38 Ground 2(d) of the amended notice of appeal raises a constitutional issue. The Attorney-General served notices under s 78B of the Judiciary Act 1903 (Cth). No State or Territory Attorney-General sought to intervene in the appeal. As discussed below, we do not consider it necessary to resolve the constitutional issue.
39 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).
Consideration
Ground 1
40 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.
41 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"?
42 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.)
43 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].
