Ministerial applications and machinery of government changes

The Right to Information Act 20091(Qld) (RTI Act) gives people the right to apply for access to documents of a Minister.2 The obligations of a Minister under the RTI Act continue even if there is a change of Minister.3

Duty not to frustrate

Agencies and Ministers have a duty not to frustrate the right of an RTI applicant to have their application determined, including on review or appeal.4

Agencies and Ministers should take all reasonable steps to preserve the right of access provided in the RTI Act, including continuing to process RTI applications, preserving documents applied for prior to the change of Minister, and preserving RTI applicant and third party review rights.

The Public Records Act 2023

Section 18 of the Public Records Act 2023 (Qld) (PR Act) sets out who must be given control of relevant public records when a Minister’s6 appointment ends or their portfolio responsibilities change.

A relevant public record is a Ministerial record:

  • made or received during the period the Minister held office; or
  • made or received in relation to the Minister’s portfolio responsibilities.7

If the Minister’s appointment ends or their responsibilities cease because of a change in government, State Archives must be given control of the relevant public records.

If there is no change of government and:

  • the Minister’s appointment ends and a different person is appointed as the Minister, the new Minister must be given control of the relevant public records
  • part of the Minister’s portfolio is transferred to a different Minister, that Minister must be given control of the relevant public records, ie the records which relate to the transferred responsibility; and
  • the Minister ceases to have responsibility for part of their portfolio and it will not be transferred to another Minister or another public authority, State Archives must be given control of the relevant public records.

For documents of a Minister which are not public records, decision makers should consider the administrative arrangements in the Ministerial Handbook.8

Change of Minister within a government

In Patrick, the Full Federal Court decided that the status of a document as a document of a Minister is determined at the time a request for access which complies with all the application requirements9 is made.

If there is a change of Minister with no change of government while the application or any review or appeal process is on foot:

  • documents of a Minister will remain documents of a Minister; and
  • the application, review, or appeal will continue with the new Minister as the responsive Minister.10

If the decision maker did not receive documents from the Minister's office before the change of Minister, they will need to make queries with, or resend search requests to, the Minister's office. These should be documented on the file.

Example

The Minister for Kangaroos and Crocodiles receives a valid access application. While the application is being processed, the Minister resigns during a MOG change that transfers the crocodile portfolio. A new Minister for Kangaroos and a Minister for Crocodiles are appointed.

  • If the application was for documents about kangaroos, they will continue to be documents of the new Minister for Kangaroos.
  • If the application was for documents about crocodiles, the documents will continue to be documents of a Minister, but the new Minister for Crocodiles may become the responsive Minister for the purposes of any review or appeal, rather than the Minister for Kangaroos.
  • If the application was for documents about kangaroos and a copy of the outgoing Ministerial diary, they would both remain documents of the new Minister for Kangaroos, but it may be necessary to consult with the outgoing Minister about their diary if a decision is made to release it.

Change of Minister when there is a change of government

Applications to the Minister will not necessarily cease11 and directions made by the Minister will generally remain valid12 even if the change of Minister or portfolio results from a change of government. However, section 18 of the PR Act provides that in these circumstances control of relevant public records must pass to State Archives.

If there is a change of government, the decision maker will need to determine whether the documents sought are documents of a Minister, taking into account section 18 of the PR Act. If any of the documents sought are not relevant public records under section 18 of the PR Act, decision makers will need to consider the nature of the documents and any administrative arrangements for their management, eg the Ministerial Handbook and Cabinet Handbook.

Where the direction to deal with an access application has been given to a departmental decision maker, and the decision maker received documents from the Minister's office before the change of Minister—meaning they are in the department’s physical possession—it may be appropriate to transfer the application to the department.

  • 1 And the Information Privacy Act 2009 (Qld) (IP Act), which gives a right to access and amend documents containing the applicant's personal information; references to the RTI Act and its provisions should be taken to include the IP Act and its equivalent access and amendment provisions.
  • 2 A document of a Minister is a document in the possession or under the control of the Minister that relates to the affairs of an agency. See Documents of an agency and documents of a Minister for more information.
  • 3 Attorney-General (Cth) v Patrick [2024] FCAFC 126 (Patrick), considering when the status of a document as an official documents of a Minister is established under the Freedom of Information Act 1982 (Cth).
  • 4 Patrick, paragraph 93
  • 5 Section 34 of the Acts Interpretation Act 1954 (Qld); Jagroop v Minister for Immigration and Border Protection [2013] FCA 1287 at [82]-[96].
  • 6 References to Ministers and Ministerial public records in this guideline include Assistant Ministers and their public records.
  • 7 Or, for an Assistant Minister, their official duties.
  • 8 https://www.premiers.qld.gov.au/publications/categories/policies-and-codes/handbooks/ministerial-handbook.aspx. It should be read in conjunction with the Cabinet Handbook.
  • 9 Patrick, paragraph 51
  • 10 Patrick; section 34 of the Acts Interpretation Act 1954 (Qld).
  • 11 Section 34 of the Acts Interpretation Act 1954 (Qld); Patrick v Attorney-General (Cth) [2024] FCA 268;‘FJ4’ and Minister for Worksafe and the TAC (Freedom of Information) [2023] VICmr 90 (17 August 2023)
  • 12 Section 34 of the Acts Interpretation Act 1954 (Qld); Jagroop v Minister for Immigration and Border Protection [2013] FCA 1287 at [82]- [96]. Decision makers will need to consider their specific direction and its particulars to make this determination.

Current as at: December 5, 2024