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
