79 Section 24(1) of the Archives Act provides, in part, that, subject to the Act, a person must not engage in conduct that results in the destruction or other disposal of a Commonwealth record. Section 24(2) of the Archives Act provides in part that sub-section (1) does not apply to anything done: with the permission of the Archives or in accordance with a practice or procedure approved by the Archives (s 24(2)(b)); or in accordance with a normal administrative practice, other than a practice of a Department or authority of the Commonwealth of which the Archives has notified the Department or authority that it disapproves (s 24(2)(c)).
80 Senior counsel for the Attorney-General took the Court to several parts of GRA38, which (as noted above) was made pursuant to ss 3C and 24(2)(b) of the Archives Act. GRA38 relates to Ministerial documents. As stated in the Introduction to GRA38, it "sets out those records that are part of the archival resources of the Commonwealth and need to be retained permanently as national archives". In paragraph 3 of GRA38, it is stated that GRA38 does not apply to Cabinet documents, which are dealt with in the Cabinet Handbook. Paragraph 12 of GRA38 states in part:
Records of 'Retain as National Archives' (RNA) status in this records authority have been determined to be part of the archival resources of the Commonwealth under section 3C of the Archives Act 1983 and should be transferred to the National Archives by arrangement when they cease to be required for business purposes or when the Minister leaves office.
(Emphasis added.)
81 We note that, in the present case, as set out above, enquiries were made as to whether the NAA is in possession of the Document; the response was that it is not in the possession of the NAA.
82 The Attorney-General submitted that s 24(2) of the Archives Act, along with paragraph 12 of GRA38, impose an obligation on an outgoing Minister to transfer Commonwealth records to the NAA upon leaving office. In response, Mr Patrick submitted that paragraph 12 of GRA38 permits the retention of documents where they are required for "business purposes", and this includes dealing with an extant FOI request.
83 Senior counsel for the Attorney-General also took the Court to the Cabinet Handbook. That document includes the following statements in relation to the protection of Cabinet documents:
105. Cabinet documents are considered to be the property of the Government of the day. They are not departmental records. As such they must be held separately from other working documents of government administration.
…
110. Cabinet records (files) are held on behalf of the Government in the care
