Cabinet documents won’t be released in challenge to NSW vaccination rules, judge rules

A judge has delivered a blow to a group of citizens seeking to overturn a Covid-19 vaccine mandate for some NSW workers.

Cabinet documents that could have shed light on the NSW government’s decision to impose vaccination mandates for certain workers will not be handed over to a group challenging the state’s public health orders.

Natasha Henry and five other citizens have launched legal action against Health Minister Brad Hazzard in a bid to overturn rules requiring aged care workers to get the Covid-19 jab or face losing their job.

It is one of a number of lawsuits challenging vaccination mandates for industries including health, construction and education.

Ms Henry’s barrister John Harkess cited the Magna Carta in court on Wednesday as he argued the “absolutely unprecedented” vaccination rules had thrown the rights of the individual into peril.

Dr Harkess called for two confidential cabinet documents to be released given the “exceptional” circumstances of the case.

But Supreme Court Justice Richard Cavanagh was unmoved, labelling the group’s argument “misplaced” and ruling in Mr Hazzard’s favour.

A group is challenging rules requiring some essential workers to receive Covid-19 vaccinations. Picture: NCA NewsWire / Adam Yip

The two documents sought by Ms Henry’s group were a presentation delivered to the high-powered state crisis policy committee, on which Premier Gladys Berejiklian, Mr Hazzard and nine other ministers sit, and a decision of the same committee, both dated August 19.

Mr Hazzard claimed the documents were privileged under public interest immunity and should remain secret, but Ms Henry contended the importance of the case warranted their release.

The health minister’s barrister Rob Bhalla pointed to a High Court decision expressing doubt over whether “cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings”.

The ruling meant only “exceptional circumstances” could override the confidentiality of cabinet documents — and this case didn’t have them, Mr Bhalla argued.

The barrister said if the documents were released in this case, it would open the floodgates, stripping cabinet ministers of any confidence their discussions would remain confidential.

This would have a “profound and negative” effect on the system of government, he argued.

Brad Hazzard was the victor in a pre-hearing skirmish over cabinet documents. Picture: NCA NewsWire / David Swift

Dr Harkess said the vaccination mandates constituted “compulsory medical treatment” and historically such extraordinary powers had only ever been conferred by a majority of parliament. 

In this case, he said, Mr Hazzard had a general discretion to do whatever was necessary to protect public health.

“There is no mention of that discretion at all being used to implement a public vaccination program where everybody in a particular profession must submit, must yield to the needle, or else they will lose their job,” he said.

“That is the critical issue that makes this case so exceptional.

“The rights of the individual are at stake. These rights are significant.”

Supreme Court Justice Richard Cavanagh ruled the documents were indeed subject to public interest immunity and should stay confidential.

“No doubt circumstances existing in our society at the present time might be viewed as exceptional,” the judge said.

But, he went on, Ms Henry had failed to show why the case was so exceptional that the public interest in the proper administration of justice — in this case, making sure parties can access relevant evidence — outweighed the public interest in maintaining the confidentiality of cabinet documents.

Justice Cavanagh suggested Ms Henry and her compatriots had mistaken the issue as one of the public’s right to know.

“The plaintiff’s arguments are, really, that this is a case in which the public has a great interest and wants to know certain matters about the decision making process,” he said.

“That is not the correct test.”

A judge ruled against releasing cabinet documents ahead of the hearing on Thursday. Picture: NCA NewsWire / James Gourley

More than 15,000 people tuned in to hear the decision, which comes on the eve of a three-day hearing over the urgent legal suit.

That hearing will be presided over by Justice Robert Beech-Jones, who complained on Tuesday his office was being “inundated” with calls and emails about the matter.

Anti-vaccination groups had encouraged followers on social media to contact the judge and express their views.

But Justice Beech-Jones poured cold water on the campaigning effort, saying: “Please understand I will not read any of your emails or take any of your calls.”

The matter returns to court on Thursday.

Originally published as Cabinet documents won’t be released in challenge to NSW vaccination rules, judge rules