44 The Attorney-General contends that the time for assessing whether a document is an "official document of a Minister" (to which access must be provided) is not just the time of the FOI request, but also the time of the decision on the FOI request (including a decision on review). In other words, the Attorney-General contends that the question whether a document is an "official document of a Minister" is to be determined both at the time the request for access is made and at the time that a decision is made whether to grant access to the document. The Attorney-General submits that, as a practical matter, access can only be granted to documents actually in the possession of the Minister at the time of the decision. Further, he submits that successive Ministers hold different offices, meaning there is no expectation that a document that was in the possession of a former Minister will be in the possession of a subsequent Minister (especially a Minister of a different government).
45 The Attorney-General submits that: a document is only an "official document of a Minister" if (relevantly) it is in the "possession" of that Minister; "possession" is essentially a practical concept – a person can only produce what they actually have possession of; thus, constructive possession requires that a person have an immediate right of access to the document (citing Beesley v Australian Federal Police [2001] FCA 836; 111 FCR 1 at [72], [75] per Beaumont J); this point illustrates the need to determine whether the Minister has possession at the time of the decision on the FOI request (not just at the time of the request), because the effect of an FOI decision is to require a person to actually produce and hand over documents; there would be little point in making a decision to grant access to a document, on the basis that it was in a former Minister's possession at the time of the FOI request, without assessing whether the new Minister still has possession of the document at the time of the decision and is actually able to produce it.
46 The Attorney-General submits that the primary judge sought to solve this "conundrum" by implying duties on former Ministers to preserve the subject-matter of an FOI request (Reasons, [100]). However, the Attorney-General submits that there is no proper basis for those implications (referring to his submissions in relation to ground 2).
47 The Attorney-General submits that his approach to the temporal question is consistent with the following provisions in the FOI Act, which recognise that access to a document can and is affected by circumstances occurring between the FOI request and the decision on access (including a decision on merits review). The Attorney-General makes the following submissions:
