ground 1. In our view, whether or not the primary judge was correct to imply those duties (a matter that we deal with below), the construction we prefer is the correct construction, for the reasons set out above.
65 For these reasons, in our view, the correct construction of the relevant provisions is that the time for assessing whether a document is an "official document of a Minister" is the time the request for access is made (and only that time). The primary judge was correct to construe the provisions in this way. It follows that ground 1 is not made out.
Ground 2
66 By this ground, the Attorney-General contends that the primary judge erred in finding that there exist implied duties in the FOI Act upon Ministers, including former Ministers, to preserve the subject matter of an FOI request, and in finding that the FOI Act confers an implied right on an incoming Minister to obtain such documents from former Ministers.
67 It is important to understand the way in which the Attorney-General relies on ground 2 in the context of the appeal as a whole. The Attorney-General started his written and oral submissions with ground 2 rather than ground 1. The reason he did so, as explained in oral submissions, is that the findings about implied duties formed part of the primary judge's reasoning in support of her construction of the FOI Act (in relation to the time at which one determines whether a document is an "official document of a Minister") (see the Reasons at [100]); if the Attorney-General were able to persuade the Court that the primary judge erred in relation to the implied duties, this would be a "powerful reason" for agreeing with the Attorney-General's submissions on ground 1 (T4).
68 It appears to us that the dispositive issue in the appeal is the construction issue that is the subject of ground 1. The issues raised by ground 2 only go to aspects of the primary judge's reasoning in relation to the construction issue. It follows that, even if the primary judge erred as contended by ground 2, given our conclusion in relation to ground 1, the appeal must be dismissed. It is nevertheless appropriate in the circumstances to consider ground 2.
69 Ground 2 focuses on the following implied duties, which the Attorney-General contends were found by the primary judge:
- (a) that the Minister responsible for dealing with an FOI request, and in whose possession the document is at the time of the request, "must maintain that possession until the request is finally determined" (by keeping physical custody, physical control, or
