General, Mr Dreyfus. The Commissioner referred to enquiries that had been made of Senator Cash, Mr Dreyfus (each through the AGO), the Department and the National Archives. On the basis of those enquiries, the Commissioner concluded that the Document had not been transferred to or received by any of them. She said (at [23]) that she was satisfied that "staff within the Office of the current Attorney-General were unable to locate the document at issue in this IC review and that staff undertook all reasonable searches to locate any relevant documents within the scope of the FOI request and no relevant documents were identified".
45 The Commissioner observed that under s 55K of the FOI Act she could only make a decision on the review that could be made by the current Attorney-General. She said that she could not make a decision to release a document that was not in the current Attorney-General's possession. The Commissioner said that that issue was also relevant to a request made by Mr Patrick for the exercise of powers under s 55R of the FOI Act. On that topic, she went on to say:
27. During the IC review process in their submissions of 15 March 2022, the applicant requested that notices should be issued under s 55R of the FOI Act to certain individuals who 'could be in possession of' the document at issue in this IC review, including the Secretary of the Attorney-General's Department, the Secretary of Prime Minister and Cabinet (PMC), former Attorney-General Porter and former Prime Minister Morrison and for the Attorney-General to seek access as they may be entitled. No notice was issued during the IC review process.
28. There would be no utility in seeking production of the document as that does not overcome the requirement that the document be an official document of a Minister to which the access provision in s11A applies. The FOI Act does not make provision for or contemplate, the transfer by the OAIC of possession of a document at issue to the current Attorney-General.
(footnotes omitted)
46 The Tribunal's reasons make no reference to s 24A of the FOI Act.
ISSUES ARISING ON THE APPEAL
47 The amended notice of appeal dated 3 May 2023 (ANOA) contains three grounds of appeal. The third ground was not pressed.
48 Ground 1 is to the effect that the Commissioner erred in law in holding that the Document was not an "official document of the Minister".
49 Ground 2 is to the effect that the Commissioner erred in law in declining to exercise the powers conferred under s 55R and/or s 55U of the FOI Act on the basis that there would be no utility in their exercise.
50 Ground 1 has two aspects, expressed at 1(a) and 1(b) of the ANOA.
