document of the Minister". Section 11A(2) provides that the section applies subject to the Act. Section 11A(3) relevantly provides that the "Minister must give the person access to the document in accordance with this Act, subject to this section".
51 The text of these sub-sections indicates that the question whether a document is an "official document of the Minister" is to be determined as at the time of the request for access. The requirement in s 11A(3) to give access to a document is enlivened when the conditions in s 11A(1) are fulfilled, i.e. an applicant has made a request in accordance with s 15(2) for (relevantly) "an official document of the Minister", and paid any applicable charge. That is clear from the terms of s 11A(1), which provides that s 11A (including sub-section (3)) "applies" when those conditions are met. There is no doubt that "the document" to which access must be given pursuant to s 11A(3) is the "official document of the Minister" for which a request has been made. Section 11A(1)(a) refers to a request for access to an official document of the Minister rather than, for example, a request for access to a document. This suggests that the question whether a document is an official document of the Minister, and therefore whether s 11A(3) applies to the document, is capable of determination – and is to be determined – at the point in time when the request is made.
52 The definition of "official document of the Minister" is consistent with this construction. The definition refers to a document that is, relevantly, "in the possession of the Minister concerned". For the purposes of s 11A(1), the "Minister concerned" must be the Minister to whom the request has been made in accordance with s 15(2), namely, in this case, Attorney-General Porter.
53 It is notable that in the scheme of the FOI Act, s 11A(3) is the only express source of a requirement to grant access to a document following a request for access. The requirement to grant access is not enlivened by a decision of the agency or Minister, but by the operation of s 11A(3) (which comes into operation immediately when the conditions in s 11A(1) are fulfilled, not at some later time when a decision is made on the request). Section 11A(3) applies "subject to this Act" (s 11A(2)), so access to a document need not be granted if, for example, an exemption applies; but if no exemption applies and the agency or Minister does not otherwise have the power to refuse access, s 11A(3) remains the source of the requirement to grant access.
54 These points are reinforced by a comparison with the text of sub-sections (4), (5) and (6) of s 11A, which refer to particular points in time. Sub-section (4) relevantly provides that the Minister is not required to give the person access to the document at a particular time if, at that
