proposals may be of highest importance until Budget day, but public knowledge thereafter. To leak a Cabinet decision a day or so before it is officially announced is an accepted exercise in public relations, but to identify the Ministers who voted one way or another is objectionable because it undermines the doctrine of joint responsibility.
149 On this appeal, the Attorney-General identified (correctly) that the Document in issue in the present case "was claimed to be exempt as a Cabinet document". As mentioned above, it was submitted that such documents in the hands of outgoing Ministers were subject to the regime provided for in the Archives Act and subject to conventional arrangements designed to ensure Cabinet confidentiality in accordance with legal principle. In accordance with those arrangements, it was submitted, "such documents must be returned to Cabinet Division or destroyed". The arrangements are those mentioned in GRA 38, as well as a document titled "Cabinet Handbook, a publication of the Cabinet Division of the Department of Prime Minister and Cabinet". The Court was provided with a link to the Cabinet Handbook, directing it to the 15th edition. Reference was also made to the 13th edition.
150 The Attorney-General's contention as to what "must be done" with "such documents" has two problems. First, as discussed above, there is a real question as to whether any administrative instrument, decision or practice on its terms creates a legal obligation to do something with a document that falls within the scope of a pending access request under the FOI Act and that is claimed to be a Cabinet document. What "must" be done with "such documents" depends on the proper construction of the FOI Act. That is because administrative arrangements and conventions cannot be inconsistent with the rights and obligations arising under a statute. As I have mentioned, those rights include the right to have a refusal decision based on a claimed exemption under s 34 of the FOI Act reviewed on its merits. There is no reference to those rights in GRA 38 or in the Cabinet Handbook. I do not understand them to evince any intention to require something to be done that would frustrate them. In this respect the submissions of the Attorney-General descended at times into circularity, presupposing that the Document was a Cabinet document for the purposes of the Cabinet Handbook, the Archives Act and the FOI Act. However, whether the Document is exempt under s 34 of the FOI Act is one of the very questions Mr Patrick has a right to have determined.
151 Section 55U of the FOI Act conditions the powers of the Commissioner to require production of a document that is claimed to be an exempt document under (relevantly) s 34. Section 55U(3) provides that if the Commissioner is not satisfied by evidence on affidavit or
