15 On 3 August 2022, the AGD responded on behalf of the current Attorney-General to the Information Commissioner's enquiries, stating that:
- (a) an officer from the AGO had advised that he asked staff in the AGO to conduct all reasonable searches to locate any relevant documents and no relevant document had been identified; and
- (b) the AGD had not located any record of receiving a transfer of documents from the office of former Attorney-General Cash following the May 2022 election, nor any record that documents from the former Attorney-General's office were transferred to the NAA.
16 On 28 February 2023, the Information Commissioner made a decision on the application for review: Rex Patrick and Attorney-General (Freedom of information) [2023] AICmr 9. The Information Commissioner decided to vary the decision under review, by finding that the Document was not an "official document of the Minister" to which the mandatory access rule in s 11A(3) of the FOI Act (set out below) applied. The essential basis of the Information Commissioner's decision was set out in [2] of her reasons for decision:
Following changes to the person occupying the role of 'Attorney-General' I am satisfied that the current Attorney-General does not have possession of any document at issue. This means that, for the purposes of the Information Commissioner (IC) review, any relevant document is no longer an 'official document of the Minister' to which the mandatory access rule in s 11A(3) of the FOI Act applies.
(Emphasis added.)
The definition of "official document of the Minister" is set out later in these reasons.
17 The Information Commissioner stated at [24] of her reasons that she was satisfied that the Document was not in the possession of the current Attorney-General, nor was it transferred to the AGD or the NAA. The Information Commissioner stated at [25]:
As the current Attorney-General does not have possession of the document at issue and cannot give access to the requested documents under s 11A(3) of the FOI Act, the document for the purposes of this IC review is no longer an official document of a Minister.
(Emphasis added.)
The key relevant provisions
18 Before providing an outline of the primary judge's decision, we set out the key relevant provisions of the FOI Act (noting that the Attorney-General also referred in his submissions to the Archives Act 1983 (Cth)). The version of the FOI Act included in the parties' amended joint bundle of authorities is compilation No 107, compiled on 1 October 2022, this being the
