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 43 Certainly, none of the judgments to which the appellant drew specific attention, being Wei, BMF16 and Davis, in which applications for relief based on unreasonable delay were a least partly sought to be explained by a lack of resources in the relevant agency, adopt that approach. Rather, each of those judgments, as with the primary judgment, considered evidence of the explanation for the delay as a relevant consideration, together with others, in reaching a conclusion. Further, it may be noted that, in BMF16, the Court ultimately concluded that the evidence failed to establish that resourcing was a significant cause of delay: at [104]–[105]. In Wei, in the context of evidence being adduced suggesting inadequate resources, the Court rejected the submission that the reasons were for delay were not relevant: at 475.

44 As the primary judge correctly observed, Thornton — where Fisher J considered the factors relevant to assessing whether a delay may be unreasonable for the purposes of the ADJR Act s 7(1) — has been repeatedly applied, including in Wei, BMF16 and Davis: PJ [47]–[52]. In doing so the primary judge at PJ [52] also referred to the comments in Davis, where Logan J held that the considerations referred to in Thornton sat well with contemporary expositions of legal unreasonableness, such as that found in DUA16 at [26] (recited above at [41]).

45 That said, care must be taken in considering those cases, and others, in what was said as to the lengths of delays under consideration. Each conclusion is case specific: whether a delay is unreasonable is to be assessed in all the circumstances. Significantly, each case will be considered in the context of the relevant statutory scheme. For example, the FOI Act is not directly concerned with matters affecting the liberty of a person, unlike a migration context where detention may be in issue, which may impact on any assessment of whether a delay is unreasonable: cf BMF16.

46 An assessment in all the circumstances does not preclude a finding that a delay is unreasonable in circumstances where the explanation provided refers to resourcing of the agency. Nor is that finding precluded by the principle reflected in Wei at 477: "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 its administrative functions under the legislative provisions" (see [27] above).

47 Fourth, the broad discretion given to the Information Commissioner in relation to the manner in which an IC review is to be conducted is subject to the exhortations in s 55(4) of the FOI Act. The exhortations include that the IC review is to be conducted with as little formality and technicality as possible and "in as timely a manner as is possible given" specified matters (ss 55(4)(a), (c)). Patrick v Australian Information Commissioner [2024] FCAFC 93