decision elapses (ss 15AB, 15AC(4)); time can also be enlarged by the "request consultation process" if a practical refusal reason is raised (s 24AB(8)); review of refusal decisions also takes time; a person has 60 days, which can be extended, to seek review by the Information Commissioner (ss 54S(1), 54T); there is no express time within which the Information Commissioner must perform the statutory duty to determine a review.
88 Mr Patrick submits that: even if access is to be granted instead of refused, provision of access may be "deferred" on the grounds set out in s 21, or until the appeal or review opportunities by interested third parties have been exhausted (ss 26A(4), 27(7), 27A(6)); these provisions illustrate an additional point, namely that the FOI Act is concerned to maintain the status quo so that appeal or review opportunities are not frustrated (see also s 67); the duty not to deal with a document in a way that defeats the determination of a request is consistent with that statutory objective.
89 Mr Patrick submits that: when one has regard to the many express duties of a Minister, over what could lawfully be a period of many years, to co-operate in the FOI Act's scheme for determining whether access should be given to an official document, the duty identified by the primary judge, namely not to deal with the document in a way that would frustrate the process, is a compelling and even unavoidable implication; even if the requisite test is strict necessity, it is met. Moreover, Mr Patrick submits, because the permissible timeframes are lengthy, the Act clearly does not contemplate that a Minister leaving office has any decisive effect on the fate of a request for access to an official document of the Minister.
90 Mr Patrick submits that it is unnecessary to decide the constitutional issue (whether Ministers occupy a continuing "office" or whether there is a separate "office" upon each appointment) because the real issue is whether references to the Minister in the FOI Act are "references in general terms to the holder or occupier of an office, appointment or position" within the meaning of s 20 of the Acts Interpretation Act. Mr Patrick submits that: given the facultative purpose of s 20, it cannot be assumed that "office, appointment or position" has a meaning that would correspond to the asserted technical constitutional meaning of Ministerial office; a reference to a Minister "in general terms" attracts s 20, even if for constitutional purposes there might be no continuing office. Mr Patrick submits that: the Attorney-General's submissions understate the position; it is not that there is a mere "practice" facilitating some but not all aspects of the scheme; rather, an incoming Minister legally succeeds to the duties imposed by the FOI Act to give access to a document, even though the request was made to the outgoing
