as permissible, by creating substantial duties that fill what her Honour perceived as gaps in the express terms of the FOI Act.
73 The Attorney-General submits that: the primary judge appears to have treated a Minister's "office" as a perpetual, continual thing that is inhabited by different appointees over time (see the Reasons at [121], [123], [124], [128]), but that is not so; a person is appointed a Minister of State under s 64 of the Constitution (read with s 65), to administer such Departments of State as the Governor-General determines; the appointment is particular to a person and a portfolio; the number of Ministers and Departments may vary between (or even within) governments; the responsibilities of a Department, and the legislation administered by a Minister administering the Department, are set out in Administrative Arrangements Orders, which are made by the Governor-General and varied from time to time, sometimes within a single government. The Attorney-General submits that: s 11A confers a right to access documents of "the" Minister (i.e., the particular Minister to whom the FOI request was made); by convention, the names of some Ministries will be the same in successive governments (such as "Attorney-General"), but a "new" Attorney-General, appointed after the retirement of the prior Attorney-General, is not filling the one perpetual "office"; there is nothing unusual in the possibility that documents of a former Minister are not "official documents of" the new Minister.
74 The Attorney-General submits that: the position of Ministers can be contrasted with the express provision made in s 4(6)–(7) of the FOI Act for what is to occur when an agency is abolished; there is no similar regime for when a Minister leaves office; that reflects Parliament's choice that, if a Minister is no longer in office, the FOI Act does not continue to provide access to the official documents of that Minister. The Attorney-General submits that, in practice, an FOI request to a former Minister may be treated as a request to the new Minister; but, in law, there is no continuation in the Ministerial office; that is why provisions such as ss 19, 19B, 19D-19E, 20 of the Acts Interpretation Act 1901 (Cth) are necessary; s 4(6)–(7) of the FOI Act (relating to agencies) is in addition to the provisions of the Acts Interpretation Act dealing with changes in Departments (such as s 19A and following).
75 It is convenient at this point to set out s 20 of the Acts Interpretation Act:
20 References to holders of appointments, offices and positions in Acts and Commonwealth agreements
In a provision of an Act, or of an agreement entered into by or on behalf of the Commonwealth, a reference in general terms to the holder or occupier of an office, appointment or position includes all persons who for the time being:
