request.
2. The primary Judge erred in finding that there existed implied duties under the FOI Act upon Ministers, including former Ministers, to preserve the subject matter of an FOI request (cf J [115]–[117]).
Particulars
- a. There is no basis in the text or context of the FOI Act to imply the numerous duties of uncertain content found by Her Honour to be imposed on current and former Ministers in relation to preserving the subject matter of an FOI request (cf J [108], [115], [116], [123], [128]). Contrary to the approach of Her Honour, these duties are not reasonably necessary to give effect to the scheme of the FOI Act.
- b. Instead, the FOI Act is part of a broader legislative regime, including the Archives Act, concerning the manner in which documents of Ministers and former Ministers are to be dealt with and handled, and the content of the right of access to documents provided by the FOI Act should be interpreted in light of, and together with, that other legislation and the conventions of responsible government. Her Honour's findings as to the operation of the Archives Act (J [129]–[146]) and the Cabinet Handbook (J [147]–[166]) were therefore in error.
- c. Nothing in the Appellant's arguments would permit the wilful destruction of documents in response to an FOI request, which is prohibited by other legislation (cf J [114]). That is not to render the FOI Act "subservient" to other legislation (cf J [132]), but rather to read the FOI Act in its context.
- d. Her Honour erroneously construed an office of a Minister as a perpetual, ongoing entity occupied by different individuals over time (J [121], [123]–[124], [128]). To the contrary, the office of a Minister is connected to the specific person appointed as a Minister (pursuant to s 64 of the Constitution) and ends upon the cessation of his or her appointment as a Minister. The FOI Act does not contemplate or make provision for the continuation of an FOI request directed to a particular Minister after that Minister ceases to hold office, unlike the legislative mechanism in place to continue an FOI request where an agency is abolished: s 4(6)–(7) of the FOI Act.
3. The primary Judge erred in finding that the Australian Information Commissioner (AIC) erred in the exercise of her discretionary power pursuant to s 55R of the FOI Act, and thereby erred in upholding Ground 2 (cf J [173]).
Particulars
- a. The primary Judge held that the AIC's exercise of power under s 55R of the FOI Act was affected by the AIC's erroneous view that the document was not an "official document of a Minister" (J [173]).
- b. The Appellant repeats the particulars to Ground One, above, in respect of the primary Judge's errors in her construction of the term "official document of a Minister".
Attorney-General (Cth) v Patrick [2024] FCAFC 126
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