Page:Patrick v Australian Information Commissioner (FCAFC).pdf/20

 meaning of s 7(1) of the ADJR Act.

67 At [201], under the heading Remedies, his Honour concluded:

68 We refer also to his Honour's conclusions, recited above at [19].

69 We observe also that this appeal is in a context where, importantly, the appellant does not seek any order to compel the respondent to have this, or any of his other IC reviews determined.

70 As explained above at [60], there is no challenge to the primary judge's conclusions as to the management of IC reviews: see PJ [64]–[92] for a summary of the evidence accepted by the primary judge. Nor is there any challenge to his Honour's conclusion that it had not been shown that the Information Commissioner had acted unreasonably in the way "that the resources available for the discharge of her statutory functions have been allocated": PJ [201].

71 Given that, the explanation for the delay in this case relates to resourcing. The procedures in place for the management of this IC Review (the reasonableness of which is not challenged) have the sixth IC review awaiting allocation, in its turn. The delay has not occurred because of any act of capriciousness, negligence or oversight. There is nothing illogical or irrational about the actions which have resulted in the sixth IC review being delayed.

72 The structure of the FOI Act is described above and is unnecessary to repeat. Although, as the appellant contends, the review is to be conducted in a manner as timely as possible, the FOI Act provides no time limits and entrusts the Commissioner with the freedom of designing the process and allocating the resources, which are finite.

73 Recognising the delay is very lengthy, we nonetheless are not satisfied that this delay, although unfortunate, is unreasonable in the vitiating sense required to engage s 7(1) of the ADJR Act. The usually high threshold for a conclusion of unreasonableness of that kind has not been met. The question is not whether it should be expected that such processes would have been quicker, Patrick v Australian Information Commissioner [2024] FCAFC 93