Page:Patrick v Australian Information Commissioner (FCAFC).pdf/14

 38 See also ASP v Commonwealth [2016] FCAFC 145; (2016) 248 FCR 372 at [21]–[23].

39 In BMF16 at [25]–[26], Bromberg J succinctly describes the assessment as follows (the passage was recited by the primary judge at [51]):

40 The "usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law", was recently reiterated by the High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196 at [25]. See also Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 (DUA16) at [26] citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) at [11], [52], [89] and [135].

41 In this regard the primary judge at [52] quoted DUA16 at [26]:

42 The appellant pointed to no authority to support the proposition that the consideration of whether a delay is unreasonable starts with an assumption that an agency is adequately resourced, such that the lack of resourcing is a consideration (except in limited circumstances) that is not relevant thereafter. Nor did he point to any authority which suggests that any explanation for a delay that refers to resourcing is not a relevant consideration (or is of limited relevance) in assessing whether it has been established that the delay is unreasonable. Patrick v Australian Information Commissioner [2024] FCAFC 93