Patrick v Attorney-General (Cth)

Case [2024] FCA 268

FEDERAL COURT OF AUSTRALIA

Patrick v Attorney-General (Cth) [2024] FCA 268  

File number: SAD 40 of 2023
Judgment of: CHARLESWORTH J
Date of judgment: 21 March 2024
Catchwords: ADMINISTRATIVE LAW – appeal from decision of the Information Commissioner made on review under Pt VII of the Freedom of Information Act 1982 (Cth) – request for access to documents under s 15(2) of the Act –Attorney-General identifying one document falling within scope of the request – document at that time meeting the description of an “official document of a Minister” – request refused on the basis that the document was exempt, including because it was a Cabinet document – application for review to Information Commissioner – change of person occupying office of Attorney-General three times and change of Government whilst review pending – Commissioner finding the document was not in the possession of the new incumbent of the office – Commissioner varying the original decision and refusing access on that basis – whether Commissioner erred in applying the definition of an “official document of a Minister” at the time of the decision on review – consideration of the interaction between the Act and the Archives Act 1983 (Cth) – consideration of rights and duties arising under the Act, including a duty of decision-makers not to interfere with requesting party’s right to have request for access determined according to law – content of the duty depending on the facts of the case
Legislation:

Acts Interpretation Act 1901 (Cth) ss 15AA, 20

Archives Act 1983 (Cth) ss 3C, 24, 27, 30

Freedom of Information Act 1982 (Cth) ss 3, 4, 7, 11, 11A, 13, 15, 16, 17, 24, 24AA, 24A, 31A, 34, 42, 54N, 55, 55A, 55DA, 55K, 55R, 55U, 55V, 56, 56A,

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 303

P Herzfeld and T Prince, Interpretation (2nd ed, Thomson Reuters (Professional) Australia Limited, 2020)   
Cases cited:

‘ACY’ and Attorney-General (Freedom of Information) [2023] AICmr 7 (22 February 2023)

Attorney-General v Jonathan Cape Ltd (1976) QB 752

Beesley v Australian Federal Police (2001) 111 FCR 1

Carr v Western Australia (2007) 232 CLR 138

Chu v Telstra Corp Ltd (2005) 147 FCR 505

Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619

Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1

Kline v Official Secretary to the Governor General (2013) 249 CLR 645

Lobo v Department of Immigration and Citizenship (2010) 116 ALD 639

Momcilovic v The Queen (2011) 245 CLR 1

Patrick v Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719

Phillip Morris Ltd and Treasurer [2013] AICmr 88 (13 December 2023)

Rex Patrick and Attorney-General [2023] AICmr 9 (28 February 2023)

Sankey v Whitlam (1978) 142 CLR 1

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

Taylor v Owners – Strata Plan 11564 (2014) 253 CLR 531

Thomas…

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AGLC
Patrick v Attorney-General (Cth) [2024] FCA 268
Case
[2024] FCA 268
Decision Date

CaseChat Overview and Summary

In the case of Patrick v Attorney-General (Cth), the applicant sought access to a document under section 15(2) of the Freedom of Information Act 1982 (Cth). The Attorney-General initially identified one document that met the description of an “official document of a Minister” but refused access on the basis that it was exempt, including because it was a Cabinet document. The applicant applied for review to the Information Commissioner, who varied the original decision, finding that the document was not in the possession of the new incumbent of the office of the Attorney-General at the time of the decision on review. The Commissioner concluded that the document did not meet the description of an “official document of the Minister” within the meaning of the FOI Act at the time of the decision on review. The applicant appealed the Commissioner’s decision.

The legal issues in the case included whether the Commissioner erred in applying the definition of an “official document of a Minister” at the time of the decision on review and whether the Commissioner misconstrued the scope of her discretionary powers to demand the delivery of the Document to her for the purposes of the review. The court also considered the interaction between the FOI Act and the Archives Act 1983 (Cth) and the rights and duties arising under the FOI Act, including a duty of decision-makers not to interfere with the requesting party’s right to have their request for access determined according to law.

The court found that the Commissioner proceeded on an erroneous construction of the FOI Act, misconstruing the scope of her discretionary powers to demand the delivery of the Document for the purposes of the review. The court held that the Commissioner’s misconstruction of the FOI Act caused her to misconstrue the scope of her discretionary powers. The court concluded that the Commissioner’s decision must be set aside, and the application for review of the refusal decision will be remitted to the Commissioner for determination according to law.

The court ordered that the appeal be allowed, the decision of the Information Commissioner be set aside, and the applicant’s application for review of the decision of the Attorney-General be remitted to the Information Commissioner for determination according to law. Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Information Commissioner made under Pt VII of the Freedom of Information Act 1982 (Cth) is set aside.

3. The applicant’s application for review of the decision of the Attorney-General made on 4 June 2020 be remitted to the Information Commissioner for determination according to law.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Commissioner concluded that at the time of the decision on review, the Document was not in the possession of the Attorney-General and so did not meet the description of an “official document of the Minister” within the meaning of the FOI Act. I will refer to that as the IC Decision. This is an appeal from the IC Decision. Among other things, Mr Patrick contends that the Commissioner erred by asking herself whether the Document was an official document of a Minister as at the date of the IC Decision, rather than at the Request Date. He contends that his FOI request gave rise to a legal obligation in Mr Porter to preserve and maintain the Document, and a legal entitlement in persons subsequently occupying the office of Attorney-General to demand the production of the Document to them at least for the purpose of discharging obligations under the FOI Act relating to it. He contends that the IC Decision proceeds from a misconstruction of the FOI Act in either or both of those respects. In addition, he contends that the Commissioner’s misconstruction of the FOI Act caused her to misconstrue the scope of her discretionary powers to demand the delivery of the Document to her for the purposes of the review. I am satisfied that the Commissioner proceeded on an erroneous construction of the FOI Act and that the IC Decision must accordingly be set aside. The application for review of the Refusal Decision will be remitted to the Commissioner for determination according to law. These reasons consider scenarios in which a person responsible for performing functions or exercising powers under the FOI Act engage in acts such as the wilful destruction of documents subject to a pending request. That has been done solely for the purpose of testing the outcomes on the parties’ competing construction of the statute. I emphasise from the outset that there has been no suggestion of any wrongdoing of that or any other kind by persons responsible for dealing with Mr Patrick’s request.THE FOI ACT The express objects of the FOI Act are to give the Australian community access to information held by the Government of the Commonwealth by requiring agencies to publish information and providing a right of access to documents: FOI Act, s 3. Section 3(2) of the FOI Act confirms that the Parliament intends, by those objects, to promote Australia’s representative democracy by contributing to (relevantly) the increase of scrutiny, discussion, comment and review of the Government’s activities. Parliament also intends, by those objects, to increase recognition that information held by the Government is to be managed “for public purposes”, and is a “national resource”: FOI Act, s 3(3). Section 15(1) of the FOI Act relevantly provides:Persons may request access (1)Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document. The word “agency” means (relevantly) a Department, and so includes the Attorney-General’s Department.

Ratio Decidendi

Legal Principle Established

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