- (a) that institution; or
- (b) a Commonwealth institution that has succeeded to the relevant functions of that institution.
- Note: Arrangements under section 64 for a person (other than the Archives) to have custody of a Commonwealth record must enable the Archives to meet its obligations under this subsection.
(2) A record that has been in existence for more than 15 years must not be made available to a Commonwealth institution under subsection (1) in a manner that involves its leaving the custody of the person who has the custody of the record, except as necessary for the proper conduct of the business of the Commonwealth institution.
146 I do not accept that maintenance of possession of a document in accordance with the duties I have identified would be contrary to any obligation arising under the Archives Act, nor do I consider the Archives Act to suggest any obvious policy consideration tending against the imposition of duties I have identified to arise by necessary intendment under the FOI Act. The submissions about the Archives Act in its application to Cabinet documents have the additional flaws discussed below.
Cabinet documents
147 Section 34 of the FOI Act contains general rules and exceptions for determining whether a document falls within the "Cabinet document" exemption. I am not here concerned with its practical application in any particular case. It is enough to observe that s 34 reflects and recognises the role and importance of confidentiality in Cabinet deliberations.
148 At general law, the confidentiality in Cabinet deliberations is a well-established foundation for a claim of public interest immunity to resist the compulsive production of relevant documents in legal proceedings and their use in evidence. In Sankey v Whitlam (1978) 142 CLR 1, Gibbs ACJ explained the justification for documents falling within this class attracting immunity from disclosure, albeit that the protection was not absolute. The object of the protection, his Honour said (at 40), was to ensure the proper working of government, it being "inherent in the nature of things" that a government at a high level cannot function without some degree of secrecy. In Attorney-General v Jonathan Cape Ltd (1976) QB 752 (cited by Gibbs ACJ in Sankey at 41) Lord Widgery CJ observed (at 767) that the degree of protection could not be determined by a single rule of thumb. His Lordship continued (at 770):
The Cabinet is at the very centre of national affairs, and must be in possession at all times of information which is secret or confidential. Secrets relating to national security may require to be preserved indefinitely. Secrets relating to new taxation
