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 limits of the power. Importantly, nothing in s 27 authorises the imposition of an obligation to transfer to the Archives a document that has the status of a “current Commonwealth record”, namely a record that is required to be available for the purposes of a Commonwealth institution (other than purposes of the Archives Act itself).

144   The Attorney-General submitted that GRA 38 in conjunction with s 27 of the Archives Act imposed an obligation on outgoing Ministers to transfer all Commonwealth records forming part of the archival records of the Commonwealth to the National Archives upon the Minister leaving office. That submission ignores the express reference in s 27 of the Archives Act to a document falling within the definition of a “current Commonwealth record”. In light of s 27 of the Archives Act, GRA 38 is not to be interpreted so as to require an outgoing Minister to transfer to the Archives upon leaving office a document that is required to be readily available for the purposes of a Commonwealth institution. Under s 27(3), such a document need only be transferred as soon as reasonably practicable after it is no longer required to be readily available, and in any event within 15 years of it coming into existence. Whether a document is required to be readily available will of course depend on the facts of the particular case. The Attorney-General’s submissions on this appeal did not address the question of whether a document required to be readily available for the purposes of discharging an obligation arising under the FOI Act could meet that description. Instead, the submission rose from the bootstraps of the words in [12] of GRA 38 so as to avoid a construction of the FOI Act that precluded the imposition of the duties altogether. The duties that arise by necessary intendment under the FOI Act are not inconsistent with obligations under the Archives Act and it is therefore unnecessary to consider how any such inconsistency might otherwise have been resolved.

145   The Attorney-General’s submissions concerning the interrelation between the Archives Act and the FOI Act at times appeared to proceed from an assumption that the transfer of a document from a Minister into the care of the National Archives would result in the Minister no longer having the document within his or her effective control or constructive possession, including for the purposes of dealing with an unresolved request for it under the FOI Act. It is not clear how that could be so, given s 30 of the Archives Act. It provides:

30 Commonwealth records to be available to Commonwealth institutions

(1) The Archives must ensure that all Commonwealth records transferred to its care from a Commonwealth institution are made available, as reasonably required, for use by, or at the direction of:

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