Cavanagh.
The full hearing concerning the vaccine mandates for particular workers in NSW will be heard on Thursday.
Australian Associated Press