Page:Patrick v Attorney-General (Cth).pdf/48

 174 Ground 2(b) alleges that the Commissioner failed to appreciate that on the proper construction of the FOI Act, information as to whether the Document was in Mr Porter's possession and the circumstances in which it came to be so was relevant to the determination of whether the Document was an official document of the Minister. It seems to me that such an argument could be advanced if the question of the status of the Document as an "official document of a Minster" is one must that be determined according to facts and circumstances existing some time after the FOI request was received. In accordance with the answer given to Ground 1(a), the enquiry was not one that arose at any later time. On any view of the facts found by the Commissioner, the Document was an official document of a Minister because it had that status when Mr Porter received the request. The question of whether it met the statutory description was not to be revisited by reference to changed facts and circumstances existing at a later time, including changed facts or circumstances relating to possession.

175 The Commissioner appears to have asked herself whether access to the Document "could be provided". That is not an irrelevant question per se, however it was not one to be explored by reference to whether the Document retained the status of an "official document of a Minister" at the time of the decision on review, and it is not to be substituted as a standalone test erected by the FOI Act.

176 Whilst the Commissioner in correspondence indicated that consideration may be given to s 24A of the FOI Act, the reasons do not disclose any consideration being given to its application. As explained above, s 24A is a provision that can operate on facts and circumstances existing at the time of a Commissioner's review. Had s 24A been considered, the circumstance that the Document was last known to be in the custody of Mr Porter would be highly relevant on that enquiry because a reasonable search for it could not be confined to the physical office of successive Attorneys-General. The Commissioner did not explore issues potentially arising under s 24A because she instead asked the wrong question as identified in connection with Ground 1(a). As such, the Commissioner failed to recognise that the powers could be exercised to obtain the Document or information about the Document in order to determine whether the exemptions under s 34 and s 42 applied to it. The powers could also be exercised for the purpose of making findings relevant to the proper application of s 24A.

177 Questions such as whether access "could be provided" to something are otherwise best avoided, specifically because it distracts from the actual test in provisions like s 24A and Patrick v Attorney-General (Cth) [2024] FCA 268