Page:Patrick v Attorney-General (Cth).pdf/36

 128 Question 5 should therefore be answered "yes", although with one qualification. It will not always be the case that a former Minister having an official document in his or her custody will be in breach of a duty arising under the FOI Act. It is enough to observe that the former Minister has an obligation to deliver up the document into the possession of a person entitled to demand it. That includes the new incumbent in the office in connection with a document subject to an unresolved request for access under the FOI Act. If the document contains information that is said to be confidential as against the new holder of the office, then delivery up of the thing containing the information can occur subject to conditions maintaining that confidentiality. Cabinet documents may fall within that description, but in my view documents claimed to be subject to legal professional privilege are less likely to be so. That is because the privilege subsisting in documents held by a person in their official capacity as a Minister of the Commonwealth is not theirs to claim in any personal capacity. Rather, it may be claimed by the person holding the office from time to time.

The Archives Act

129 I will now explain why the Attorney-General's submissions about the operation of the Archives Act do not support any different conclusion on the questions of law concerning the proper construction of the FOI Act.

130 The overarching submission was that the legislative context of the FOI Act includes the operation of other legislative schemes dealing with the retention of and access to Commonwealth records. It was submitted that the FOI Act and Archives Act are "complementary" and should be considered together as a single regime. So much may be generally accepted, however, the manner in which the two enactments interact (if at all) must turn on the proper construction of each them. If there are inconsistencies between them, that may be resolved in accordance with well-established principle. I accept that the FOI Act should not be construed to identify obligations by implication if fulfilment of the obligation would constitute a breach of another irreconcilable law. But that is not the case here.

131 It was next submitted that public access to documents in the possession of a former Minister is governed by the Archives Act, such that it was both unnecessary and inappropriate to identify the temporal element in response to question 1 or to identify implied duties under the FOI Act in response to questions 2 and 5.

132 The objects of the Archives Act include "preserving and making publicly available the archival resources of the Commonwealth" and "to impose record-keeping obligations in Patrick v Attorney-General (Cth) [2024] FCA 268