pursuant to s 16 of the FOI Act (noting that, in that section, "agency" includes a Minister – s 16(6)). Likewise, there does not appear to be a sufficient statutory foundation for the proposition that, pursuant to the FOI Act, a new Minister may demand from a former Minister that he or she transfer custody of a document that is the subject of an unresolved request for access (cf Reasons, [123]–[128]). Given the complications that may arise in relation to Cabinet documents where there is a change in government, it may be that there are other ways of dealing with such a situation that preserve the applicant's rights under the Act.
95 We do not consider it necessary for present purposes to resolve the difference of view as to whether an official document of a Minister (as defined in the FOI Act) will always be a "Commonwealth record" for the purposes of the Archives Act. Further, we do not consider it necessary to express a view on the interpretational issues raised in relation to GRA38 and the Cabinet Handbook. It would be preferable for these issues to wait until there is a fact situation that calls for their resolution.
96 Insofar as s 20 of the Acts Interpretation Act is concerned, as set out above, it is common ground that it applies in the present situation, whether or not the Attorney-General's constitutional point is correct. Accordingly, it is unnecessary to decide the constitutional issue (whether Ministers occupy a continuing "office" or whether there is a separate "office" upon each appointment) and it is preferable not to do so.
97 To the extent set out above, ground 2 is made out. However, as explained at [68] above, we do not consider this to affect the outcome of the appeal.
Ground 3
98 It follows from our conclusion on ground 1 that ground 3 is not made out.
Conclusion
99 For the reasons set out above, the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, there will also be an order that the Attorney-General pay Mr Patrick's costs of the appeal.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rangiah, Moshinsky and Abraham.
