Page:Patrick v Attorney-General (Cth).pdf/26

 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 Tribunal's powers as "linked to the request", the Deputy President continued (at [63]):

….… [sic] 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

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