139 That part of GRA 38 must be understood in its proper context against the offence created by s 24(1). Its purpose is to prescribe circumstances under s 24(2) in which that offence does not apply. That part of GRA 38 does not justify the rejection of Mr Patrick's submissions on any of the questions of law arising on this appeal. The circumstance that an act or omission does not amount to a criminal offence under one enactment does not mean that the same act or omission cannot be unlawful under another. The matters prescribed for the purpose of s 24(2) are exceptions to an offence that would otherwise be committed by the destruction of a Commonwealth record. They cannot be elevated to mandatory obligations to deal with the record in a way that would be inconsistent with obligations arising under any other law.
140 Nor can they relate in any event to a document not being a Commonwealth record. In any event, irrespective of the content of any authorisations prescribed for the purposes of s 24(2), the offence in s 24(1) on its terms does not apply if the act or omission is authorised by any other law. If on its proper construction the FOI Act requires an outgoing Minister to cause custody of a document to be transferred out of his or her custody for any reason, then the transfer of custody would not constitute an offence under s 24(1). There is no inconsistency between the construction favoured by Mr Patrick and that part of the Archives Act.
141 For the purposes of s 3C of the Archives Act, GRA 38 goes on to classify documents according to their description, and to identify the "disposal action" applicable to documents in each class, being either "Retain as National Archives" or "Destroy 7 years after action completed or when the Minister leaves office, whichever is sooner" (my emphasis).
142 In addition, GRA 38 states (at [12]):
Records of 'Retain as National Archives' (RNA) status in this records authority have been determined to be part of the archival resources of the Commonwealth under section 3C of the Archives Act 1983 and should be transferred to the National Archives by arrangement when they cease to be required for business purposes or when the Minister leaves office.
Ministerial records of archival value that are in the custody of a Commonwealth institution are required to be transferred to the care of the National Archives in accordance with s 27 of the Archives Act 1983. The permission of the National Archives is required where a Minister or other person wishes to transfer the custody of Ministerial records to a person or institution other than the Commonwealth or a Commonwealth institution.
(emphasis added)
143 Those parts of GRA 38 are to be understood as made in the exercise of the power conferred under s 27 of the Archives Act and as so must be interpreted
