Page:Patrick v Attorney-General (Cth).pdf/5



CHARLESWORTH J

1 Mr Rex Patrick is a former Senator. On 3 February 2020, Mr Patrick made a request for access to a document under the Freedom of Information Act 1982 (Cth) (FOI Act). As revised and transferred, his application sought access to documents described as follows:

"Any correspondence, briefing materials and advice sent by the Attorney-General's Department to the Department of Prime Minister and Cabinet that contain advice in relation to the administration of the Community Sport Infrastructure Grant Program by the Former Minister for Sport the Hon Bridget McKenzie."

2 Mr Patrick was informed that there was one document that fell within the scope of that request. I will refer to it simply as the Document.

3 It is common ground that at the time of Mr Patrick's request under the FOI Act (FOI request), the Document fell within the statutory definition of an "official document of the Minister because (among other things) it was then in the possession of the Attorney-General, Mr Christian Porter. The revised request was received by Mr Porter on 3 April 2020. I will refer to that as the Request Date. Mr Porter refused access to the Document on the ground that it was subject to two exemptions under the FOI Act relating to Cabinet documents (s 34) and legal professional privilege (s 42). I will refer to that as the Refusal Decision.

4 Mr Patrick lodged an application for review of the Refusal Decision with the Australian Information Commissioner. My references to the Commissioner may from time to time include a reference to the delegate of the Commissioner who dealt with that review application.

5 During the Commissioner's review, Mr Porter ceased to occupy the office of Attorney-General. The office was then occupied by Senator the Hon MichaliaMichaelia [sic] Cash (Senator Cash), then for a short time by Senator the Hon Katy Gallagher (Senator Gallagher) and later, on a change of Government, by the Hon Mark Dreyfus KC, MP (Mr Dreyfus). Senator Gallagher had no dealings with the Commissioner. Senator Cash and Mr Dreyfus in turn told the Commissioner that the Document was not in their possession.

6 The Commissioner concluded that at the time of the decision on review, the Document was not in the possession of the Attorney-General and so did not meet the description of an Patrick v Attorney-General (Cth) [2024] FCA 268