Page:Patrick v Attorney-General (Cth).pdf/23

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