The asserted temporal element
79 The temporal question is whether Mr Porter's ceasing to hold office was a factual event that could change the status of the Document to one that fell within the definition of an official document of a Minister to one that did not.
80 Mr Patrick submitted that it would be contrary to the objectives of the FOI Act to construe its provisions in a way that permitted revisitation of the question of whether a document was an "official document of a Minister" according to facts and circumstances existing at a time after the Request Date (including at a time of a decision on review). Such a construction, he submitted, would enable a Minister (and an agency) who became aware of an FOI request in relation to a particular document to take steps to remove the document from their "actual or deemed possession" (including by destroying it), thus avoiding the operation of all other provisions of the FOI Act to it. He submitted that that approach would be contrary to a presumption of statutory construction that legislation is not to be construed in a way that would enable a person to take advantage of their own wrong (referring to P Herzfeld and T Prince, Interpretation (2nd ed, Thomson Reuters (Professional) Australia Limited, 2020) p 258 [9.720] and the cases there cited).
81 There is a danger in that latter argument descending into circularity. Whether or not the deliberate loss or destruction of a document is a "wrong" must itself turn on the proper construction of the FOI Act. Moreover, the express objectives of the FOI Act are not to provide for an absolute right of access. Rather, as emphasised in Kline, the FOI Act seeks to strike a balance between competing public interests. Having said that, I accept that Parliament could not have intended that a Minister or agency could respond to a request complying with s 15(2) by destroying the document described in the request, and then communicating the news that there exists no official document of a Minister falling within its scope. As will be explained, there is no express provision in the FOI Act providing for such an outcome and there is no proper basis to discern any such intention by necessary implication.
82 Apart from the postulated intentional wrong-doing, it was submitted that the objective events occurring in Mr Patrick's own case illustrated the mischief that arises from the interpretation of the FOI Act adopted by the Commissioner, because an event so commonplace as a Minister ceasing to hold office would result in all pending access applications under the FOI Act being refused because of that change, other than in cases where the outgoing Minister transferred actual possession of documents falling within the scope of the request to the new holder of the office.
83 Mr Patrick otherwise relied on four contextual considerations.
84 First, he submitted, a temporal limitation arose implicitly from ss 11, 11A(3) and 15(1), considered together. A request may only be made under s 15(1) for (relevantly) an official document of a Minister, and so must necessarily be in relation to a document that is at that time in existence and at that time in the Minister's actual or deemed possession. Subject to exceptions, the general rule imposing a duty to grant access imposed under s 11A(3) is one that relates to that very document. With some qualifications, I accept that submission. Read together, the two provisions evince an intention that from the point in time that a request is made in relation to a document that at that time falls within the definition of an "official document of a Minister", the general rule is that the person requesting the document has a legal right to access that very document and the Minister has a legal obligation to provide access to it, unless there is a provision in the FOI Act providing a lawful basis for the Minister to refuse to grant access. The qualification is that in some instances a request may be refused irrespective of whether a document meets the description of an official document of a Minister, including instances captured by s 7 or s 24 discussed above.
85 Next, Mr Patrick submitted that the temporal limitation for which he contends is necessary because s 24A(1)(b)(ii) of the FOI Act (extracted at [25] above) would otherwise have no meaningful work to do. He submitted that it would be unnecessary to enact s 24A in relation to a document in respect of which there was otherwise no obligation to grant access. In the case of a document that did not exist, the request could be met with a response that there are no documents meeting the description of an official document of a Minister to which the rule in s 11A(3) could apply. Resorting to s 24A(1)(b)(ii) in that circumstance would be unnecessary.
86 In Chu v Telstra Corp Ltd (2005) 147 FCR 505, Finn J traced the provenance of s 24A, identifying its genesis in the Senate Standing Committee on Legal and Constitutional Affairs' Report Operation and Administration of The Freedom of Information Legislation of 1987. At that time, his Honour said, the FOI Act contained no provision enabling an agency to respond to a request for access to a document which the agency may have had good reason to believe that it possessed, but which could not be located. The amendments based on the Committee's Report included provision for review by the Tribunal of a decision to refuse access under s 24A: FOI Act, s 55(1)(a), and the Tribunal in turn was empowered to require an agency to conduct further searches for the document.
87 Considered in its proper context, s 24A lends some support to Mr Patrick's argument that the identification of a document as an official document of a Minister depends on facts and circumstances existing at the time that a request under s 15(2) of the FOI Act is made. Section 24A may be understood as in the nature of a procedural exception to the general rule that would otherwise mandate access under s 11A(3) to a document described in an FOI request. It is to be applied having regard to facts and circumstances existing at the time of the decision. It may naturally be understood as concerned with a circumstance in which a document that was an official document of a Minister at the Request Date has subsequently become lost (s 24A(b)(i)) or has ceased to exist (s 24A(b)(ii)). It may also be understood as providing an independent basis for refusing to provide access to a document thought to exist and known to be in a Minister's possession, but which cannot be found, or that has been determined (after the Request Date) not to exist. It may also apply in cases where the question of whether or not a requested document is in the possession of a Minister cannot be objectively determined.
88 It is important to recognise that s 24A(1)(a) does not extend to all circumstances in which a document is thought to have been (or known to have been) lost or destroyed. On its terms, it requires that all reasonable steps be taken to find the document. The search must be genuine, in the sense that it is anticipated that something may be found in the places that are searched and that no basis exists to search another place. That requirement could not be fulfilled in a case where the Minister knows that the document has been destroyed after a request for it under the FOI Act has been made.
89 The Attorney-General decried such hypotheses as extreme, and indeed it is. As discussed in relation to the remaining grounds of appeal, the destruction of a document subject to a pending request under the FOI Act is so antithetical to its objectives that, absent express provision, this Court should avoid a construction that contemplates such an outcome. The point for present purposes is that s 24A cannot on its terms provide a lawful basis for refusal to grant access to a document that is known to have been destroyed after an FOI request has been received.
90 There is otherwise nothing in s 24A to suggest that the appropriate time for asking whether a document is an official document of a Minister is the time of a decision as to whether or not access should be granted to it. If the question of a whether a document is an official document of a Minister is to be determined on the basis of facts existing at the time of the decision, then it is difficult to see what function s 24A(b)(ii) is intended to serve in the scheme as a whole. I accept Mr Patrick's submissions to that extent, but it remains necessary to identify whether there is anything in the Attorney-General's submissions that would favour a different constructional choice.
91 Next, Mr Patrick submitted that s 16 and s 17 of the FOI Act indicated that there was a temporal limitation to the enquiry. Section 16 makes provision for the transfer of a document from an agency (there defined to include a Minister) to another agency where the document is in the possession of that other agency. Whilst s 16 requires the question of possession to be considered at the time that an access request is received, to my mind it does not follow that the question could not or should not be revisited at a later time on the basis of facts existing at that later time. The argument based on s 17 of the FOI Act was similarly unconvincing. It prescribes circumstances in which an agency shall deal with a request for access to certain intangible records as if it were a written document and provides that the FOI Act applies as if the agency had such a document in its possession. It was submitted that the word has would have been used if the intention was for the question of possession to be answered at the time of the decision to grant or not grant access. That is not a compelling explanation for the choice of the past-tense word had. The choice is grammatically explained by deeming language of s 17 as a whole and the subject matter with which it deals. I garner little assistance from s 16 and s 17 in addressing the temporal question.
92 The parties' submissions otherwise focussed on those provisions of the FOI Act that did or did not have an obvious (or not so obvious) temporal component. But none of them supplied an answer to the question of whether the definition of an "official document of a Minister" has a temporal component in the various contexts in which the phrase is employed. For example, it is common ground that the language in s 11A(4) to s 11A(6) require the question of whether a document is exempt or conditionally exempt to be determined by reference to facts and circumstances as they exist "at a particular time". As the reasons of White J in Patrick illustrate, different exemptions may nonetheless have different temporal elements, including temporal elements that arise by necessary implication and that are not immediately obvious on the text alone.
93 Mr Patrick invited the Court to adopt the approach of Deputy President Forgie of the Tribunal in Lobo v Department of Immigration and Citizenship (2010) 116 ALD 639. In that case, the Deputy President concluded that the Tribunal's jurisdiction to review a decision of an agency to refuse access to documents of the agency did not extend to documents that came into the agency's possession after the receipt of a request for access had been made. The Deputy President said that the documents that were the "documents of an agency" for the purpose of determining a request for access was "the criterion that remains static throughout the review process". By that phrase, the Deputy President meant that there was a cohort of documents to be considered against the terms of the FOI Act, to be identified and fixed once and for all by reference to the facts as they existed at the date that the request is received, and that cannot later expand in number as more documents come into the possession of the agency. She said that as the agency's obligation under s 11A(3) of the FOI Act was confined to documents in its possession at the time of the request, the Tribunal's powers on review were similarly confined (at [61]).
94 The Deputy President went on to say that a decision as to whether to provide access to those particular documents depended upon "matters that may change", both in respect of the content exemptions and the procedural exceptions of the kind I have referred to earlier in these reasons. After describing the Tribunal's powers as "linked to the request", the Deputy President continued (at [63]):
…. Whether the agency fulfils its correlative duty to provide access in accordance with the FOI Act depends on matters pertaining to the particular request and agency to which it is made. Those matters are the subject of evidence. They include workload considerations and exemption provisions. Like the personal circumstances of a claimant for a social security benefit, those are matters that may change. A claim that a document is exempt, for example, may longer be sustainable when the decision is reviewed because of changing events. A document thought to have been mislaid might have been found. An announcement might have been made and deferment of access under s 21 might no longer be justifiable.
95 The reasoning in Lobo highlights an obvious aspect of the regime established under the FOI Act: much of the law establishing exemptions and exceptions pre-supposes the existence of one or more documents to which that law can (indeed must) be meaningfully applied. The regime operates in a practical reality in which there must first be an assessment as to whether there is a document falling within the scope of the request that is in the possession (actual or deemed) of the person responsible for either granting access to it or for identifying and asserting any lawful basis for refusing access to it. In the case of a request that does not adequately describe documents, access may be refused under s 24 and the process may end there. But in the case of a person holding the office of a Minister, that assessment otherwise involves not only the fact of possession (or facts giving rise to deemed possession) but also whether the document is possessed in his or her official capacity. It is only after that assessment has been made that the provisions creating exceptions and exemptions to the general right of access under s 11A(3) can be considered.
96 As to temporal considerations, consistent with the reasoning and outcome in Lobo (which I consider to be correct) the FOI Act would be unworkable if there existed an ongoing obligation to consider the application of its provisions to all documents continually coming into the possession of an agency or Minister for the first time after an FOI request is made. The more sensible construction is that the population of documents falling within the scope of the request is to be determined by reference to facts and circumstances existing at the time that the request is made such that the cohort of documents subject to that assessment is to remain static. To my mind it would be a strange construction if the cohort of documents to be considered against the provisions of the FOI Act could be temporally static in the sense that it could not later expand, but fluid in the sense that it could later shrink. Whilst Lobo is not directly on point, and whilst it is not concerned with precisely the same temporal question, the reasoning is sound and I would adopt the same approach as a step in resolving the present question of law.
97 Section 24A may nonetheless operate so as to permit a Minister or agency to refuse to grant access to a document within that cohort, provided that the preconditions for the exercise of that power are met. The existence of those pre-conditions may be assessed by reference to facts and circumstances existing at the time that a decision to refuse access is made (including a decision on review). As I have already mentioned, s 24A may also apply in cases where the question of possession cannot be objectively ascertained, but a document is nonetheless believed to be in the possession of the Minister concerned. That is a sensible construction of the FOI Act that accords with its objectives. It remains necessary to identify whether it is the only such construction.
98 The Attorney-General submitted that the FOI Act must be construed in the context of a broader legislative regime concerning the handling, care and access to public documents including the Archives Act which operates both to prohibit the destruction of public records other than in accordance with its terms and require the transfer of certain records to the National Archives where a different public access regime applies. There is no evidence in this case that the Document was transferred by Mr Porter or any other person to the National Archives, nor is there evidence that the Document has been destroyed in accordance with or contrary to the Archives Act or any other law. But it is necessary to consider the provisions of the Archives Act because of submissions concerning its interaction with the regime established under the FOI Act and the nature of the mischief said by Mr Patrick to arise if his submissions are rejected. That will be done in the context of answering the remaining questions of law.
99 Ultimately, I have concluded that the question of whether a document referred to in an FOI request meets the description of an "official document of a Minister" (if it arises in the particular case) is a question that must be resolved by reference to facts and circumstances existing at the time that a request under s 15(2) is received in respect of it. The status of the document under the definition is not to be revisited and revised by reference to changed facts and circumstances following the date that the request is received. However, as I have said, access to a document to which an FOI request relates may nonetheless be refused in the circumstances described in s 24A of the FOI Act, applied by reference to facts and circumstances arising after a request is received. It is in that context that loss or destruction of a document captured by the request falls to be considered. As explained earlier, access to a document that may be captured by a request may also be refused on bases that do not depend on any finding about whether it is so captured, or whether or not it has been lost or destroyed.
100 I am urged by the Attorney-General to avoid that construction because it may create a situation in which Ministers may have legal obligations under s 11A(3) to provide access to documents that are no longer in their physical control or possession at the time of their own decisions or decisions on external review. In other words, it may result in there being an obligation that cannot be fulfilled for reasons that are not the fault of the Minister concerned. That argument can be rejected for reasons given in the course of answering the remaining questions of law. In short, there may be an answer in s 24A of the FOI Act to the conundrum in the case of accidental loss or destruction of a document falling within a request, depending on the facts. The asserted conundrum does not otherwise tell against the imposition of the duties referred to below. Rather, compliance with those duties will avoid the conundrum arising at all. Deliberate non-compliance may constitute a refusal to comply with a legal obligation or an interference with the rights of the requesting party. That is not a "conundrum" in a constructional sense. Rather, it is a factual conundrum arising because of a breach of duties owed under the statute, properly construed.
101 Submissions of the Attorney-General concerning the special status of Cabinet documents will be addressed in the pages that follow.