Federal Court of Australia

Patrick v Attorney-General (Cth) [2024] FCA 268

File number:

SAD 40 of 2023

Judgment of:

CHARLESWORTH J

Date of judgment:

21 March 2024

Catchwords:

ADMINISTRATIVE LAW – appeal from decision of the Information Commissioner made on review under Pt VII of the Freedom of Information Act 1982 (Cth) – request for access to documents under s 15(2) of the Act –Attorney-General identifying one document falling within scope of the request – document at that time meeting the description of an “official document of a Minister” – request refused on the basis that the document was exempt, including because it was a Cabinet document – application for review to Information Commissioner – change of person occupying office of Attorney-General three times and change of Government whilst review pending – Commissioner finding the document was not in the possession of the new incumbent of the office – Commissioner varying the original decision and refusing access on that basis – whether Commissioner erred in applying the definition of an “official document of a Minister” at the time of the decision on review – consideration of the interaction between the Act and the Archives Act 1983 (Cth) – consideration of rights and duties arising under the Act, including a duty of decision-makers not to interfere with requesting party’s right to have request for access determined according to law – content of the duty depending on the facts of the case

Legislation:

Acts Interpretation Act 1901 (Cth) ss 15AA, 20

Archives Act 1983 (Cth) ss 3C, 24, 27, 30

Freedom of Information Act 1982 (Cth) ss 3, 4, 7, 11, 11A, 13, 15, 16, 17, 24, 24AA, 24A, 31A, 34, 42, 54N, 55, 55A, 55DA, 55K, 55R, 55U, 55V, 56, 56A,

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 303

P Herzfeld and T Prince, Interpretation (2nd ed, Thomson Reuters (Professional) Australia Limited, 2020)

Cases cited:

‘ACY’ and Attorney-General (Freedom of Information) [2023] AICmr 7 (22 February 2023)

Attorney-General v Jonathan Cape Ltd (1976) QB 752

Beesley v Australian Federal Police (2001) 111 FCR 1

Carr v Western Australia (2007) 232 CLR 138

Chu v Telstra Corp Ltd (2005) 147 FCR 505

Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619

Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1

Kline v Official Secretary to the Governor General (2013) 249 CLR 645

Lobo v Department of Immigration and Citizenship (2010) 116 ALD 639

Momcilovic v The Queen (2011) 245 CLR 1

Patrick v Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719

Phillip Morris Ltd and Treasurer [2013] AICmr 88 (13 December 2023)

Rex Patrick and Attorney-General [2023] AICmr 9 (28 February 2023)

Sankey v Whitlam (1978) 142 CLR 1

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

Taylor v Owners – Strata Plan 11564 (2014) 253 CLR 531

Thomas and Prime Minister [2014] AICmr 18 (20 February 2014)

Waubra Foundation v Commissioner of Australian Charities and Not-for-Profits Commission (2017) 107 ATR 60

Division:

General Division

Registry:

South Australia

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

179

Date of last submissions:

Applicant:  23 June 2023

Respondent:  19 June 2023

Date of hearing:

26 June 2023

Counsel for the Applicant:

Mr S McDonald SC with Ms A Sapienza

Solicitor for the Applicant:

Maurice Blackburn

Counsel for the Respondent:

Mr G Hill SC with Mr N Swan

Solicitor for the Respondent:

Corrs Chambers Westgarth

ORDERS

SAD 40 of 2023

BETWEEN:

REX LYALL PATRICK

Applicant

AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Respondent

order made by:

CHARLESWORTH J

DATE OF ORDER:

21 MARCH 2024

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The decision of the Information Commissioner made under Pt VII of the Freedom of Information Act 1982 (Cth) is set aside.

3.    The applicant’s application for review of the decision of the Attorney-General made on 4 June 2020 be remitted to the Information Commissioner for determination according to law.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHARLESWORTH J

1    Mr Rex Patrick is a former Senator. On 3 February 2020, Mr Patrick made a request for access to a document under the Freedom of Information Act 1982 (Cth) (FOI Act). As revised and transferred, his application sought access to documents described as follows:

Any correspondence, briefing materials and advice sent by the Attorney-General’s Department to the Department of Prime Minister and Cabinet that contain advice in relation to the administration of the Community Sport Infrastructure Grant Program by the Former Minister for Sport the Hon Bridget McKenzie.

2    Mr Patrick was informed that there was one document that fell within the scope of that request. I will refer to it simply as the Document.

3    It is common ground that at the time of Mr Patrick’s request under the FOI Act (FOI request), the Document fell within the statutory definition of anofficial document of the Minister because (among other things) it was then in the possession of the Attorney-General, Mr Christian Porter. The revised request was received by Mr Porter on 3 April 2020. I will refer to that as the Request Date. Mr Porter refused access to the Document on the ground that it was subject to two exemptions under the FOI Act relating to Cabinet documents (s 34) and legal professional privilege (s 42). I will refer to that as the Refusal Decision.

4    Mr Patrick lodged an application for review of the Refusal Decision with the Australian Information Commissioner. My references to the Commissioner may from time to time include a reference to the delegate of the Commissioner who dealt with that review application.

5    During the Commissioner’s review, Mr Porter ceased to occupy the office of Attorney-General. The office was then occupied by Senator the Hon Michalia Cash (Senator Cash), then for a short time by Senator the Hon Katy Gallagher (Senator Gallagher) and later, on a change of Government, by the Hon Mark Dreyfus KC, MP (Mr Dreyfus). Senator Gallagher had no dealings with the Commissioner. Senator Cash and Mr Dreyfus in turn told the Commissioner that the Document was not in their possession.

6    The Commissioner concluded that at the time of the decision on review, the Document was not in the possession of the Attorney-General and so did not meet the description of an “official document of the Minister” within the meaning of the FOI Act. I will refer to that as the IC Decision.

7    This is an appeal from the IC Decision.

8    Among other things, Mr Patrick contends that the Commissioner erred by asking herself whether the Document was an official document of a Minister as at the date of the IC Decision, rather than at the Request Date. He contends that his FOI request gave rise to a legal obligation in Mr Porter to preserve and maintain the Document, and a legal entitlement in persons subsequently occupying the office of Attorney-General to demand the production of the Document to them at least for the purpose of discharging obligations under the FOI Act relating to it. He contends that the IC Decision proceeds from a misconstruction of the FOI Act in either or both of those respects. In addition, he contends that the Commissioner’s misconstruction of the FOI Act caused her to misconstrue the scope of her discretionary powers to demand the delivery of the Document to her for the purposes of the review.

9    I am satisfied that the Commissioner proceeded on an erroneous construction of the FOI Act and that the IC Decision must accordingly be set aside. The application for review of the Refusal Decision will be remitted to the Commissioner for determination according to law.

10    These reasons consider scenarios in which a person responsible for performing functions or exercising powers under the FOI Act engage in acts such as the wilful destruction of documents subject to a pending request. That has been done solely for the purpose of testing the outcomes on the parties’ competing construction of the statute. I emphasise from the outset that there has been no suggestion of any wrongdoing of that or any other kind by persons responsible for dealing with Mr Patrick’s request.

The FOI Act

11    The express objects of the FOI Act are to give the Australian community access to information held by the Government of the Commonwealth by requiring agencies to publish information and providing a right of access to documents:  FOI Act, s 3. Section 3(2) of the FOI Act confirms that the Parliament intends, by those objects, to promote Australia’s representative democracy by contributing to (relevantly) the increase of scrutiny, discussion, comment and review of the Government’s activities. Parliament also intends, by those objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource:  FOI Act, s 3(3).

12    Section 15(1) of the FOI Act relevantly provides:

Persons may request access

(1)    Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.

13    The word “agency” means (relevantly) a Department, and so includes the Attorney-General’s Department.

14    The requirements for a request are prescribed in s 15(2). They include a requirement that the request provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or Minister, to identify it:  FOI Act, s 15(2)(b).

15    Section 11 is entitled “Right of access”. It provides:

(1)    Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a)    a document of an agency, other than an exempt document; or

(b)    an official document of a Minister, other than an exempt document.

(2)    Subject to this Act, a person’s right of access is not affected by:

(a)    any reasons the person gives for seeking access; or

(b)    the agency’s or Minister’s belief as to what are his or her reasons for seeking access.

16    A document is a “document of an agency” if it is in the possession of the agency, whether created in the agency or received in the agency:  FOI Act, s 4.

17    The phrase “official document of a Minister” assumes importance on this appeal. It is defined in s 4 to mean:

… a document that is in the possession of a Minister, or that is in the possession of the Minister concerned, as the case requires, in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State and, for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from his or her possession if he or she is entitled to access to the document and the document is not a document of an agency.

18    As can be seen, the phrases “document of an agency” and “official document of a Minister” are mutually exclusive:  a document may fall within one of the definitions, but not both. Where a request is made to an agency it may be transferred in whole or in part to a Minister in circumstances prescribed in s 16 of the FOI Act.

19    Section 15(4) provides that where a person has directed a request to an agency, and the request is one that should have been directed to (relevantly) a Minister, it is the duty of the agency to take reasonable steps to assist the person to direct the request to the appropriate Minister.

20    Section 11A of the FOI Act provides:

11A    Access to documents on request

Scope

(1)    This section applies if:

(a)    a request is made by a person, in accordance with subsection 15(2), to an agency or Minister for access to:

(i)    a document of the agency; or

(ii)    an official document of the Minister; and

(b)    any charge that, under the regulations, is required to be paid before access is given has been paid.

(2)    This section applies subject to this Act.

Mandatory access—general rule

(3)    The agency or Minister must give the person access to the document in accordance with this Act, subject to this section.

Exemptions and conditional exemptions

(4)    The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.

(5)    The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.

(6)    Despite subsection (5), the agency or Minister is not required to give access to the document at a particular time if, at that time, the document is both:

(a)    a conditionally exempt document; and

(b)    an exempt document:

(i)    under Division 2 of Part IV (exemptions); or

(ii)    within the meaning of paragraph (b) or (c) of the definition of exempt document in subsection 4(1).

21    The definition of “exempt document” in s 4(1) is as follows:

(a)    a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B); or

(b)    a document in respect of which, by virtue of section 7, an agency, person or body is exempt from the operation of this Act; or

(c)    an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State.

22    It is apparent that the “Mandatory access – general rule” in s 11A(3) applies only to requests that are made in accordance with s 15(2), including the requirement that the document be described in a way that enables it to be identified by the receiving agency or Minister. The rule is otherwise subject not only to the exemptions and conditional exemptions mentioned in s 11A(4) to (6), but to the whole of the FOI Act:  see s 11A(2). If a document falls within the statutory definition of an “an exempt document, then access to the document is not required to be given because of s 11A(4):  FOI Act, s 31A, item 1. Relevantly, a document is an exempt document if it is a cabinet document, or if it is subject to legal professional privilege:  FOI Act, s 34, 42.

23    Whether a document is exempt for the purposes of Pt IV of the FOI Act depends on the characterisation of the document itself and, in most instances, the characterisation of the information contained in it. The exemptions asserted by Mr Porter for example required the Document to be characterised as one recording or evidencing a communication in respect of which a claim of legal professional privilege could be maintained (s 42), or one that may be characterised as a Cabinet document, having regard inter alia to the reason for which it was brought into existence (s 34). However, a document may also be exempt for reasons unrelated to the content of the information contained in it or the reason for the document coming into existence, including (for example) because it is a document in respect of which an agency or person is exempt from the operation the FOI Act because of s 7.

24    There are numerous additional bases upon which access to a document may be refused, irrespective of the information contained in it. For example, s 24 permits a Minister to refuse to give access to a document subject to a request if a “practical refusal reason” exists in relation to it. The conditions for a “practical refusal reason” to exist are specified in s 24AA. They do not depend upon the content of the requested document, but rather upon the nature of the work involved in processing the request and the extent to which it would unreasonably divert resources, or upon the request not identifying the requested document in accordance with s 15(2)(b). As those provisions show, a request for access may be refused irrespective of whether there might otherwise exist a mandatory obligation to disclose it under s 11A(3).

25    The obligation to grant access to a document is also subject to s 24A. It provides:

24A    Requests may be refused if documents cannot be found, do not exist or have not been received

Document lost or non-existent

(1)    An agency or Minister may refuse a request for access to a document if:

(a)    all reasonable steps have been taken to find the document; and

(b)    the agency or Minister is satisfied that the document:

(i)    is in the agency’s or Minister’s possession but cannot be found; or

(ii)    does not exist.

26    It is common ground that s 24A is to be applied by reference to facts and circumstances existing at the time that a decision on the request is made. Its purpose and operation will be discussed in due course.

27    Part VII of the FOI Act sets up a system for review of “IC reviewable decisions by the Commissioner. An application for review of such a decision may be made under s 54N. On a review, the Commissioner may obtain any information from any person and make any inquiries that he or she considers appropriate:  FOI Act, s 55(2)(d).

28    Section 55A of the FOI Act provides that the parties to the review are (relevantly) the review applicant and the Minister to whom the request was made. Section 55DA provides that the Minister who made the reviewable decision must use his or her best endeavours to assist the Commissioner to make a decision in relation to the review.

29    Division 8 of Pt VII confers information gathering powers on the Commissioner. Subject to some exceptions, it applies if the Commissioner has reason to believe that a person has information or a document relevant to a review. Under s 55R(3), the Commissioner may, by written notice, require a person to produce to her a document specified in the notice. It is a criminal offence to fail to comply with a requirement specified in the notice:  FOI Act, s 55R(5). Section 55U imposes conditions on the Commissioner’s power to require production of a document that is claimed to be exempt under (relevantly) s 34 of the FOI Act (Cabinet documents).

30    In cases where there has been an initial refusal to grant access to a document under s 24A, the Commissioner on review may require the agency or Minister concerned to conduct further searches for the document:  FOI Act, s 55V.

31    After undertaking a review, the Commissioner must make a decision in writing affirming or varying the reviewable decision, or setting aside the reviewable decision and making a decision in substitution for it:  FOI Act, s 55K. The Commissioner’s decision has the same effect as a decision of the Minister who made the decision under review:  FOI Act, s 55K(3).

The Refusal Decision

32    Mr Patrick’s request was initially directed to the Department. The Department advised Mr Patrick that it did not hold the document and so refused access under s 24A of the FOI Act. Mr Patrick’s request was later revised to make it clear that it was directed in part to the Attorney-General’s Office (AGO). That part of the revised request was then transferred to the AGO under s 16(1) of the FOI Act. In these reasons the AGO is to be understood as the office that communicated with Mr Patrick and the Commissioner in relation to the request on behalf of persons who held the office of Attorney-General from time to time.

33    On 14 April 2020 Mr Patrick received notification of the Refusal Decision from the AGO. The reasons for the Refusal Decision stated that the Document had been identified as falling within the request, but it would be withheld from release because it fell within the exemptions in s 34 and s 42 of the FOI Act. At that time, there was no suggestion that the Document was not an “official document of a Minister”, and it may reasonably be inferred that the decision was based on the content of information contained in the Document and the reason for it first coming into existence. No other basis for refusal was put forward.

The Commissioner’s review

34    Mr Patrick lodged his application for review of the Refusal Decision with the Commissioner on 4 June 2020. The AGO (on behalf of Mr Porter) provided submissions to the Commissioner in relation to the claimed exemptions. By letter dated 23 December 2020, the Commissioner advised the review parties that it would consider whether to issue a notice under s 55U of the FOI Act requiring the Document to be produced before proceeding to a decision.

35    The application for review remained unresolved for more than two years. As identified earlier, the person holding the office of the Attorney-General changed three times over that period. The Commissioner did not request or require that Mr Porter provide a copy of the Document before he ceased to hold the office.

36    Following the appointment of Senator Cash as Attorney-General, the Commissioner was advised by the AGO that the Document was not in the possession of the then Attorney-General. The Commissioner sought further information from the AGO to establish whether Senator Cash was in possession of the Document, including as to whether she was entitled to access it, and invited further submissions.

37    By letter dated 6 October 2021, the Chief Executive Officer of the AGO (on behalf of Senator Cash) provided details of inquiries that had been made about the Document, including as to whether the “former Attorney-General’s Office” had transferred the Document to the “current Attorney-General’s Office”. The letter stated the Document “was not within the possession, constructive or otherwise, of the Attorney-General or her office”. The letter contained no information as to whether there had been any request or demand for production of the Document from Mr Porter.

38    The Commissioner then sought clarification about whether the Document had been transferred to the National Archives, being archives maintained under the Archives Act 1983 (Cth). The National Archives advised that Mr Porter had transferred no documents to it.

39    After an exchange of further submissions, the Commissioner wrote to the parties stating a preliminary view that s 24A of the FOI Act applied because the Attorney-General had taken all reasonable steps to locate the Document, but it could not be found. Mr Patrick’s response included a request that the Commissioner issue notices under s 55R of the FOI Act for the production of the Document, directed to various persons, including Mr Porter, as well as assertions that the Commissioner’s contemplated course involved a misconstruction of the FOI Act.

40    On 1 June 2022 there was a general election and a change of Government. Mr Dreyfus was appointed to the office of Attorney-General and became the new respondent to the review. The Commissioner was told that the AGO had been unable to locate any relevant documents or record of transfer of documents from the former Attorney-General, and nor had the document been transferred to the National Archives.

Reasons for the IC decision

41    The written reasons for the IC Decision are published as Rex Patrick and Attorney-General [2023] AICmr 9 (28 February 2023). The outcome of the review is summarised in the opening paragraphs:

1.    Under s 55K of the Freedom of Information Act 1982 (FOI Act), I vary the decision made by an authorised officer in the Office of the Attorney-General on 14 April 2020, which refused access to the document at issue on the basis that the document was exempt from disclosure under the Cabinet documents exemption (s 34) and the legal professional privilege exemption (s 42) of the FOI Act.

2.    Following changes to the person occupying the role of ‘Attorney-General’ I am satisfied that the current Attorney-General does not have possession of any document at issue. This means that, for the purposes of this Information Commissioner (IC) review, any relevant document is no longer an ‘official document of the Minister’ to which the mandatory access rule in s 11A(3) of the FOI Act applies.

42    The Commissioner referred to the “mandatory access rule” in s 11A(3) of the FOI Act. She said that whether the Document was in the possession of Mr Dreyfus and therefore an “official document of a Minister” was determinative of the application of that rule. She identified the issue for consideration as whether the Document “remains an official document of a Minister to which access can be provided”. The Commissioner said that the issue to be determined was whether the document was in the possession of the current Attorney-General.

43    The Commissioner referred to three earlier administrative decisions in which it was found that a document that was not in the possession of a newly appointed Minister (after a change of Government) no longer met the description of an official document of the Minister, notwithstanding that it might previously have met that description:  Phillip Morris Ltd and Treasurer [2013] AICmr 88 (13 December 2023), Thomas and Prime Minister [2014] AICmr 18 (20 February 2014) and ‘ACY’ and Attorney-General (Freedom of Information) [2023] AICmr 7 (22 February 2023).

44    The Commissioner went on to explain why she was satisfied that the Document was not in the possession of the current Attorney-General, Mr Dreyfus. The Commissioner referred to enquiries that had been made of Senator Cash, Mr Dreyfus (each through the AGO), the Department and the National Archives. On the basis of those enquiries, the Commissioner concluded that the Document had not been transferred to or received by any of them. She said (at [23]) that she was satisfied that “staff within the Office of the current Attorney-General were unable to locate the document at issue in this IC review and that staff undertook all reasonable searches to locate any relevant documents within the scope of the FOI request and no relevant documents were identified”.

45    The Commissioner observed that under s 55K of the FOI Act she could only make a decision on the review that could be made by the current Attorney-General. She said that she could not make a decision to release a document that was not in the current Attorney-General’s possession. The Commissioner said that that issue was also relevant to a request made by Mr Patrick for the exercise of powers under 55R of the FOI Act. On that topic, she went on to say:

27.    During the IC review process in their submissions of 15 March 2022, the applicant requested that notices should be issued under s 55R of the FOAct to certain individuals who could be in possession of the document at issue in this IC review, including the Secretary of the Attorney-Generals Department, the Secretary of Prime Minister and Cabinet (PMC), former Attorney-General Porter and former Prime Minister Morrison and for the Attorney-General to seek access as they may be entitled. No notice was issued during the IC review process.

28.    There would be no utility in seeking production of the document as that does not overcome the requirement that the document be an official document of a Minister to which the access provision in s11A applies. The FOAct does not make provision for or contemplate, the transfer by the OAIC of possession of a document at issue to the current Attorney-General.

(footnotes omitted)

46    The Tribunal’s reasons make no reference to s 24A of the FOI Act.

Issues arising on the appeal

47    The amended notice of appeal dated 3 May 2023 (ANOA) contains three grounds of appeal. The third ground was not pressed.

48    Ground 1 is to the effect that the Commissioner erred in law in holding that the Document was not an “official document of the Minister”.

49    Ground 2 is to the effect that the Commissioner erred in law in declining to exercise the powers conferred under s 55R and/or 55U of the FOI Act on the basis that there would be no utility in their exercise.

50    Ground 1 has two aspects, expressed at 1(a) and 1(b) of the ANOA.

51    Ground 1(a) is to the effect that the question of whether a document is an “official document of the Minister” is to be determined on the basis of a factual state of affairs existing at the time that FOI request is made (or alternatively some earlier date preceding the decision on a Commissioner’s review), and not on the basis of a state of affairs existing at the time of the decision on review.

52    Mr Patrick’s principle contention is that at the time of his FOI request, the Document was in Mr Porter’s actual possession and there is no dispute that at that time it met the description of an official document of a Minister. Its status as an official document of a Minister could not be revisited by reference to facts existing at a later time, so it was submitted.

53    Ground 1(a) gives rise to a question of law articulated as follows:

1.    On the proper construction of the FOI Act, what is the relevant date by reference to which the question of whether a document is ‘an official document of a Minister’ is to be assessed and, in the event of an Information Commissioner review (‘IC Review’), is the assessment to be undertaken again by reference to a different date?

54    Ground 1(b) is advanced in the alternative. It is to the effect that the Document falls within the definition of an “official document of the Minister” because it had passed from the custody of the Minister and it was a document which the succeeding Minister (Senator Cash and later Senator Gallager and Mr Dreyfus) was “entitled to access” because:

(1)    Mr Porter was under an implied obligation (arising from the FOI Act) to take such steps that were necessary to retain custody of the Document for the purposes of the Commissioner’s review and not to deal with the Document in a way that would frustrate provision of access to it; and

(2)    the current Attorney-General, Mr Dreyfus is entitled to have the Document produced to him in accordance with the general law and in any event upon request.

55    Ground 1(b) is said to give rise to three questions of law, articulated as follows:

2.    Does the FOI Act impose an implied obligation upon a Minister (including an outgoing Minister) in relation to a document that the Minister has identified as an official document of the Minister:

a.    which falls within the terms of a request made under s 11 of the FOI Act that has not been finally determined; and/or

b.    which is the subject of an IC Review under Part VII of the FOI Act,

to:

c.    take such steps as are necessary to retain in the custody of the Minister (from time to time) for the purpose of the IC Review; and/or

d.    not deal with the document in such a way as to frustrate provision of access to the document in accordance with the FOI Act or to frustrate the appeal?

5.    Is the current Minister entitled to access to a document that has been transferred out of the custody of the Commonwealth by a former Minister in breach of any of the duties or obligations described in questions 2, 3 and 4 above?

6    On the proper construction of the FOI Act, can information as to whether the document was in a former Minister’s possession, and the circumstances in which it came to be in their possession, be relevant to the determination of the question of whether the document is an official document of the Minister?

56    There is a dispute as to whether those questions truly arise, the Attorney-General submitting that they are hypothetical questions that need not be answered in order to determine if the Commissioner erred in the manner alleged in the grounds. That is not a valid criticism. In determining whether the Commissioner erred in the manner alleged, it is necessary to consider whether the Commissioner asked herself the wrong question and, relatedly, whether she misconstrued the FOI Act. As will become apparent, resolution of the grounds of appeal has required the Court to answer the second and fifth questions of law. I do not accept that they are hypothetical or merely advisory in nature.

57    The parties’ submissions focussed principally on the question of law before turning to the grounds, and I will do the same.

the questions of law

58    The Commissioner addressed the question of whether the Document was an “official document of a Minister” by enquiring into a state of affairs as they existed at the time of her own decision, rather than a state of affairs existing at the time of the FOI request, so asking herself whether the document was in the possession of Mr Dreyfus as at 28 February 2023, rather than in the actual or deemed possession of Mr Porter as at 3 April 2020. Whether the Commissioner acted on a misconception of the law in that respect depends on the answer to the first question of law which in my view is partially informed by the answers to questions 2 and 5.

59    I consider question 6 to be subsumed in those questions and otherwise unnecessary to answer. The matters that were necessary to take into account in the present case will be discussed in resolving the second ground of appeal.

Question of law 1

60    The FOI Act contains no express text prescribing the time at which the question of the status of a document as an “official document of the Minister” is to be determined. Nor do the parties’ submissions on the question involve a dispute about the meaning of specific words or phrases contained in the text of the FOI Act. Rather, Mr Patrick invites the Court to consider the combined scope and operation of ss 11, 11A and 15 where the phrase “official document of a Minister” appears, and to identify the nature and scope of the factual enquiry to be made by the Commissioner in applying those provisions in the performance of its powers of review.

61    Although not expressly stated, the effect of each party’s submission is to invite the Court to read into the definition of an “official document of a Minister” additional words reflecting their competing positions on the temporal issue. Mr Patrick contends that the issue to be determined is whether a document is in the possession of a Minister (etc) “at the time of the request”. On that construction, a document will or will not have the status of an “official document of a Minister according to an assessment of the facts existing at the time that the FOI request was received, and that status cannot be revisited and revised as factual circumstances change. For the Attorney-General it was submitted that the definition requires a factual enquiry to be made from time to time in the administration of the FOI Act, and so may yield different answers as factual circumstances change. The Attorney-General submitted that a document indisputably having the status of an official document of a Minister at the time of an FOI request or original decision to refuse to grant access may lose that status if (for example) a person ceases to hold the office of Minister and successive holders of the office do not have actual possession of the document. The Attorney-General submitted that the Commissioner was correct to conduct the enquiry into the status of the Document against the definition, and to do so by reference to facts as they existed at the time of her decision on review.

62    In the present case, the statute is silent on a topic of some importance to its practical day to day operation. It is not a question turning on the intended meaning of a word or phrase, but rather on the implications that can and cannot be drawn from the rights and obligations of Mr Patrick vis a vis the relevant Minister, as they affect the Commissioner’s decision making functions on a review.

63    In Shi v Migration Agents Registration Authority (2008) 235 CLR 286, the High Court explained the correct approach in determining the factual basis upon which the Administrative Appeals Tribunal was to determine issues arising on a merits review of an original decision made under s 303 of the Migration Act 1958 (Cth). The appellant challenged the Tribunal’s decision on the basis that the Tribunal should have acted on the factual state of affairs existing at the time of the original decision, rather than at the time of the Tribunal’s decision on the review.

64    Kiefel J (as her Honour then was) observed that the Tribunal’s task was to reach its own conclusion as to the correct decision by independently assessing and deciding the matters necessary to be addressed, and that the exercise of its powers on review did not depend on the existence of error by the original decision-maker (at [141]). The same may be said of the Commissioner’s task on review under Pt VII of the FOI Act.

65    Kiefel J said that in determining what was the right decision, the Tribunal must address the same question that the original decision-maker was to address (at [142]). Her Honour said (at [143]):

Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.

(footnotes omitted)

66    Speaking as the President of the Tribunal, White J in Patrick v Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719 considered whether a document subject to a request under the FOI Act fell within the exemption in s 34 relating to Cabinet documents. His Honour identified that the question involved a temporal element of the kind referred to by Kiefel J in Shi, the relevant point in time in that instance being the time that the document first came into existence. His Honour observed that a temporal criterion had also been found to exist in Waubra Foundation v Commissioner of Australian Charities and Not-for-profits Commission (2017) 107 ATR 60, such that the Tribunal was required to carry out its review by reference to the facts and circumstances pertaining at an earlier time. However, as his Honour explained, that did not mean that the Tribunal was confined to considering only that evidence that was in existence at that earlier time.

67    As in those cases, it is necessary in the present case to ask whether the defined phrase “official document of a Minister”, as it appears in operative provisions, has the temporal element for which Mr Patrick contends. The text of the definition contained in s 4(1) (extracted at [21] above) is critical to that task, but it must be borne in mind that the words there are definitional. They have no operation other than in the specific contexts of the FOI Act in which the defined phrase is employed. They must be construed having regard to that specific context, as well as the wider context of the FOI Act and the general law. As Kiefel CJ, Nettle and Gordon JJ said in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 (at [14]):

The starting point for the ascertaining of the meaning of a statutory provision is the text of the statute whist, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

(footnotes omitted)

68    In Taylor v Owners – Strata Plan 11564 (2014) 253 CLR 531 Gageler and Keane JJ emphasised that the task of construction involves the attribution of legal meaning to statutory text, read in context. Their Honours continued:

65     ‘Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning …  But not always’. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.

66    Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.

(footnotes omitted)

69    In addition, under s 15AA of the Acts Interpretation Act 1901 (Cth), the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose is expressly stated) is to be preferred to each other interpretation. As there recognised, the purpose of an enactment may be expressly stated, but it may also be discerned by implication from the text, read in its proper context. The express objects of the FOI Act (summarised at [11] above) are relevant, but as the plurality cautioned in Kline v Official Secretary to the Governor General (2013) 249 CLR 645 (at [37]):

The FOI Act does not pursue its objects, as legislative purposes, at any cost. The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure. A clear example is the exemption of ASIO from the operation of the FOI Act.

(footnote omitted)

70    See also Carr v Western Australia (2007) 232 CLR 138, Gleeson CJ (at [5]); Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619, Crennan, Kiefel, Bell, Gageler and Keane JJ (at [40] – [41]).

71    As a preliminary contextual matter, it is to be borne in mind that if there is a temporal element of the kind asserted by Mr Patrick in relation to a document that is an “official document of a Minister” then it would ordinarily follow that the same temporal element applies in operative provisions employing the phrase “document of an agency”. Neither party suggested otherwise.

72    Before turning to the more contentious issues, it is necessary to say something about the meaning of the words “Minister” and “possession” as they appear throughout the FOI Act.

Possession

73    The word “possession” is not defined. As French CJ said in Momcilovic v The Queen (2011) 245 CLR 1 (at [16]):

…  The word possession embodies a deceptively simple concept which has never been completely and logically and exhaustively defined and may vary according to its statutory context. It has been described as always giving rise to trouble. Nevertheless, there are certain essential elements of the concept. Possession of a thing ordinarily involves physical custody or control of it.  

(footnotes omitted)

74    It is apparent that the FOI Act employs the word in relation to a thing as encompassing at least physical custody or physical control of a thing falling within the meaning of the word “document”. In some instances, the FOI Act employs a deeming device to make it plain that some facts circumstances fall within the meaning of the word.

75    The deeming device is used in the defined phrase “official document of a Minister” in s 4(1) (“… a Minister shall be deemed to be in possession of a document that has passed from his or her possession if he or she is entitled to access to the document …”) and s 13(2) (a document that has been transferred to the care of the National Archives by an agency “shall be deemed to be in the possession of that agency”). However, it does not necessary follow that the word “possession” or “possess” as it appears elsewhere in the FOI Act (outside of the defined phrase) is confined to actual physical custody or control. In Beesley v Australian Federal Police (2001) 111 FCR 1, Beaumont J referred to cases in which the word possession was found not to be confined to actual or physical possession but to embrace legal or constructive possession. His Honour said concept of constructive possession” in the sense of there being an immediate right to receive a document fell within the concept of “possession”, even if there was not actual possession of it at the relevant time. I respectfully agree. I do not consider the presence of the “deeming” words in the definition of an “official document of a Minister” to necessarily preclude concepts of constructive possession applying elsewhere in the FOI Act where the word “possession” is found.

Meaning of Minister

76    As to the word “Minister”, subject to any contrary intention, a reference in the FOI Act to the holder or occupier of an office, appointment or position includes all persons who for the time being hold or occupy the office, appointment or position or who perform the duties of the office, appointment or position:  Acts Interpretation Act, s 20. Neither party submitted that the FOI Act evinced any contrary intention. Mr Patrick’s FOI request has itself been dealt with on the basis that the person responsible for discharging the obligations of the relevant Minister under the FOI Act was the person holding the office of the Attorney-General from time to time. The Commissioner’s review under Pt VII of the FOI Act proceeded on the same basis.

77    Under s 55A of the FOI Act, the parties to the Commissioner’s review included “the Minister to whom the request was made”. The request was made to the person occupying the office of the Attorney-General (then, Mr Porter), who made the decision on review. The parties to the review initially included Mr Porter, however the Commissioner proceeded on the basis that he ceased to be a party to the review when he ceased to hold office. The parties to the review subsequently included Senator Cash, Senator Gallager and then Mr Dreyfus. Mr Patrick does not allege error in the Commissioner’s assumptions as to who was a party (or not a party) to the review from time to time. That assumption accords with s 20 of the Acts Interpretation Act. It was common ground on this appeal and these reasons proceed from the footing that the assumption is correct without examining it further.

78    It follows that under s 55DA of the FOI Act, the person who had the obligation to use his or her best endeavours to assist the Commissioner was the person occupying the office of Attorney-General from time to time. Originally, that was Mr Porter. The obligation then shifted in turn to Senator Cash, Senator Gallagher and Mr Dreyfus.

The asserted temporal element

79    The temporal question is whether Mr Porter’s ceasing to hold office was a factual event that could change the status of the Document to one that fell within the definition of an official document of a Minister to one that did not.

80    Mr Patrick submitted that it would be contrary to the objectives of the FOI Act to construe its provisions in a way that permitted revisitation of the question of whether a document was an “official document of a Minister” according to facts and circumstances existing at a time after the Request Date (including at a time of a decision on review). Such a construction, he submitted, would enable a Minister (and an agency) who became aware of an FOI request in relation to a particular document to take steps to remove the document from their “actual or deemed possession” (including by destroying it), thus avoiding the operation of all other provisions of the FOI Act to it. He submitted that that approach would be contrary to a presumption of statutory construction that legislation is not to be construed in a way that would enable a person to take advantage of their own wrong (referring to P Herzfeld and T Prince, Interpretation (2nd ed, Thomson Reuters (Professional) Australia Limited, 2020) p 258 [9.720] and the cases there cited).

81    There is a danger in that latter argument descending into circularity. Whether or not the deliberate loss or destruction of a document is a “wrong” must itself turn on the proper construction of the FOI Act. Moreover, the express objectives of the FOI Act are not to provide for an absolute right of access. Rather, as emphasised in Kline, the FOI Act seeks to strike a balance between competing public interests. Having said that, I accept that Parliament could not have intended that a Minister or agency could respond to a request complying with s 15(2) by destroying the document described in the request, and then communicating the news that there exists no official document of a Minister falling within its scope. As will be explained, there is no express provision in the FOI Act providing for such an outcome and there is no proper basis to discern any such intention by necessary implication.

82    Apart from the postulated intentional wrong-doing, it was submitted that the objective events occurring in Mr Patrick’s own case illustrated the mischief that arises from the interpretation of the FOI Act adopted by the Commissioner, because an event so commonplace as a Minister ceasing to hold office would result in all pending access applications under the FOI Act being refused because of that change, other than in cases where the outgoing Minister transferred actual possession of documents falling within the scope of the request to the new holder of the office.

83    Mr Patrick otherwise relied on four contextual considerations.

84    First, he submitted, a temporal limitation arose implicitly from ss 11, 11A(3) and 15(1), considered together. A request may only be made under s 15(1) for (relevantly) an official document of a Minister, and so must necessarily be in relation to a document that is at that time in existence and at that time in the Minister’s actual or deemed possession. Subject to exceptions, the general rule imposing a duty to grant access imposed under s 11A(3) is one that relates to that very document. With some qualifications, I accept that submission. Read together, the two provisions evince an intention that from the point in time that a request is made in relation to a document that at that time falls within the definition of an “official document of a Minister”, the general rule is that the person requesting the document has a legal right to access that very document and the Minister has a legal obligation to provide access to it, unless there is a provision in the FOI Act providing a lawful basis for the Minister to refuse to grant access. The qualification is that in some instances a request may be refused irrespective of whether a document meets the description of an official document of a Minister, including instances captured by s 7 or s 24 discussed above.

85    Next, Mr Patrick submitted that the temporal limitation for which he contends is necessary because 24A(1)(b)(ii) of the FOI Act (extracted at [25] above) would otherwise have no meaningful work to do. He submitted that it would be unnecessary to enact s 24A in relation to a document in respect of which there was otherwise no obligation to grant access. In the case of a document that did not exist, the request could be met with a response that there are no documents meeting the description of an official document of a Minister to which the rule in s 11A(3) could apply. Resorting to s 24A(1)(b)(ii) in that circumstance would be unnecessary.

86    In Chu v Telstra Corp Ltd (2005) 147 FCR 505, Finn J traced the provenance of s 24A, identifying its genesis in the Senate Standing Committee on Legal and Constitutional Affairs’ Report Operation and Administration of The Freedom of Information Legislation of 1987. At that time, his Honour said, the FOI Act contained no provision enabling an agency to respond to a request for access to a document which the agency may have had good reason to believe that it possessed, but which could not be located. The amendments based on the Committee’s Report included provision for review by the Tribunal of a decision to refuse access under s 24A:  FOI Act, s 55(1)(a), and the Tribunal in turn was empowered to require an agency to conduct further searches for the document.

87    Considered in its proper context, s 24A lends some support to Mr Patrick’s argument that the identification of a document as an official document of a Minister depends on facts and circumstances existing at the time that a request under s 15(2) of the FOI Act is made. Section 24A may be understood as in the nature of a procedural exception to the general rule that would otherwise mandate access under s 11A(3) to a document described in an FOI request. It is to be applied having regard to facts and circumstances existing at the time of the decision. It may naturally be understood as concerned with a circumstance in which a document that was an official document of a Minister at the Request Date has subsequently become lost (s 24A(b)(i)) or has ceased to exist (s 24A(b)(ii)). It may also be understood as providing an independent basis for refusing to provide access to a document thought to exist and known to be in a Minister’s possession, but which cannot be found, or that has been determined (after the Request Date) not to exist. It may also apply in cases where the question of whether or not a requested document is in the possession of a Minister cannot be objectively determined.

88    It is important to recognise that s 24A(1)(a) does not extend to all circumstances in which a document is thought to have been (or known to have been) lost or destroyed. On its terms, it requires that all reasonable steps be taken to find the document. The search must be genuine, in the sense that it is anticipated that something may be found in the places that are searched and that no basis exists to search another place. That requirement could not be fulfilled in a case where the Minister knows that the document has been destroyed after a request for it under the FOI Act has been made.

89    The Attorney-General decried such hypotheses as extreme, and indeed it is. As discussed in relation to the remaining grounds of appeal, the destruction of a document subject to a pending request under the FOI Act is so antithetical to its objectives that, absent express provision, this Court should avoid a construction that contemplates such an outcome. The point for present purposes is that s 24A cannot on its terms provide a lawful basis for refusal to grant access to a document that is known to have been destroyed after an FOI request has been received.

90    There is otherwise nothing in s 24A to suggest that the appropriate time for asking whether a document is an official document of a Minister is the time of a decision as to whether or not access should be granted to it. If the question of a whether a document is an official document of a Minister is to be determined on the basis of facts existing at the time of the decision, then it is difficult to see what function s 24A(b)(ii) is intended to serve in the scheme as a whole. I accept Mr Patrick’s submissions to that extent, but it remains necessary to identify whether there is anything in the Attorney-General’s submissions that would favour a different constructional choice.

91    Next, Mr Patrick submitted that s 16 and s 17 of the FOI Act indicated that there was a temporal limitation to the enquiry. Section 16 makes provision for the transfer of a document from an agency (there defined to include a Minister) to another agency where the document is in the possession of that other agency. Whilst s 16 requires the question of possession to be considered at the time that an access request is received, to my mind it does not follow that the question could not or should not be revisited at a later time on the basis of facts existing at that later time. The argument based on s 17 of the FOI Act was similarly unconvincing. It prescribes circumstances in which an agency shall deal with a request for access to certain intangible records as if it were a written document and provides that the FOI Act applies as if the agency had such a document in its possession. It was submitted that the word has would have been used if the intention was for the question of possession to be answered at the time of the decision to grant or not grant access. That is not a compelling explanation for the choice of the past-tense word had. The choice is grammatically explained by deeming language of s 17 as a whole and the subject matter with which it deals. I garner little assistance from s 16 and s 17 in addressing the temporal question.

92    The parties’ submissions otherwise focussed on those provisions of the FOI Act that did or did not have an obvious (or not so obvious) temporal component. But none of them supplied an answer to the question of whether the definition of an official document of a Minister has a temporal component in the various contexts in which the phrase is employed. For example, it is common ground that the language in s 11A(4) to s 11A(6) require the question of whether a document is exempt or conditionally exempt to be determined by reference to facts and circumstances as they exist “at a particular time”. As the reasons of White J in Patrick illustrate, different exemptions may nonetheless have different temporal elements, including temporal elements that arise by necessary implication and that are not immediately obvious on the text alone.

93    Mr Patrick invited the Court to adopt the approach of Deputy President Forgie of the Tribunal in Lobo v Department of Immigration and Citizenship (2010) 116 ALD 639. In that case, the Deputy President concluded that the Tribunal’s jurisdiction to review a decision of an agency to refuse access to documents of the agency did not extend to documents that came into the agency’s possession after the receipt of a request for access had been made. The Deputy President said that the documents that were the “documents of an agency” for the purpose of determining a request for access was “the criterion that remains static throughout the review process”. By that phrase, the Deputy President meant that there was a cohort of documents to be considered against the terms of the FOI Act, to be identified and fixed once and for all by reference to the facts as they existed at the date that the request is received, and that cannot later expand in number as more documents come into the possession of the agency. She said that as the agency’s obligation under s 11A(3) of the FOI Act was confined to documents in its possession at the time of the request, the Tribunal’s powers on review were similarly confined (at [61]).

94    The Deputy President went on to say that a decision as to whether to provide access to those particular documents depended upon “matters that may change”, both in respect of the content exemptions and the procedural exceptions of the kind I have referred to earlier in these reasons. After describing the Tribunals powers as “linked to the request”, the Deputy President continued (at [63]):

….  Whether the agency fulfils its correlative duty to provide access in accordance with the FOI Act depends on matters pertaining to the particular request and agency to which it is made. Those matters are the subject of evidence. They include workload considerations and exemption provisions. Like the personal circumstances of a claimant for a social security benefit, those are matters that may change. A claim that a document is exempt, for example, may longer be sustainable when the decision is reviewed because of changing events. A document thought to have been mislaid might have been found. An announcement might have been made and deferment of access under s 21 might no longer be justifiable.

95    The reasoning in Lobo highlights an obvious aspect of the regime established under the FOI Act:  much of the law establishing exemptions and exceptions pre-supposes the existence of one or more documents to which that law can (indeed must) be meaningfully applied. The regime operates in a practical reality in which there must first be an assessment as to whether there is a document falling within the scope of the request that is in the possession (actual or deemed) of the person responsible for either granting access to it or for identifying and asserting any lawful basis for refusing access to it. In the case of a request that does not adequately describe documents, access may be refused under s 24 and the process may end there. But in the case of a person holding the office of a Minister, that assessment otherwise involves not only the fact of possession (or facts giving rise to deemed possession) but also whether the document is possessed in his or her official capacity. It is only after that assessment has been made that the provisions creating exceptions and exemptions to the general right of access under s 11A(3) can be considered.

96    As to temporal considerations, consistent with the reasoning and outcome in Lobo (which I consider to be correct) the FOI Act would be unworkable if there existed an ongoing obligation to consider the application of its provisions to all documents continually coming into the possession of an agency or Minister for the first time after an FOI request is made. The more sensible construction is that the population of documents falling within the scope of the request is to be determined by reference to facts and circumstances existing at the time that the request is made such that the cohort of documents subject to that assessment is to remain static. To my mind it would be a strange construction if the cohort of documents to be considered against the provisions of the FOI Act could be temporally static in the sense that it could not later expand, but fluid in the sense that it could later shrink. Whilst Lobo is not directly on point, and whilst it is not concerned with precisely the same temporal question, the reasoning is sound and I would adopt the same approach as a step in resolving the present question of law.

97    Section 24A may nonetheless operate so as to permit a Minister or agency to refuse to grant access to a document within that cohort, provided that the preconditions for the exercise of that power are met. The existence of those pre-conditions may be assessed by reference to facts and circumstances existing at the time that a decision to refuse access is made (including a decision on review). As I have already mentioned, s 24A may also apply in cases where the question of possession cannot be objectively ascertained, but a document is nonetheless believed to be in the possession of the Minister concerned. That is a sensible construction of the FOI Act that accords with its objectives. It remains necessary to identify whether it is the only such construction.

98    The Attorney-General submitted that the FOI Act must be construed in the context of a broader legislative regime concerning the handling, care and access to public documents including the Archives Act which operates both to prohibit the destruction of public records other than in accordance with its terms and require the transfer of certain records to the National Archives where a different public access regime applies. There is no evidence in this case that the Document was transferred by Mr Porter or any other person to the National Archives, nor is there evidence that the Document has been destroyed in accordance with or contrary to the Archives Act or any other law. But it is necessary to consider the provisions of the Archives Act because of submissions concerning its interaction with the regime established under the FOI Act and the nature of the mischief said by Mr Patrick to arise if his submissions are rejected. That will be done in the context of answering the remaining questions of law.

99    Ultimately, I have concluded that the question of whether a document referred to in an FOI request meets the description of an “official document of a Minister” (if it arises in the particular case) is a question that must be resolved by reference to facts and circumstances existing at the time that a request under s 15(2) is received in respect of it. The status of the document under the definition is not to be revisited and revised by reference to changed facts and circumstances following the date that the request is received. However, as I have said, access to a document to which an FOI request relates may nonetheless be refused in the circumstances described in s 24A of the FOI Act, applied by reference to facts and circumstances arising after a request is received. It is in that context that loss or destruction of a document captured by the request falls to be considered. As explained earlier, access to a document that may be captured by a request may also be refused on bases that do not depend on any finding about whether it is so captured, or whether or not it has been lost or destroyed.

100    I am urged by the Attorney-General to avoid that construction because it may create a situation in which Ministers may have legal obligations under s 11A(3) to provide access to documents that are no longer in their physical control or possession at the time of their own decisions or decisions on external review. In other words, it may result in there being an obligation that cannot be fulfilled for reasons that are not the fault of the Minister concerned. That argument can be rejected for reasons given in the course of answering the remaining questions of law. In short, there may be an answer in s 24A of the FOI Act to the conundrum in the case of accidental loss or destruction of a document falling within a request, depending on the facts. The asserted conundrum does not otherwise tell against the imposition of the duties referred to below. Rather, compliance with those duties will avoid the conundrum arising at all. Deliberate non-compliance may constitute a refusal to comply with a legal obligation or an interference with the rights of the requesting party. That is not a conundrum in a constructional sense. Rather, it is a factual conundrum arising because of a breach of duties owed under the statute, properly construed.

101    Submissions of the Attorney-General concerning the special status of Cabinet documents will be addressed in the pages that follow.

Questions of law 2 and 5

102    Question 2 concerns the obligations owed by a Minister (including obligations of an outgoing Minister) in relation to a document that falls within the terms of a request made under s 15 of the FOI Act and that was, at the time of the request, an official document of the Minister (specifically in circumstances where the document is the subject of a pending review by the Commissioner under Pt VII of the FOI Act). The question is whether the Minister (including an outgoing Minister) has an obligation to take such steps as are necessary to retain the document in the custody of the Minister (from time to time) for the purpose of the review and/or an obligation to not deal with the document in such a way as to frustrate the provision of access to the document in accordance with the FOI Act “or to frustrate the appeal”. I understand the latter part of the question to refer to the frustration not only of the exercise of a right of appeal to this Court but also the frustration of a right of review under Pt VII.

103    Question 5 is related. It is whether a “current Minister” is entitled to access a document that has been transferred out of the custody of the Commonwealth by a former Minister in breach of any of the duties or obligations described in (relevantly) question 2.

104    The two questions may be considered together.

105    As explained earlier in these reasons, the right to access a document under s 11 of the FOI Act is not absolute, but depends upon the application of the FOI Act to a request made under it. Importantly, that is not the only right that may be enjoyed by a person who makes a request under the FOI Act for a document, nor is the obligation under s 11A(3) the only obligation that may be owed by a person receiving the request.

106    A person who makes a request under the FOI Act has a right to have that request determined and responded to according to law. The correct response to the request may not be known until rights of review and appeal are exhausted, or the time to exercise them expires. There is nothing at all contingent or uncertain about the right to have the request determined lawfully, including the rights of review and appeal. No express words are necessary to identify it. It is a fundamental and immovable plank in the resolution of the issues before me.

107    An original decision of a Minister or agency to refuse access to a document is not conclusive of whether the right to access it (or the obligation to grant access to it) exists. That decision may be varied or substituted on merits review. In turn, the decision on merits review is subject to supervisory review on a question of law on an appeal (such as the present) under s 56 of the FOI Act, and also in the exercise of the High Court’s jurisdiction under s 75(v) of the Constitution, or the equivalent jurisdiction conferred on this Court under s 39B of the Judiciary Act 1903 (Cth). A request that has been originally refused may at any time be reversed and substituted, so revealing the existence of an immediate obligation on the part of the agency or Minister to discharge the obligation under s 11A(3).

108    The right to have a request determined in accordance with the FOI Act gives rise to concomitant obligations on the receiving agency and Minister by necessary intendment. At the very least, there is an obligation not to do any act that would interfere with the right to have the request determined according to law, including any act that would frustrate the exercise of a right of review or appeal by rendering its exercise ultimately futile (even if successful).

109    The right to have a request lawfully determined includes a right to have the request assessed for compliance with s 15(2) of the FOI Act. An original decision on that question is itself reviewable. As such, the procedural rights and associated obligations to which I have referred apply to all requests purportedly made under the FOI Act whether or not they are initially determined by an original decision maker not to comply with s 15(2).

110    The structure of s 11A(3) of the FOI Act is that it is for the decision-makers to identify a lawful basis for refusing access to a document referred to in a request that meets the requirements of s 15(2) and to which the FOI Act applies. If there is no document meeting the description of an “official document of the Minister” falling within the request, at the time that the request is received, then that is a lawful response that may be given. Another response may be that the request does not provide adequate information to enable the document to be identified:  FOI Act, s 24AA(1)(b). Another response is that the request relates to documents that are “exempt documents” as defined in the FOI Act. That is not an exhaustive list. The point is that no response given by the original decision-maker is conclusive of the issues arising on the request for so long as the requesting party has and exercises rights of review and appeal.

111    I have already accepted Mr Patrick’s submission that a request cannot be responded to by a Minister or agency taking the step of wilfully destroying a document, then responding in terms that it is not in his or her actual or constructive possession. As mentioned earlier, the Attorney-General complained that the construction of a statute should not be undertaken by reference to extreme hypothetical factual scenarios. But it is not at all plain that the destruction of documents containing Government information is an extreme factual scenario. Even if it were, it is nonetheless informative to ask how the FOI Act would operate on those facts in accordance with each party’s preferred construction. Without the temporal element identified earlier in these reasons, the extreme” fact of a requested document going through a shredding machine would form a permissible factual basis for refusing access under the FOI Act, not a breach of any duty arising under it. In accordance with the caution in Kline the objects of the FOI Act must be understood as being subject to competing public interest considerations. But there is no obvious public interest consideration favouring the Attorney-General’s preferred approach.

112    As discussed below, destruction of a document that is a “Commonwealth record” may in some circumstances constitute a criminal offence under the Archives Act. However, not all documents fall within the definition of a Commonwealth record. In any event, Mr Patrick does not seek to have a person prosecuted for destruction of a document. He seeks access to the Document and he may well have a legal entitlement to that access.

113    The same considerations apply where the request has been the subject of an initial refusal decision founded on any one of the exemptions in the FOI Act that has proceeded to a review before the Commissioner. In such a case, wilful destruction of the subject document would constitute an interference with the right of the requesting party to have the request determined afresh, on merits review, in accordance with the law. I accept Mr Patrick’s submission that destruction of a document in those circumstances would be anathema to the express objects of the FOI Act. That is not because the express objectives in s 3 of the FOI Act are a direct source of rights and obligations. Rather, it is because the whole of the regime could be rendered useless in advancing those objectives if an agency or Minister could determine for his or herself that a request could be refused because the document has been destroyed following receipt of a request for access to it.

114    I emphasise again that there no evidence in the present case that the Document forming the subject of Mr Patrick’s request has been wilfully destroyed. The point is that the construction of the FOI Act favoured by the Attorney-General is one that would permit such destruction to occur as a lawful response to a request under the FOI Act, whether or not destruction of the document constitutes a breach of some other law.

115    In a case where there is no change in the person holding the office of Minister, I conclude that on the proper construction of the FOI Act there is an obligation owed by the recipient of a request not to deal with a document described in the request in such a way as to frustrate the right of the requesting party to have the request finally determined including on review or appeal. That includes an obligation not to deal with the document in way that would make it impossible to grant access to the document in accordance with the FOI Act should it ultimately be found that the obligation under s 11A(3) exists. It follows that there exists an obligation not to deal with the document in a way that would render the exercise of review or appeal rights inutile. In my view, it must also follow that the Minister or agency responsible for dealing with the request and in whose possession (including deemed or constructive possession) it is in at the time of the request, must maintain that possession until the request is finally determined upon the exercise of review and appeal rights or the expiration of time limits relating to them. For those reasons, I would answer the question in [2(d)] “yes”. In the case of a Minister the relevant person is the person holding the office of Minister from time to time.

116    The practical content of that duty must depend on the facts and circumstances of the particular case. To be clear, I do not accept that it is necessary for the document to be kept in the physical custody of the person in every case and so would answer the more specific question raised in [2(c)] “no”. There will be cases in which the rights of the requesting party may be sufficiently protected if the document is kept within the Minister or agency’s physical control (but not custody), or by the maintenance of an entitlement to access to the document from another (such as a former Minister) with a view to exercising that entitlement for all purposes necessary for the final resolution of the request, should they arise.

117    The duties I have identified may be understood as ordinary incidents of the function of the relevant Minister or agency to perform functions under the FOI Act, including the function under s 55DA to use best endeavours to assist with a Commissioner’s review. They arise as a natural and logical consequence of the requesting party’s procedural rights to have the request determined.

118    The obligations of “outgoing Ministers” mentioned in the second question of law require further elaboration.

The consequence of a change of Minister

119    Any question about the obligations of a Minster under the FOI Act must be answered in light of s 20 of the Acts Interpretation Act, as well as the express statement in s 3 that information held by the Government is a national resource to be managed for public purposes. A document containing such information and held in an official capacity is not the property of the person who happens to hold the office of Minister, nor of the political party to whom that person happens to belong.

120    It follows that upon a person ceasing to hold the office of Minister, the person has no personal entitlement to maintain possession of a thing previously held in his or her official capacity. Whether or not information contained in a document is subject to obligations of confidentiality as between entities within Government or external to it is a different question (discussed below). But there is nothing in the FOI Act conferring an entitlement on a person who has possession of a thing obtained in his or her official capacity as Minister to maintain possession of the thing after ceasing to occupy the office.

121    In the case of a document for which a request has been made under the FOI Act, the duties of the Minister to deal with the request must be understood as duties that must be discharged by the person holding the office of Minister from time to time. Insofar as the FOI Act confers rights on the Minister, those rights may be exercised by the person holding office from time to time. The right of Mr Dreyfus to participate in the review and this appeal is an example.

122    In my view it can be no answer to the FOI request to say that another person maintains physical custody or control of the document if it is also the case that the person responsible for resolving the request has an entitlement to access it. So much is apparent from the definition of the phrase “official document of a Minister”. As discussed earlier in these reasons, it also arises from the meaning of the word “possession” standing alone, as identified by Beaumont J in Beesley. If a change of Minister has occurred before an FOI request is made, and the request relates to a document that is in fact in the physical custody of the former holder of office, then the new incumbent is, at the time of the request, deemed to be in possession of it by virtue of that entitlement. The document will be an official document of a Minister at the time of the request and the FOI Act then operates on it in accordance with its terms. The Minister’s entitlement to access the document must at least be maintained, if not exercised, to the extent necessary to fulfil the duties I have described.

123    In a case where there is a change in the person holding office of Minister after a request but before the Minister makes an initial decision on the request, the duty to determine the request is one owed by the new occupier of the office. The function of determining the request is to be carried out in the context of the rights and obligations identified above. The new occupant of the office of Minister has the same obligations as the former occupant, and may demand from the former occupant the transfer of the custody of the document to the extent necessary to fulfil those obligations. The machinery of that in the context of Cabinet documents is discussed separately below.

124    Under s 24A of the FOI Act, reasonable steps to find a document must include steps to make enquiries as to its whereabouts directed to the person last known to have it in his or her physical custody or control and against whom there is an entitlement to access it (including a former Minister). Absent such enquiries, the new occupant of the office of Minister cannot reasonably form a view that the document “cannot be found” or “does not exist”. Expressed another way, a search cannot be described as reasonable if it is confined to a physical place, when it is known that the document was last in the possession of a person who can reasonably be supposed to have taken it from that place.

125    The construction favoured by the Attorney-General on the temporal question would result in an outcome where, upon a change of Minister, all requests under the FOI Act still pending at that time can lawfully be met with a nil response, notwithstanding that the document was in the possession of the person holding office of Minister at the time that the request was made, and notwithstanding that it is known to have remained in the custody of that person immediately upon their ceasing to hold office, and not withstanding that the outgoing Minister has no personal entitlement to physical custody and control of it. There could be a refusal notwithstanding that there exists no other basis in the FOI Act for such a decision. There is no obvious textual basis or policy consideration to justify favouring that construction.

126    I accept that there may be very strong political resistance to an outgoing Minister transferring documents forming the subject of a pending FOI request to a new incumbent, particularly on a change of Government. This Court was told that it was common practice for documents not to be transferred. But the FOI Act is not concerned with party-political matters other than to the extent provided for in respect of documents correctly described as falling within certain exemptions. To the contrary, it is a regime devised to enlarge scrutiny of Government activities in accordance with its terms, including in cases where scrutiny is not wanted. If there be a common practice of the kind suggested to this Court in submissions, it is not one that is authorised or contemplated by the FOI Act and it should stop. The balance between maintenance of secrecy and public access is one that is struck by the Parliament. It is legislation, not political or administrative convention, that is determinative of Mr Patrick’s rights in the present case.

127    The better construction is one that requires and assumes compliance by outgoing and incoming Ministers with the obligations I have identified, operating together with the temporal element contended for on this appeal. To act otherwise in accordance with those obligations would constitute an interference with the legally enforceable right of the requesting party to have the request determined according to law, interference with review and appeal rights, and interference with the legally enforceable right of access if there be one in accordance with the ordinary operation of the FOI Act. In other words, if a conundrum arises where a Minister does not have actual or deemed possession of a document, that is a matter that can be considered under s 24A of the FOI Act. If 24A cannot supply the answer then it may be that the conundrum has arisen because of a breach of duty on the part of those responsible for handling the request. The circumstance that a case may arise where access cannot be given because a duty has been breached is not a reason to avoid a construction that imposes the duty.

128    Question 5 should therefore be answered “yes”, although with one qualification. It will not always be the case that a former Minister having an official document in his or her custody will be in breach of a duty arising under the FOI Act. It is enough to observe that the former Minister has an obligation to deliver up the document into the possession of a person entitled to demand it. That includes the new incumbent in the office in connection with a document subject to an unresolved request for access under the FOI Act. If the document contains information that is said to be confidential as against the new holder of the office, then delivery up of the thing containing the information can occur subject to conditions maintaining that confidentiality. Cabinet documents may fall within that description, but in my view documents claimed to be subject to legal professional privilege are less likely to be so. That is because the privilege subsisting in documents held by a person in their official capacity as a Minister of the Commonwealth is not theirs to claim in any personal capacity. Rather, it may be claimed by the person holding the office from time to time.

The Archives Act

129    I will now explain why the Attorney-General’s submissions about the operation of the Archives Act do not support any different conclusion on the questions of law concerning the proper construction of the FOI Act.

130    The overarching submission was that the legislative context of the FOI Act includes the operation of other legislative schemes dealing with the retention of and access to Commonwealth records. It was submitted that the FOI Act and Archives Act are “complementary” and should be considered together as a single regime. So much may be generally accepted, however, the manner in which the two enactments interact (if at all) must turn on the proper construction of each them. If there are inconsistencies between them, that may be resolved in accordance with well-established principle. I accept that the FOI Act should not be construed to identify obligations by implication if fulfilment of the obligation would constitute a breach of another irreconcilable law. But that is not the case here.

131    It was next submitted that public access to documents in the possession of a former Minister is governed by the Archives Act, such that it was both unnecessary and inappropriate to identify the temporal element in response to question 1 or to identify implied duties under the FOI Act in response to questions 2 and 5.

132    The objects of the Archives Act include “preserving and making publicly available the archival resources of the Commonwealth” and “to impose record-keeping obligations in respect of Commonwealth records”. The parties are in dispute as to whether the Document subject to Mr Patrick’s request is a “Commonwealth record”. Mr Patrick submits that it is not. There is support for that contention in Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1 at [79] – [83] and I accept it. The Attorney-General’s submissions will nonetheless be considered (and rejected) on an assumption that a document held by a Minster (and not also by an agency) is a Commonwealth record as defined in the Archives Act. But as Hocking illustrates, the Archives Act does not operate on all documents to which the FOI Act may apply, and vice versa. That of itself is a reason not to read the FOI Act as in any way subservient to the operation of the Archives Act except where the express provisions of either enactment require that approach.

133    Under s 3C of the Archives Act, the Director-General may determine that a specified Commonwealth record is part of the “archival resources of the Commonwealth”. A determination made under s 3C is not a legislative instrument. It an administrative act done in writing that may be varied or revoked from time to time. That is a reason not to approach questions of construction under the FOI Act as if they were influenced or dictated to by the terms of a determination or authorisation made under the Archives Act. The meaning of the FOI Act does not shift and change according to varying administrative decisions made under a different law, even if those decisions have legal force. I accept, however, that the practical operation of a different law may affect the factual circumstances in which the FOI Act is to be applied.

134    Division 2 of the Archives Act is titled “Dealing with Commonwealth records”. Under s 24(1) it is an offence for a person to engage in conduct that results in the destruction or other disposal of a Commonwealth record, or the transfer of its custody or ownership, or its damage or alteration. That offence is subject to Pt V of the Archives Act. Section 24(2) relevantly provides that the offence created in subs (1) does not apply to anything done (a) as required by law; or (b) with the permission of the National Archives or in accordance with a practice or procedure approved by the National Archives. Plainly enough, a thing done “as required by law” may include a thing required to be done under the FOI Act, including the transfer of the custody of a document, or its retention for the purpose of discharging obligations under it.

135    Section 27 of the Archives Act applies to a Commonwealth record that is in the custody of a Commonwealth institution (other than the National Archives) and that has been determined to be part of the archival resources of the Commonwealth under s 3C. Section 27(2) provides that the person responsible for the custody of the record must cause the record to be transferred to the care of the National Archives in accordance with arrangements approved by the National Archives. The record must be transferred “as soon as practicable after the record ceases to be a current Commonwealth record” and in any event within 15 years of it coming into existence:  Archives Act, s 27(3). A “current Commonwealth record” is defined to mean a Commonwealth record that is “required to be readily available for the purposes of a Commonwealth institution”, other than purposes under the Archives Act. The expression “Commonwealth institution” is defined to capture “an authority of the Commonwealth” which in turn is defined to mean “the holder of a prescribed office under the Commonwealth”.

136    General Records Authority No 38 (GRA 38) is a document issued by the Director-General on 25 October 2018, before the High Court delivered judgment in Hocking. Titled “Ministers of State”, its two stated purposes are to authorise arrangements for the disposal of records in accordance with s 24(2)(b) of the Archives Act and to determine certain records to be classed as part of the archival resources of the Commonwealth under s 3C.

137    Those two purposes are separately empowered and so must be considered separately.

138    GRA 38 is said on its face to apply to “All core business records relating to Ministerial Office and Portfolio Management”. The effect of GRA 38 is to authorise a thing to be done in accordance with an approved practice or procedure with the result that the offence created under s 24(1) does not apply to acts so authorised. The authorisation under GRA 38 is given to “Ministers, former Ministers, and Ministerial offices” as well as “Heads of Commonwealth institutions in possession of Ministerial records”. The expression “Ministerial records” is defined in GRA 38 to mean a record received and kept by a Minister or Ministerial office, other than a record that was not made or received in connection with discharging the Minister’s responsibilities. However, paragraph 3 excludes from that definition “Cabinet documents”. Paragraph 3 of GRA 38 states in part:

This records authority does not apply to Cabinet documents as defined in the Cabinet Handbook of the Commonwealth (as amended from time to time) – except in the case of copies of Cabinet records that have been substantially annotated by the Minister or the Ministerial office. Cabinet documents are Commonwealth records subject to the Archives Act 1983. Cabinet documents must be managed in accordance with the Cabinet Handbook or as directed by the Cabinet Secretariat, and the Archives Act 1983.

139    That part of GRA 38 must be understood in its proper context against the offence created by s 24(1). Its purpose is to prescribe circumstances under s 24(2) in which that offence does not apply. That part of GRA 38 does not justify the rejection of Mr Patrick’s submissions on any of the questions of law arising on this appeal. The circumstance that an act or omission does not amount to a criminal offence under one enactment does not mean that the same act or omission cannot be unlawful under another. The matters prescribed for the purpose of s 24(2) are exceptions to an offence that would otherwise be committed by the destruction of a Commonwealth record. They cannot be elevated to mandatory obligations to deal with the record in a way that would be inconsistent with obligations arising under any other law.

140    Nor can they relate in any event to a document not being a Commonwealth record. In any event, irrespective of the content of any authorisations prescribed for the purposes of s 24(2), the offence in s 24(1) on its terms does not apply if the act or omission is authorised by any other law. If on its proper construction the FOI Act requires an outgoing Minister to cause custody of a document to be transferred out of his or her custody for any reason, then the transfer of custody would not constitute an offence under s 24(1). There is no inconsistency between the construction favoured by Mr Patrick and that part of the Archives Act.

141    For the purposes of s 3C of the Archives Act, GRA 38 goes on to classify documents according to their description, and to identify the “disposal action” applicable to documents in each class, being either “Retain as National Archives” or “Destroy 7 years after action completed or when the Minister leaves office, whichever is sooner” (my emphasis).

142    In addition, GRA 38 states (at [12]):

Records of ‘Retain as National Archives’ (RNA) status in this records authority have been determined to be part of the archival resources of the Commonwealth under section 3C of the Archives Act 1983 and should be transferred to the National Archives by arrangement when they cease to be required for business purposes or when the Minister leaves office.

Ministerial records of archival value that are in the custody of a Commonwealth institution are required to be transferred to the care of the National Archives in accordance with s 27 of the Archives Act 1983. The permission of the National Archives is required where a Minister or other person wishes to transfer the custody of Ministerial records to a person or institution other than the Commonwealth or a Commonwealth institution.

(emphasis added)

143    Those parts of GRA 38 are to be understood as made in the exercise of the power conferred under s 27 of the Archives Act and as so must be interpreted in a way that conforms with the limits of the power. Importantly, nothing in s 27 authorises the imposition of an obligation to transfer to the Archives a document that has the status of a “current Commonwealth record”, namely a record that is required to be available for the purposes of a Commonwealth institution (other than purposes of the Archives Act itself).

144    The Attorney-General submitted that GRA 38 in conjunction with s 27 of the Archives Act imposed an obligation on outgoing Ministers to transfer all Commonwealth records forming part of the archival records of the Commonwealth to the National Archives upon the Minister leaving office. That submission ignores the express reference in s 27 of the Archives Act to a document falling within the definition of a “current Commonwealth record”. In light of s 27 of the Archives Act, GRA 38 is not to be interpreted so as to require an outgoing Minister to transfer to the Archives upon leaving office a document that is required to be readily available for the purposes of a Commonwealth institution. Under s 27(3), such a document need only be transferred as soon as reasonably practicable after it is no longer required to be readily available, and in any event within 15 years of it coming into existence. Whether a document is required to be readily available will of course depend on the facts of the particular case. The Attorney-General’s submissions on this appeal did not address the question of whether a document required to be readily available for the purposes of discharging an obligation arising under the FOI Act could meet that description. Instead, the submission rose from the bootstraps of the words in [12] of GRA 38 so as to avoid a construction of the FOI Act that precluded the imposition of the duties altogether. The duties that arise by necessary intendment under the FOI Act are not inconsistent with obligations under the Archives Act and it is therefore unnecessary to consider how any such inconsistency might otherwise have been resolved.

145    The Attorney-General’s submissions concerning the interrelation between the Archives Act and the FOI Act at times appeared to proceed from an assumption that the transfer of a document from a Minister into the care of the National Archives would result in the Minister no longer having the document within his or her effective control or constructive possession, including for the purposes of dealing with an unresolved request for it under the FOI Act. It is not clear how that could be so, given s 30 of the Archives Act. It provides:

30 Commonwealth records to be available to Commonwealth institutions

(1)    The Archives must ensure that all Commonwealth records transferred to its care from a Commonwealth institution are made available, as reasonably required, for use by, or at the direction of:

(a)    that institution; or

(b)    a Commonwealth institution that has succeeded to the relevant functions of that institution.

Note:    Arrangements under section 64 for a person (other than the Archives) to have custody of a Commonwealth record must enable the Archives to meet its obligations under this subsection.

(2)    A record that has been in existence for more than 15 years must not be made available to a Commonwealth institution under subsection (1) in a manner that involves its leaving the custody of the person who has the custody of the record, except as necessary for the proper conduct of the business of the Commonwealth institution.

146    I do not accept that maintenance of possession of a document in accordance with the duties I have identified would be contrary to any obligation arising under the Archives Act, nor do I consider the Archives Act to suggest any obvious policy consideration tending against the imposition of duties I have identified to arise by necessary intendment under the FOI Act. The submissions about the Archives Act in its application to Cabinet documents have the additional flaws discussed below.

Cabinet documents

147    Section 34 of the FOI Act contains general rules and exceptions for determining whether a document falls within the “Cabinet document” exemption. I am not here concerned with its practical application in any particular case. It is enough to observe that s 34 reflects and recognises the role and importance of confidentiality in Cabinet deliberations.

148    At general law, the confidentiality in Cabinet deliberations is a well-established foundation for a claim of public interest immunity to resist the compulsive production of relevant documents in legal proceedings and their use in evidence. In Sankey v Whitlam (1978) 142 CLR 1, Gibbs ACJ explained the justification for documents falling within this class attracting immunity from disclosure, albeit that the protection was not absolute. The object of the protection, his Honour said (at 40), was to ensure the proper working of government, it being “inherent in the nature of things” that a government at a high level cannot function without some degree of secrecy. In Attorney-General v Jonathan Cape Ltd (1976) QB 752 (cited by Gibbs ACJ in Sankey at 41) Lord Widgery CJ observed (at 767) that the degree of protection could not be determined by a single rule of thumb. His Lordship continued (at 770):

The Cabinet is at the very centre of national affairs, and must be in possession at all times of information which is secret or confidential. Secrets relating to national security may require to be preserved indefinitely. Secrets relating to new taxation proposals may be of highest importance until Budget day, but public knowledge thereafter. To leak a Cabinet decision a day or so before it is officially announced is an accepted exercise in public relations, but to identify the Ministers who voted one way or another is objectionable because it undermines the doctrine of joint responsibility.

149    On this appeal, the Attorney-General identified (correctly) that the Document in issue in the present case “was claimed to be exempt as a Cabinet document”. As mentioned above, it was submitted that such documents in the hands of outgoing Ministers were subject to the regime provided for in the Archives Act and subject to conventional arrangements designed to ensure Cabinet confidentiality in accordance with legal principle. In accordance with those arrangements, it was submitted, “such documents must be returned to Cabinet Division or destroyed”. The arrangements are those mentioned in GRA 38, as well as a document titled Cabinet Handbook, a publication of the Cabinet Division of the Department of Prime Minister and Cabinet. The Court was provided with a link to the Cabinet Handbook, directing it to the 15th edition. Reference was also made to the 13th edition.

150    The Attorney-General’s contention as to what “must be done” with “such documents” has two problems. First, as discussed above, there is a real question as to whether any administrative instrument, decision or practice on its terms creates a legal obligation to do something with a document that falls within the scope of a pending access request under the FOI Act and that is claimed to be a Cabinet document. What “must” be done with “such documents depends on the proper construction of the FOI Act. That is because administrative arrangements and conventions cannot be inconsistent with the rights and obligations arising under a statute. As I have mentioned, those rights include the right to have a refusal decision based on a claimed exemption under s 34 of the FOI Act reviewed on its merits. There is no reference to those rights in GRA 38 or in the Cabinet Handbook. I do not understand them to evince any intention to require something to be done that would frustrate them. In this respect the submissions of the Attorney-General descended at times into circularity, presupposing that the Document was a Cabinet document for the purposes of the Cabinet Handbook, the Archives Act and the FOI Act. However, whether the Document is exempt under s 34 of the FOI Act is one of the very questions Mr Patrick has a right to have determined.

151    Section 55U of the FOI Act conditions the powers of the Commissioner to require production of a document that is claimed to be an exempt document under (relevantly) s 34. Section 55U(3) provides that if the Commissioner is not satisfied by evidence on affidavit or otherwise that the document is an exempt document under s 34, the Commissioner may require the document to be produced for inspection. The power under s 55U may be exercised against persons who are not parties to the review. Moreover, the affidavit evidence upon which a party to the review may rely need not be the evidence of a review party, but may be the evidence of a person who is able to inform the Commissioner of any one of the factual matters upon which the operation of s 34 of the FOI Act turns.

152    Section 55U(4) provides that if the Commissioner is satisfied that the document is exempt (specifically that it is a Cabinet document), the Commissioner must return the document to “the person by whom it was produced” without disclosing its contents other than to a limited number of persons prescribed in that subsection.

153    These provisions envisage that there will be persons who may be required to produce the document subject to the claimed exemption to the Commissioner for the purpose of the Commissioner determining whether the exemption applies. Irrespective of the Commissioner’s conclusion, whether the Document is properly characterised as a Cabinet document may yet remain uncertain pending the exercise of any appeal rights.

154    Considering those provisions together, it can be seen that an assertion by an original decision maker that a document is a “Cabinet document” does not definitively make it so. Accordingly, the question of whether the administrative conventions and arrangements (such as those recorded in the Cabinet Handbook) apply to the document subject to the claim may itself be the subject of dispute. The most that can be said is that whilst there exists a pending access request in which the claimed exemption is disputed, the applicability of the conventions and arrangements affecting Cabinet documents is uncertain. The FOI Act should not be construed in a way that would permit a member of an Executive to treat that question as if decided in accordance with his or her own view of the matter. The better construction of the FOI Act is that the Executive not treat the Document in any way that would interfere with the right of the requesting party to have the question determined in accordance with the review and appeal procedures established by the FOI Act itself. Those procedures include the power of the Commissioner to require the production of the document (including from a former Minister or Cabinet Division) and to inspect it. If that be done, the Document may also come before this Court on any appeal commenced by the requesting party or any other party. To put or to purport to put the document out of the reach of the Commissioner or the Court (by purporting to apply the Cabinet Handbook to it) is to interfere with the rights of the requesting party and, depending on the circumstances and outcome, may also constitute a breach of the legal obligation to grant access under s 11A(3) of the FOI Act.

155    Five further observations about the content of the Cabinet Handbook should be made.

156    First, the Cabinet Handbook evidences a practice by which, on a change of Government, the documents are not taken into the custody of an individual, or of the political party or coalition of parties that form Government at the relevant time. Rather, it evidences a practice in which Cabinet documents are held in the care and control of the Secretary of the Department of the Prime Minister and Cabinet. A new series of Cabinet records is established for each successive Government. To the extent that GRA 38 refers to Cabinet documents being the “property” of the Government of the day, that may be understood a referring to confidentiality of Cabinet deliberations confined to those members of a Government who are also members of the Cabinet. It may also be understood as saying something about the rights to access information contained in a document. But the Government of a day is not a legal entity capable of having property rights in the thing containing the information.

157    Secondly, according to the Cabinet Handbook, access to information contained in documents held by the Cabinet Division depends upon the permission of the leader of the particular Government to which they relate. They are issued on a “need-to-know basis”. There is nothing unusual or problematic about that arrangement, considered apart from the terms of the FOI Act. However, it does presuppose that the document concerned does in fact have the status of a Cabinet document. That supposition may be wrong.

158    Thirdly, the Cabinet Handbook is silent on the question of what is to happen to documents that are subject to a request under the FOI Act. As such, it is intended to be read (and must in any event be read) subject to obligations owed under any law.

159    Fourthly, and relatedly, it is not at all apparent that the Cabinet Handbook has legal status in and of itself. Rather, it is the practical machinery for protecting a form of confidentiality that can be (but may not be) legally recognised in a particular case.

160    Fifthly, the transfer of a document into the custody of the Secretary does not of itself make it a Cabinet document for the purposes of the Cabinet Handbook. Accordingly, concepts such as possession and entitlement to access under the FOI Act cannot be determined as if conditions contained in the Cabinet Handbook had any status in law so as to affect property rights in the document or the right to information contained it. If a document is not properly in the hands of the Secretary because it is not properly characterised as a Cabinet document, then that will have implications as to who is entitled to have care and control of it and access to information contained in it.

161    None of that detracts from the imperative that confidentiality in a document in which a disputed claim under s 34 of the FOI Act is made should be maintained throughout the statutory process so that the subject matter of the decision-maker’s own claim about that status can be preserved, pending its final resolution. In conditioning the Commissioner’s power under s 55U, the FOI Act seeks to ensure that the information be divulged only to the limited extent necessary for the Commissioner to perform statutory functions on a review. The provisions of the FOI Act anticipate that the Commissioner may access a document so that its status can be determined. Nothing in the Cabinet Handbook can be erected as an obstacle to the exercise of that power. To interpret it in that way would to vest in the Executive the final determination that a document is a Cabinet document to which the Cabinet Handbook applies so as to put it out of the reach of the FOI Act regime.

162    Nor does anything in the Cabinet Handbook erect an obstacle to a proper person having access to a document for the purpose of preparing an affidavit of the kind referred to in s 55U of the FOI Act. There is no reason why that person could not be a member of a former Government in which the confidentiality resides.

163    I do not consider that the circumstance of a change of Government presents any real difficulty to the processes of review and appeal concerning the status of a document as a Cabinet document where the party to the review is not a member of the relevant Cabinet. The obligations of the new Minister as a party to a review may be fulfilled by obtaining affidavit evidence from a former incumbent or Government leader. Nor do I have any difficulty with the notion that the former incumbent or Government leader may assert a right to be heard on the characterisation of the document and seek to be joined as a party under s 55A on the basis that his or her interests may be affected by the outcome. But in accordance with the proper construction of the FOI Act those persons cannot do any act or thing that would interfere with the right of the requesting party to have the claim determined according to law.

164    A consequence of the proper construction of the FOI Act is that the conundrum of a Minister not having “possession” of a document in order to grant access to it is a false conundrum, at least to the extent that it related to documents claimed to be Cabinet documents. For if a document is correctly determined on review not to be a Cabinet document then there is no warrant for saying that the machinery referred to in the Cabinet Handbook stands in the way to the Minster accessing it for the purpose of discharging the obligation under s 11A(3) of the FOI Act. The same may be said of the Commissioner’s power to directly grant access, standing in the shoes of the original decision-maker.

165    It is for those reasons that I do not accept that the proper construction of the FOI Act and the implication of the rights and obligations identified in these reasons depends upon the content of the Cabinet Handbook, whether considered together with GRA 38 or not.

166    The submissions with respect to Cabinet documents do not otherwise present a reason for answering any one of the questions of law differently.

Grounds of appeal

167    The grounds of appeal may now be briefly decided against all that has been said in the preceding pages.

168    Ground 1(a) alleges that the Commissioner erred by concluding that the Document was not an “official document of a Minister” by reference to facts and circumstances she found to be in existence at the time of her own decision. In accordance with the answers given to the questions of law, that was an error because the test for whether a document is an official document of a Minister was to be applied by reference to facts and circumstances in existence at the time that Mr Patrick’s FOI request was first received by Mr Porter. There could have been no question that the Document met the description of an official document of a Minister at that time. It was the only document in the cohort of documents in fact captured by the request. The obligation of the Commissioner was to identify whether there existed a basis to refuse access to it, specifically but not exclusively by reference to the exemptions claimed in the decision under review. The question of any asserted loss of “possession” of the document arose to be examined in accordance with other provisions of the FOI Act.

169    Ground 1(b) commences with the words “further and in any event”. However, the issue raised by that ground only arises if the temporal question raised in Ground 1(a) were to be decided differently. Given the answer I have given to Ground 1(a) the issue in Ground 1(b) does not arise.

170    However, for completeness, if I am wrong in my conclusion with respect to Ground 1(a), I would uphold the argument in Ground 1(b) to the extent that Mr Porter was under an implied obligation under the FOI Act to take such steps that were necessary to not deal with the Document in such a way as to frustrate provision of access to the Document or to frustrate Mr Patrick’s rights of review and appeal. I also accept that successive Attorneys-General were entitled to insist upon compliance with that obligation and rectification upon non-compliance with it. The reasons for that should be apparent from the answers given to questions of law 1 and 2.

171    The argument in Ground 1(b)(ii) does not arise on the facts because there is no evidence that Mr Porter in fact transferred the Document to the National Archives. An abstract answer to it is subsumed in what I have said about Ground 1(b)(i) in any event. To the extent that these reasons have considered the application of the Archives Act they have done so in order to explain the law as it relates to the relevant grounds and to consider the Attorney-General’s submission that there exists a single coherent regime under which the implied duties asserted by Mr Patrick do not arise.

172    The argument in Ground 1(b)(iii) is that Mr Dreyfus is entitled to have the Document produced to him by Mr Porter in accordance with the general law or in any event on request. I accept that argument to the extent that it refers to the Document as a thing, as opposed to the information contained in the document in which confidentiality may still be maintained vis a vis Mr Porter and Mr Dreyfus. Entitlement to access the information may not be determined until the Cabinet document exemption under the FOI Act is resolved. The review may nonetheless be conducted without Mr Dreyfus accessing the information contained in the Document. If the exemptions are not established then I have no difficulty concluding that Mr Dreyfus would have an immediate entitlement to access both the Document and the information contained in it, including for the purposes of discharging any obligation arising under s 11A(3) of the FOI Act. In that respect, even if the Commissioner was entitled to apply the test for whether there existed an “official document of a Minister” falling within the request at the time of her own decision, whether the Document met that description may well have depended upon the characterisation of the Document against the claimed exemptions.

173    Ground 2 alleges that the Commissioner erred in the exercise of her discretionary powers under s 55R as conditioned by s 55U of the FOI Act. That ground is upheld. The effect of the Commissioner’s reasons was that the power to require production of the Document or the provision of information about it was precluded because of the erroneous view she had formed that it was not an “official document of a Minister”.

174    Ground 2(b) alleges that the Commissioner failed to appreciate that on the proper construction of the FOI Act, information as to whether the Document was in Mr Porter’s possession and the circumstances in which it came to be so was relevant to the determination of whether the Document was an official document of the Minister. It seems to me that such an argument could be advanced if the question of the status of the Document as an “official document of a Minster” is one must that be determined according to facts and circumstances existing some time after the FOI request was received. In accordance with the answer given to Ground 1(a), the enquiry was not one that arose at any later time. On any view of the facts found by the Commissioner, the Document was an official document of a Minister because it had that status when Mr Porter received the request. The question of whether it met the statutory description was not to be revisited by reference to changed facts and circumstances existing at a later time, including changed facts or circumstances relating to possession.

175    The Commissioner appears to have asked herself whether access to the Document “could be provided”. That is not an irrelevant question per se, however it was not one to be explored by reference to whether the Document retained the status of an “official document of a Minister” at the time of the decision on review, and it is not to be substituted as a standalone test erected by the FOI Act.

176    Whilst the Commissioner in correspondence indicated that consideration may be given to s 24A of the FOI Act, the reasons do not disclose any consideration being given to its application. As explained above, s 24A is a provision that can operate on facts and circumstances existing at the time of a Commissioner’s review. Had s 24A been considered, the circumstance that the Document was last known to be in the custody of Mr Porter would be highly relevant on that enquiry because a reasonable search for it could not be confined to the physical office of successive Attorneys-General. The Commissioner did not explore issues potentially arising under s 24A because she instead asked the wrong question as identified in connection with Ground 1(a). As such, the Commissioner failed to recognise that the powers could be exercised to obtain the Document or information about the Document in order to determine whether the exemptions under s 34 and s 42 applied to it. The powers could also be exercised for the purpose of making findings relevant to the proper application of s 24A.

177    Questions such as whether access “could be provided” to something are otherwise best avoided, specifically because it distracts from the actual test in provisions like s 24A and from the questions of law that may otherwise arise in the case of an identified breach of obligations of the kind identified in these reasons.

178    Finally, I should confirm that to the extent that the Commissioner’s decision was based in part on the content of guidelines issued under or for the purpose of the FOI Act, those guidelines should not be followed to the extent that they are not consistent with the FOI Act on its proper construction. Nor should the Commissioner act on her own prior decision or prior decisions of the Tribunal based on a misconstruction of the FOI Act in respect of any issue arising on this appeal.

Orders

179    There will be orders allowing the appeal and setting aside the Commissioner’s decision. Mr Patrick’s application for review will be remitted to the Commissioner for determination according to law.

I certify that the preceding one hundred and seventy-nine (179) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.

Associate:

Dated:    21 March 2024