Patrick applied for the document. The Department of the Prime Minister and Cabinet, despite admitting the document existed and was allegedly submitted to the Governance Committee of Cabinet, advised that neither an electronic record nor a physical record of the document could be found.

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If so, this shows appalling cabinet record-keeping and is an indictment upon the department. Did heads roll, one wonders? Or was a medal given instead?

Patrick also applied for the document from the attorney-general’s department. It also denied holding a copy. But the request was transferred to the attorney-general’s ministerial office, which admitted that it had it. It, however, denied access on the grounds that it was a cabinet document and subject to legal professional privilege, which are exemptions under the FOI Act.

Undeterred, Patrick sought a review by the information commissioner. During the two years it took to complete the review, Porter had been replaced as attorney-general by Michaelia Cash, and later, after a change of government, by Mark Dreyfus. Both Cash and Dreyfus had a good look around their office, checking behind the fridge and at the back of the cupboards, but the document could no longer be found. The information commissioner said it was therefore no longer an “official document of the Minister”, so the application was over.

But Patrick appealed, and won before Justice Natalie Charlesworth of the Federal Court. She held that once a claim under FOI has been made to a document, there is a legal obligation on the minister or department concerned to ensure that the document is retained and made available for any review or appeal, until those processes are completed.

Justice Charlesworth considered that parliament could not have intended that a minister could respond to a FOI request by destroying the document requested, and then saying they do not possess any such document. Nor could a minister, after admitting they have the document and refusing access to it, later destroy it to thwart any review or appeal.

She saw such outcomes as antithetical to the objectives of freedom of information. She also pointed out that the destruction of a “Commonwealth record” may constitute a criminal offence under the Archives Act, though she did not make any finding that a breach occurred.

The judge said that official documents are not the property of the minister, a political party, or even the government of the day. An outgoing minister has “no personal entitlement to maintain possession of documents previously held in his or her official capacity”.

As for the “common practice” of removing or destroying ministerial documents upon a minister leaving office, Justice Charlesworth was adamant that “it should stop”.

By shoving a spoke in the shredding machine, Justice Charlesworth has struck a blow for better government administration, proper record keeping and greater scrutiny. Let’s hope it works.

Anne Twomey is a Professor Emerita at the University of Sydney.

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