Page:Patrick v Australian Information Commissioner (FCAFC).pdf/10

 not a question for the Court to decide. It is commonplace that resources available for government institutions and services such as public hospitals, other care facilities, public transport, government schools, administrative decision-makers, and courts, are finite. The failure to meet the expectations of some users of government services does not, without more, have the consequence that those responsible for the discharge of the relevant public function have acted unreasonably in the eyes of the law. It is ultimately for the Commonwealth Parliament to legislate so as to appropriate monies to the Office of the Australian Information Commissioner in order to enable the discharge of the Commissioner's statutory functions. Any legislative decision no doubt needs to balance competing budgetary demands, which are for the Parliament to consider.

[7] For the reasons that follow, the applicant has not established that there has been unreasonable delay in the sense required to engage s 7(1) of the ADJR Act. …

20 As noted above, the primary judge provided a detailed analysis of the legislative scheme at [8]–[31].

21 The primary judge made numerous factual findings in respect to the resources and procedures of the Information Commissioner at [64]–[92]. These were not challenged on appeal.

22 The primary judge then addressed the seven IC reviews in issue and made factual findings as to the conduct of the review before making the assessment as to whether unreasonable delay had been established. Suffice to say that the primary judge was not satisfied in respect to any of the reviews that unreasonable delay had been established. Relevantly, the reviews were addressed as follows: first IC review at PJ [95]–[115], second IC review at PJ [116]–[133], third IC review at PJ [134]–[147], fourth IC review at PJ [148]–[162], fifth IC review at PJ [163]–[179], and sixth IC review at PJ [180]–[183]. The seventh IC review is no longer in issue (see [], above).

Consideration

23 Before addressing the six reviews, it is appropriate to make some general comments.

24 First, a preliminary, but not necessarily decisive, issue is whether the primary judge misinterpreted Wei v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 268; (1991) 29 FCR 455 (Wei), with the result that his Honour approached the question of whether the delay was unreasonable in each instance on the basis that, if resourcing was an explanation for the delay, it could not be said to be unreasonable. The appellant pointed to PJ [6] and [200] to illustrate the point.

25 The appellant framed the issue as follows (emphasis in original):

Does under-resourcing of an agency (whether due to decisions beyond the agency's control or decisions as to the allocation of resources between its functions), with the

Patrick v Australian Information Commissioner [2024] FCAFC 93