(a) hold or occupy the office, appointment or position; or
(b) perform the duties of the office, appointment or position.
(Emphasis added.)
76 In oral submissions, senior counsel for the Attorney-General clarified that the Attorney-General accepts that's 20 operates in the present situation, but said that s 20 "only goes so far" (T28). He accepted that it had the effect that Attorney-General Dreyfus was the party to the review before the Information Commissioner, even though a different Attorney-General (holding a different office) made the decision to refuse access.
77 The Attorney-General submits that: the FOI Act is not a self-contained scheme for accessing, storing and retaining government records; it operates within the setting of other Acts, and longstanding conventions of responsible and Cabinet government (such as the confidentiality of Cabinet documents of a previous government); the FOI Act and the Archives Act together provide a scheme for access to Commonwealth records, while the Archives Act has an additional focus on storing and retaining Commonwealth records (see s 2A); where two (or more) enactments deal with overlapping subject-matter, or comprise an overlapping legislative scheme, they should be construed in light of each other, and in a way that gives them a harmonious operation: see, eg, Commissioner of Stamp Duties (NSW) v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 724; Maroondah City Council v Fletcher [2009] VSCA 250; 29 VR 160 at [85].
78 In oral submissions, senior counsel for the Attorney-General referred to provisions of the Archives Act, in particular ss 3(1), 3(2), 3C and 24. Section 3(1) relevantly defines a "Commonwealth record" as meaning (among other things) "a record that is the property of the Commonwealth or of a Commonwealth institution" but does not include a record that is exempt material. There appears to be a difference between the parties as to whether an official document of a Minister (within the meaning of the FOI Act) will be a "Commonwealth record" as so defined. The Attorney-General submitted that an official document of a Minister (within the meaning of the FOI Act) is the property of the Commonwealth and therefore will be within the definition of a "Commonwealth record" for the purposes of the Archives Act (T17). Mr Patrick submitted in his written submissions that an official document of a Minister will not necessarily be a "Commonwealth record", referring to Hocking v Director-General of the National Archives of Australia [2020] HCA 19; 271 CLR 1 at [82]–[83].
