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 in the hands of the Secretary because it is not properly characterised as a Cabinet document, then that will have implications as to who is entitled to have care and control of it and access to information contained in it.

161 None of that detracts from the imperative that confidentiality in a document in which a disputed claim under s 34 of the FOI Act is made should be maintained throughout the statutory process so that the subject matter of the decision-maker's own claim about that status can be preserved, pending its final resolution. In conditioning the Commissioner's power under s 55U, the FOI Act seeks to ensure that the information be divulged only to the limited extent necessary for the Commissioner to perform statutory functions on a review. The provisions of the FOI Act anticipate that the Commissioner may access a document so that its status can be determined. Nothing in the Cabinet Handbook can be erected as an obstacle to the exercise of that power. To interpret it in that way would to vest in the Executive the final determination that a document is a Cabinet document to which the Cabinet Handbook applies so as to put it out of the reach of the FOI Act regime.

162 Nor does anything in the Cabinet Handbook erect an obstacle to a proper person having access to a document for the purpose of preparing an affidavit of the kind referred to in s 55U of the FOI Act. There is no reason why that person could not be a member of a former Government in which the confidentiality resides.

163 I do not consider that the circumstance of a change of Government presents any real difficulty to the processes of review and appeal concerning the status of a document as a Cabinet document where the party to the review is not a member of the relevant Cabinet. The obligations of the new Minister as a party to a review may be fulfilled by obtaining affidavit evidence from a former incumbent or Government leader. Nor do I have any difficulty with the notion that the former incumbent or Government leader may assert a right to be heard on the characterisation of the document and seek to be joined as a party under s 55A on the basis that his or her interests may be affected by the outcome. But in accordance with the proper construction of the FOI Act those persons cannot do any act or thing that would interfere with the right of the requesting party to have the claim determined according to law.

164 A consequence of the proper construction of the FOI Act is that the conundrum of a Minister not having "possession" of a document in order to grant access to it is a false conundrum, at least to the extent that it related to documents claimed to be Cabinet documents. For if a document is correctly determined on review not to be a Cabinet document then there is no Patrick v Attorney-General (Cth) [2024] FCA 268