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