Minister (from time to time) for the purpose of the IC Review; and/or
- d. not deal with the document in such a way as to frustrate provision of access to the document in accordance with the FOI Act or to frustrate the appeal?
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5. Is the current Minister 'entitled to access to' a document that has been transferred out of the custody of the Commonwealth by a former Minister in breach of any of the duties or obligations described in questions 2, 3 and 4 above?
6 On the proper construction of the FOI Act, can information as to whether the document was in a former Minister's possession, and the circumstances in which it came to be in their possession, be relevant to the determination of the question of whether the document is an 'official document of the Minister'?
…
56 There is a dispute as to whether those questions truly arise, the Attorney-General submitting that they are hypothetical questions that need not be answered in order to determine if the Commissioner erred in the manner alleged in the grounds. That is not a valid criticism. In determining whether the Commissioner erred in the manner alleged, it is necessary to consider whether the Commissioner asked herself the wrong question and, relatedly, whether she misconstrued the FOI Act. As will become apparent, resolution of the grounds of appeal has required the Court to answer the second and fifth questions of law. I do not accept that they are hypothetical or merely advisory in nature.
57 The parties' submissions focussed principally on the question of law before turning to the grounds, and I will do the same.
THE QUESTIONS OF LAW
58 The Commissioner addressed the question of whether the Document was an "official document of a Minister" by enquiring into a state of affairs as they existed at the time of her own decision, rather than a state of affairs existing at the time of the FOI request, so asking herself whether the document was in the possession of Mr Dreyfus as at 28 February 2023, rather than in the actual or deemed possession of Mr Porter as at 3 April 2020. Whether the Commissioner acted on a misconception of the law in that respect depends on the answer to the first question of law which in my view is partially informed by the answers to questions 2 and 5.
