Minister; therefore, the outgoing Minister's duty not to frustrate the statutory right of access extends to maintaining possession of the document by the incoming Minister who will succeed to the duty to give access (unless a different course is taken of transferring the document and the request, under s 16, to an appropriate Department).
91 Mr Patrick submits that: the Archives Act does not speak against the obligation not to deal with an official document so as to frustrate an access request; even if an official document of a Minister is a "Commonwealth record", the most that can be said to follow is that GRA38, an instrument made under the Archives Act, disapplies the offence provision in s 24(1) where transfer to the NAA or destruction occurs in accordance with GRA 38; on its own terms, GRA38 does not purport to deal exhaustively with the topic; records with "Retain as National Archives" status "will be accepted for transfer", and "should be transferred", but only when they "cease to be required for business purposes or when the Minister leaves office"; that does not preclude business purposes continuing even though the Minister leaves office; the Archives Act does not purport to define "business purposes", which must include facilitating statutory FOI processes.
92 In relation to the Cabinet Handbook, Mr Patrick submits that: even if it be accepted that convention requires the information in cabinet documents not to be made available to an incoming government, the FOI Act expressly removes from the Minister's own unilateral determination whether a given document is a cabinet document; that question can be determined more authoritatively by the Information Commissioner, the Administrative Appeals Tribunal, and ultimately by a court.
93 In our view, to the extent that the primary judge considered that there was a duty not to frustrate the right of the requesting party to have the request determined including on review or appeal (at [108] and [115] of the Reasons), it may be accepted that the implication is necessary for the provisions of the FOI Act to be workable and to achieve the objects in s 3 of the FOI Act.
94 However, in our respectful opinion, the other duties or obligations referred to by the primary judge at [115]–[117], [123] and [128] of the Reasons (see [32]–[33] above) are too prescriptive and go beyond what is necessary for the provisions of the Act to operate. In particular, there does not appear to be a sufficient statutory foothold for the proposition that the Minister responsible for dealing with a request for access must maintain possession of the document until the request is finally determined (cf Reasons, [115]). There may be other ways of ensuring that an applicant's rights under the Act are preserved; for example, by transfer of the document
