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.
Questions of law 2 and 5
102 Question 2 concerns the obligations owed by a Minister (including obligations of an outgoing Minister) in relation to a document that falls within the terms of a request made under s 15 of the FOI Act and that was, at the time of the request, an official document of the Minister (specifically in circumstances where the document is the subject of a pending review by the Commissioner under Pt VII of the FOI Act). The question is whether the Minister (including an outgoing Minister) has an obligation to take such steps as are necessary to retain the document in the custody of the Minister (from time to time) for the purpose of the review and/or an obligation to not deal with the document in such a way as to frustrate the provision of access to the document in accordance with the FOI Act "or to frustrate the appeal". I understand the latter part of the question to refer to the frustration not only of the exercise of a right of appeal to this Court but also the frustration of a right of review under Pt VII.
103 Question 5 is related. It is whether a "current Minister" is entitled to access 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 (relevantly) question 2.
104 The two questions may be considered together.
