105 As explained earlier in these reasons, the right to access a document under s 11 of the FOI Act is not absolute, but depends upon the application of the FOI Act to a request made under it. Importantly, that is not the only right that may be enjoyed by a person who makes a request under the FOI Act for a document, nor is the obligation under s 11A(3) the only obligation that may be owed by a person receiving the request.
106 A person who makes a request under the FOI Act has a right to have that request determined and responded to according to law. The correct response to the request may not be known until rights of review and appeal are exhausted, or the time to exercise them expires. There is nothing at all contingent or uncertain about the right to have the request determined lawfully, including the rights of review and appeal. No express words are necessary to identify it. It is a fundamental and immovable plank in the resolution of the issues before me.
107 An original decision of a Minister or agency to refuse access to a document is not conclusive of whether the right to access it (or the obligation to grant access to it) exists. That decision may be varied or substituted on merits review. In turn, the decision on merits review is subject to supervisory review on a question of law on an appeal (such as the present) under s 56 of the FOI Act, and also in the exercise of the High Court's jurisdiction under s 75(v) of the Constitution, or the equivalent jurisdiction conferred on this Court under s 39B of the Judiciary Act 1903 (Cth). A request that has been originally refused may at any time be reversed and substituted, so revealing the existence of an immediate obligation on the part of the agency or Minister to discharge the obligation under s 11A(3).
108 The right to have a request determined in accordance with the FOI Act gives rise to concomitant obligations on the receiving agency and Minister by necessary intendment. At the very least, there is an obligation not to do any act that would interfere with the right to have the request determined according to law, including any act that would frustrate the exercise of a right of review or appeal by rendering its exercise ultimately futile (even if successful).
109 The right to have a request lawfully determined includes a right to have the request assessed for compliance with s 15(2) of the FOI Act. An original decision on that question is itself reviewable. As such, the procedural rights and associated obligations to which I have referred apply to all requests purportedly made under the FOI Act whether or not they are initially determined by an original decision maker not to comply with s 15(2).
