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