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 warrant for saying that the machinery referred to in the Cabinet Handbook stands in the way to the Minster accessing it for the purpose of discharging the obligation under s 11A(3) of the FOI Act. The same may be said of the Commissioner's power to directly grant access, standing in the shoes of the original decision-maker.

165 It is for those reasons that I do not accept that the proper construction of the FOI Act and the implication of the rights and obligations identified in these reasons depends upon the content of the Cabinet Handbook, whether considered together with GRA 38 or not.

166 The submissions with respect to Cabinet documents do not otherwise present a reason for answering any one of the questions of law differently.

GROUNDS OF APPEAL

167 The grounds of appeal may now be briefly decided against all that has been said in the preceding pages.

168 Ground 1(a) alleges that the Commissioner erred by concluding that the Document was not an "official document of a Minister" by reference to facts and circumstances she found to be in existence at the time of her own decision. In accordance with the answers given to the questions of law, that was an error because the test for whether a document is an official document of a Minister was to be applied by reference to facts and circumstances in existence at the time that Mr Patrick's FOI request was first received by Mr Porter. There could have been no question that the Document met the description of an official document of a Minister at that time. It was the only document in the cohort of documents in fact captured by the request. The obligation of the Commissioner was to identify whether there existed a basis to refuse access to it, specifically but not exclusively by reference to the exemptions claimed in the decision under review. The question of any asserted loss of "possession" of the document arose to be examined in accordance with other provisions of the FOI Act.

169 Ground 1(b) commences with the words "further and in any event". However, the issue raised by that ground only arises if the temporal question raised in Ground 1(a) were to be decided differently. Given the answer I have given to Ground 1(a) the issue in Ground 1(b) does not arise.

170 However, for completeness, if I am wrong in my conclusion with respect to Ground 1(a), I would uphold the argument in Ground 1(b) to the extent that Mr Porter was under an implied obligation under the FOI Act to take such steps that were necessary to not deal with the Patrick v Attorney-General (Cth) [2024] FCA 268