A cabinet handbook versus 120 years of federal practice.
The prime minister's lawyers are resisting independent senator Rex Patrick's demand for the public to see the medical advice behind national cabinet's decisions on the pandemic response.
Andrew Berger QC told the Administrative Appeals Tribunal on Wednesday it was irrelevant that there'd never been a national cabinet before.
He argued the paper trail to and from the committee of Australia's prime minister, premiers and chief ministers must be exempt from freedom of information laws.
Presiding officer Federal Court Justice Richard White is considering whether the national cabinet can remain exempt from the laws that are intended to support free and open government.
Justice White was allowed to see the terms of reference for the national cabinet that Scott Morrison set up last year.
He had asked how it could be determined the document was relevant if he couldn't read it, prompting its swift delivery to the courtroom for his eyes only.
But the crucial document remains off-limits for ordinary Australians, and Senator Patrick.
"That thing we know as a cabinet is not changeable just because of the desire of the prime minister of the day," said Geoffrey Watson SC, for Senator Patrick.
He said it was "preposterous" that, for example, Queensland could determine policy for the ACT - both being represented in the national cabinet.
Mr Watson also rejected the "expert" statements from prime minister's department Secretary Phil Gaetjens and First Assistant Secretary Leonie McGregor, saying it was opinion verging on "Dorothy Dixer".
The prime minister has long argued that national cabinet discussions, including medical advice on borders and vaccinations, must be kept secret.
Any paperwork marked "cabinet-in-confidence" is cloaked in tight secrecy, which currently shrouds all advice to the national cabinet, the emergency Australian Health Protection Principal Committee of top health officers, and the National COVID-19 Coordination Commission of business leaders.
Senator Patrick said it was arrogant of the prime minister to be "unilaterally and unlawfully wrapping a secrecy blanket" around such bodies.
The case continues.
