maintaining an entitlement to access the document from another) (Reasons, [115]-[116]);
- (b) that if, after an FOI request is made, there is a change in Minister, the new Minister "may demand from the former occupant the transfer of the custody of the document" (Reasons, [123]); and
- (c) that the former Minister has an obligation to deliver up the documents, including to the "new incumbent in the office in connection with a document subject to an unresolved request for access under the FOI Act" (Reasons, [128]).
70 The Attorney-General submits that: there was no proper basis for the primary judge to imply those duties, which are of uncertain content; those duties have no textual foothold in the FOI Act and are not supported by the broader legislative context; they are not reasonably necessary to give effect to the scheme of the FOI Act.
71 The Attorney-General submits that the courts do not imply words into a statute, unless it is strictly necessary to do so: see, eg, Minogue v Victoria [2018] HCA 27; 264 CLR 252 at [43]; Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98 at 103; Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; 230 FCR 15 at [24]. It is submitted that it is not the Court's function to fill gaps in legislation or engage in statutory repair, nor is it appropriate to construe statutes in a way that makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature": Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 (Taylor) at [38], [65]; EMJ18 v Secretary, Department of Home Affairs [2024] FCAFC 87 (EMJ18) at [56], [136]. Accordingly, the Attorney-General submits, the reading of duties and obligations into legislation is not lightly to be undertaken: the court will ask whether the absence of the contended for obligation would render the regime "inoperative or unworkable", such that the principle of necessity can be invoked: Graham v Minister for Immigration and Border Protection [2018] FCA 1012; 265 FCR 634 at [93]; EMJ18 at [61].
72 The Attorney-General submits that: the duties created by her Honour have no textual foundation in the FOI Act; reference to generally expressed provisions, such as ss 11A(3) and 15, do not assist, because the FOI Act only confers a right of access as defined by that Act; the statements at [108] and [117] of the Reasons as to necessity are no more than assertion; the implications drawn by the primary judge therefore go far beyond what was accepted in Taylor
