Attorney-General (Cth) v Patrick

Case [2024] FCAFC 126

FEDERAL COURT OF AUSTRALIA

Attorney-General (Cth) v Patrick [2024] FCAFC 126

Appeal from: Patrick v Attorney-General (Cth) [2024] FCA 268
File number: SAD 52 of 2024
Judgment of: RANGIAH, MOSHINSKY AND ABRAHAM JJ
Date of judgment: 25 September 2024
Catchwords: FREEDOM OF INFORMATION – request for access to an official document of a Minister (the Attorney-General) – where one document (the Document) was within the scope of the request but the request was refused on the basis of two exemptions – where a new person was appointed as Attorney-General – where the new Attorney-General did not have possession of the Document – where the Information Commissioner decided that the Document was not an “official document of a Minister” because it was not in the possession of the Minister at the time of the Information Commissioner’s decision – where the primary judge held that the Information Commissioner erred in her construction of the Act – where the primary judge held that the time for determining whether a document is an “official document of a Minister” is the time the request for access is made (and only that time) – whether primary judge’s construction was correct – held: appeal dismissed
Legislation:

The Constitution, ss 64, 65

Acts Interpretation Act 1901 (Cth), ss 19, 19A, 19B, 19D-19E, 20

Archives Act 1983 (Cth), ss 2A, 3, 3C, 24

Freedom of Information Act 1982 (Cth), ss 3, 4, 11, 11A, 15, 15A, 15AB, 15AC, 16, 21, 24, 24A, 24AA, 24AB, 26A, 27, 27A, 34, 42, 54L, 54S, 55R, 55U, 56, 67

Judiciary Act 1903 (Cth), s 78B

Cases cited:

Beesley v Australian Federal Police [2001] FCA 836; 111 FCR 1

Commissioner of Stamp Duties (NSW) v Permanent Trustee Co Ltd (1987) 9 NSWLR 719

Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98

EMJ18 v Secretary, Department of Home Affairs [2024] FCAFC 87

Graham v Minister for Immigration and Border Protection [2018] FCA 1012; 265 FCR 634

Hocking v Director-General of the National Archives of Australia [2020] HCA 19; 271 CLR 1

Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; 230 FCR 15

Maroondah City Council v Fletcher [2009] VSCA 250; 29 VR 160

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19; 273 CLR 21

Minogue v Victoria [2018] HCA 27; 264 CLR 252

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 36

Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; 253 CLR 531

Division: General Division
Registry: South Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 99
Date of hearing: 16 August 2024
Counsel for the Appellant: Mr G Hill SC with Mr N Swan
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the Respondent: Mr BK Lim with Ms A Sapienza
Solicitor for the Respondent: Maurice Blackburn Lawyers

ORDERS

SAD 52 of 2024
BETWEEN:

ATTORNEY-GENERAL…

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Attorney-General (Cth) v Patrick [2024] FCAFC 126
Case
[2024] FCAFC 126
Decision Date

CaseChat Overview and Summary

In the case of Attorney-General (Cth) v Patrick, the central issue was the interpretation of the term "official document of a Minister" under the Freedom of Information Act 1982 (Cth). The case involved a request for access to a document that was within the scope of the request but was refused on the basis of two exemptions. The dispute arose when a new Attorney-General was appointed, and it was discovered that the document in question was not in the possession of the Minister at the time the Information Commissioner made her decision. The Information Commissioner concluded that the document was not an “official document of a Minister” because it was not in the Minister's possession at the time of her decision. The primary judge disagreed, holding that the Information Commissioner had erred in her construction of the Act.

The legal issues before the court involved determining the correct time for assessing whether a document is an “official document of a Minister” under the Freedom of Information Act. The Attorney-General argued that the assessment should be made at both the time of the request for access and the time of the decision on the request. The primary judge, however, held that the status of the document as an “official document of a Minister” should be determined solely at the time the request for access is made. The court had to decide whether the primary judge's interpretation was correct and whether the time for determining the document's status was indeed at the time the request for access is made.

The court held that the primary judge's construction of the Act was correct, and the time for determining whether a document is an “official document of a Minister” is the time the request for access is made. The court found that the Attorney-General's argument that the assessment should also be made at the time of the decision on the request was not supported by the statutory text or purpose. The court dismissed the appeal and ordered that the Attorney-General pay the respondent’s costs of the appeal, as agreed or taxed.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The primary judge concluded her reasoning in relation to question 1 in the following passage:98The Attorney-General submitted that the FOI Act must be construed in the context of a broader legislative regime concerning the handling, care and access to public documents including the Archives Act which operates both to prohibit the destruction of public records other than in accordance with its terms and require the transfer of certain records to the National Archives where a different public access regime applies. There is no evidence in this case that the Document was transferred by Mr Porter or any other person to the National Archives, nor is there evidence that the Document has been destroyed in accordance with or contrary to the Archives Act or any other law. But it is necessary to consider the provisions of the Archives Act because of submissions concerning its interaction with the regime established under the FOI Act and the nature of the mischief said by Mr Patrick to arise if his submissions are rejected. That will be done in the context of answering the remaining questions of law.99Ultimately, I have concluded that the question of whether a document referred to in an FOI request meets the description of an “official document of a Minister” (if it arises in the particular case) is a question that must be resolved by reference to facts and circumstances existing at the time that a request under s 15(2) is received in respect of it. The status of the document under the definition is not to be revisited and revised by reference to changed facts and circumstances following the date that the request is received. However, as I have said, access to a document to which an FOI request relates may nonetheless be refused in the circumstances described in s 24A of the FOI Act, applied by reference to facts and circumstances arising after a request is received. It is in that context that loss or destruction of a document captured by the request falls to be considered. As explained earlier, access to a document that may be captured by a request may also be refused on bases that do not depend on any finding about whether it is so captured, or whether or not it has been lost or destroyed.100I am urged by the Attorney-General to avoid that construction because it may create a situation in which Ministers may have legal obligations under s 11A(3) to provide access to documents that are no longer in their physical control or possession at the time of their own decisions or decisions on external review. In other words, it may result in there being an obligation that cannot be fulfilled for reasons that are not the fault of the Minister concerned. That argument can be rejected for reasons given in the course of answering the remaining questions of law. In short, there may be an answer in s 24A of the FOI Act to the conundrum in the case of accidental loss or destruction of a document falling within a request, depending on the facts. The asserted conundrum does not otherwise tell against the imposition of the duties referred to below. Rather, compliance with those duties will avoid the conundrum arising at all. Deliberate non-compliance may constitute a refusal to comply with a legal obligation or an interference with the rights of the requesting party. That is not a “conundrum” in a constructional sense. Rather, it is a factual conundrum arising because of a breach of duties owed under the statute, properly construed.(Emphasis added.)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows from our conclusion on ground 1 that ground 3 is not made out.Conclusion For the reasons set out above, the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, there will also be an order that the Attorney-General pay Mr Patrick’s costs of the appeal.

Ratio Decidendi

Legal Principle Established

In Mr Patrick’s outline of submissions, he contended that the Attorney-General needed to succeed on both grounds 1 and 2 in order to succeed on ground 3. At the hearing of the appeal, senior counsel for the Attorney-General said that “in practice, unless I can persuade your Honours on both grounds 1 and 2, then ground 3 will not be successful” (T43).ConsiderationGround 1 Although the Attorney-General’s oral and written submissions addressed ground 2 before ground 1, we consider it preferable to address the grounds in the order in which they appear in the amended notice of appeal. Ground 1 raises the issue of statutory construction outlined in [1] of these reasons, namely: where a person requests access to an official document of a Minister under the FOI Act, at what point (or points) in time is it to be determined whether the document is an “official document of a Minister”? There is no issue as to the applicable principles of statutory construction. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362, Kiefel CJ, Nettle and Gordon JJ stated at [14]:The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.(Footnotes omitted.) The above passage was cited with approval by Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19; 273 CLR 21 at [15]. The Attorney-General contends that the time for assessing whether a document is an “official document of a Minister” (to which access must be provided) is not just the time of the FOI request, but also the time of the decision on the FOI request (including a decision on review). In other words, the Attorney-General contends that the question whether a document is an “official document of a Minister” is to be determined both at the time the request for access is made and at the time that a decision is made whether to grant access to the document. The Attorney-General submits that, as a practical matter, access can only be granted to documents actually in the possession of the Minister at the time of the decision. Further, he submits that successive Ministers hold different offices, meaning there is no expectation that a document that was in the possession of a former Minister will be in the possession of a subsequent Minister (especially a Minister of a different government).