60 To the extent that the Attorney-General submits (as an alternative argument) that the words "does not exist" in s 24A(1)(b)(ii) are capable of covering a situation where a document is no longer in the possession of the Minister, we consider this to be a strained construction of those words. The ordinary meaning of the words, read in context, is that the document does not exist at all. There is no reason to depart from this ordinary meaning.
61 The Attorney-General relies on s 24A(2), which deals with refusing access where an agency has not received documents under contractual measures, despite taking all reasonable steps. The Attorney-General submits that this also would be determined at the time of decision. For the same reasons as for s 24A(1), we do not consider this provision to help the Attorney-General's contention.
62 One of the difficulties with the Attorney-General's construction is that the character of a document (as an "official document of a Minister") can change in one direction but not the other; that is, the pool of documents can reduce but not expand. In the course of oral submissions, senior counsel for the Attorney-General submitted that the Attorney-General's construction "actually works both ways" (T41). However, the example he gave was where a document that is within the scope of the request is found between the time of the request and the time of the decision. This example appears to contemplate that the document was in the possession of the Minister at the time of the request for access but not located in an initial search; it is then found during a subsequent search. The example does not cover a case where a document comes into the possession of the Minister after the request for access was made. Accordingly, we consider that it is the case that, on the Attorney-General's construction, the pool of documents can reduce but not expand. While not determinative, we agree with the primary judge that this would be a strange result.
63 If and to the extent that the Attorney-General relies on the broader legislative context (namely, the Archives Act) in support of his construction, we do not consider this to assist in resolving the constructional issue raised by ground 1. It is difficult to see how any provisions of the Archives Act could have a bearing on the constructional issue. If and to the extent that the Attorney-General relies on GRA38 and the Cabinet Handbook in relation to ground 1, we do not consider these to assist. The Attorney-General's submissions based on these documents were mainly, if not entirely, directed to ground 2.
64 In our view, it is not necessary to decide the issues raised by ground 2 (whether the primary judge erred in implying certain duties) in order to resolve the issue of construction raised by
