respect of Commonwealth records". The parties are in dispute as to whether the Document subject to Mr Patrick's request is a "Commonwealth record". Mr Patrick submits that it is not. There is support for that contention in Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1 at [79]–[83] and I accept it. The Attorney-General's submissions will nonetheless be considered (and rejected) on an assumption that a document held by a Minster (and not also by an agency) is a "Commonwealth record" as defined in the Archives Act. But as Hocking illustrates, the Archives Act does not operate on all documents to which the FOI Act may apply, and vice versa. That of itself is a reason not to read the FOI Act as in any way subservient to the operation of the Archives Act except where the express provisions of either enactment require that approach.
133 Under s 3C of the Archives Act, the Director-General may determine that a specified Commonwealth record is part of the "archival resources of the Commonwealth". A determination made under s 3C is not a legislative instrument. It an administrative act done in writing that may be varied or revoked from time to time. That is a reason not to approach questions of construction under the FOI Act as if they were influenced or dictated to by the terms of a determination or authorisation made under the Archives Act. The meaning of the FOI Act does not shift and change according to varying administrative decisions made under a different law, even if those decisions have legal force. I accept, however, that the practical operation of a different law may affect the factual circumstances in which the FOI Act is to be applied.
134 Division 2 of the Archives Act is titled "Dealing with Commonwealth records". Under s 24(1) it is an offence for a person to engage in conduct that results in the destruction or other disposal of a Commonwealth record, or the transfer of its custody or ownership, or its damage or alteration. That offence is subject to Pt V of the Archives Act. Section 24(2) relevantly provides that the offence created in subs (1) does not apply to anything done (a) as required by law; or (b) with the permission of the National Archives or in accordance with a practice or procedure approved by the National Archives. Plainly enough, a thing done "as required by law" may include a thing required to be done under the FOI Act, including the transfer of the custody of a document, or its retention for the purpose of discharging obligations under it.
135 Section 27 of the Archives Act applies to a Commonwealth record that is in the custody of a Commonwealth institution (other than the National Archives) and that has been determined to
