Page:Patrick v Attorney-General (Cth).pdf/22

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