Page:Patrick v Australian Information Commissioner (FCAFC).pdf/11

 consequence that it is unable to fulfil its statutory functions within what would otherwise be a reasonable time, mean that such delay is lawfully authorised? The appellant contends that, while a lack of adequate resources may be a cause of unreasonable delay – it may explain why an agency has failed to discharge its statutory function in accordance with law – it should not lead to the conclusion that an otherwise-unreasonable delay is legislatively authorised.

26 The appellant and respondent take fundamentally different approaches to assessing whether a delay is unreasonable.

27 As reflected by the passage just recited, the appellant's approach treats as axiomatic that an agency is adequately resourced. He submits it is a basic legislative assumption that the AIC would be adequately resourced to perform its functions, and the reasonableness of any delay is to be assessed on that basis. That approach necessarily requires a prior assessment of what amounts to adequate resourcing and whether an agency is adequately resourced. An assessment of that sort sits uncomfortably with the bedrock separation of powers principle reflected in Wei: "it is not for the court to dictate to the Parliament or the Executive what resources are to be made available in order to properly carry out administrative functions under legislative provisions.": at 477. See also Davis v Military Rehabilitation and Compensation Commission [2021] FCA 1446; (2021) 174 ALD 166 (Davis) at [21]; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 at 117. That the appellant invites the Court to undertake such an assessment without making any overt judgment as to whether an agency is adequately resourced does not assist.

28 The approach is also premised on a timeframe for a decision being otherwise unreasonable if it is presumed that an agency is adequately resourced, such that resourcing is not a relevant consideration in this case. That said, the appellant submitted that he did not want to be too absolute about that as a general proposition, recognising there may be some circumstances (for example, where delay occurred because unexpected circumstances impacted the resources provided to an agency) where resourcing may be considered. That approach limits an assessment that, according to the weight of authority, should be made in "all" the circumstances (see [36]–[37] below).

29 On the other hand, the respondent contended that the better approach is, as part of the usual process of determining whether any particular delay is unreasonable, to treat resourcing as one relevant consideration in that process (provided that resourcing is an, or the, explanation for the delay). That is, there is no special approach to determining an issue of unreasonableness simply because the delay is explained, in part or in whole, by resourcing. Patrick v Australian Information Commissioner [2024] FCAFC 93