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Key decisions

  • Patrick v Australian Information Commissioner [2024] FCAFC 93 (Michael Morgan)

ADMINISTRATIVE LAW

Appellant sought declaration that legal limits of Australian Information Commissioner’s authority exceeded and right to review unlawfully delayed – significant delays – whether unreasonable delay.

Patrick v Australian Information Commissioner [2024] FCAFC 93 (‘Patrick v AIC’) (Bromwich, Abraham and McEvoy JJ)

The decision of Patrick v AIC addresses the question of what constitutes unreasonable delay in making an administrative decision in circumstances where a decision maker is under a statutory duty to make a decision but there is no time limit prescribed.

Background facts

Mr Rex Patrick, the appellant and a former member of the Australian Senate, made several applications under s 11 of the Freedom of Information Act 1982 (Cth) (‘FOI Act’). These applications were made when the appellant was a senator and were for access to ‘documents of Commonwealth government agencies and official documents of Ministers’. The applications were refused (‘Refusal Decisions’) and the appellant sought further Information Commissioner Reviews (‘IC Reviews’) of the Refusal Decisions by the Australian Information Commissioner (‘AIC’) pursuant to pt VII of the FOI Act.

Procedural history

In 2021, the appellant applied to the Federal Court of Australia for declaratory relief pursuant to s 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) asserting there had been ‘unreasonable delay’ in conducting the IC Reviews. At first instance, the appellant sought declaratory relief for nine IC Reviews which was subsequently reduced to seven. The primary judge refused declaratory relief finding there had not been unreasonable delay.

Issues on appeal

The appellant then appealed to the Full Court of the Federal Court of Australia (‘FCAFC’), asserting the primary judge ‘erred in concluding… it had not been established that the delay in consideration of those applications was unreasonable’. Initially, the appeal concerned the seven IC Reviews the subject of the decision at first instance. During the appeal, however, the AIC had determined one of the IC Reviews (the ‘Sixth IC Review’) and the FCAFC was subsequently left to decide whether the primary judge erred in finding there had been no unreasonable delay for the remaining six IC Reviews in progress.

Consequently, the FCAFC had to determine two matters:

  • whether the primary judge had erred in finding there had been no unreasonable delay in advancing the IC Reviews by the AIC; and
  • if the answer to the first question is yes, whether there is some other reason for refusing the declaratory relief sought.

Legislative framework and principles

Legislation

This matter involves three Commonwealth Acts of Parliament:

  • the Australian Information Commissioner Act 2010 (Cth) (‘AIC Act’);
  • the FOI Act; and
  • the ADJR Act.

The author does not intend to repeat all the statutory provisions referred to in the FCAFC decision given the scope and limit of this case note. A full description of the relevant legislative provisions is at [7]-[18] of the FCAFC decision. For the purposes of this case note, the author refers to the following statutory provisions:

  • section 55(1) of the FOI Act which empowers the AIC to conduct a review of an IC Reviewable decision;
  • section 55K(1) of the FOI Act which imposes a duty on the AIC to, following an IC Review, affirm, vary or set aside an IC Reviewable decision; and
  • section 7(1) of the ADJR Act which provides a statutory ground of review for a person who is aggrieved by the failure of a decision maker to make a decision by reason of unreasonable delay in circumstances where the decision maker has a duty to make a decision but there is no prescribed time limit.

Legal principles

In determining whether a decision maker has caused unreasonable delay in their failure to make a decision for the purposes of s 7(1) of the ADJR Act, the courts apply a number of principles including:

  1. In the absence of a specified time limit, a decision that is required by statute to be made by a decision maker must be made within a reasonable time (Minister for Immigration and Citizenship v Li [2013] HCA 18 (‘Li’) at [102], cited in Patrick v AIC at [37]).
  2. The standard of reasonableness is a matter for statutory construction (Li at [102], cited in Patrick v AIC at [37]).
  3. The standard of reasonableness is to be assessed objectively (Thornton v Reparation Commission (1981) 35 ALR 485 at 490-491 (‘Thornton’) cited in Patrick v AIC at [37]).
  4. Whether the delay in making the decision is unreasonable is to be assessed in all the circumstances (Thornton at 493, cited in Patrick v AIC at [37]) having regard to the decision-making framework established under the relevant act (Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24 at [37], cited in Patrick v AIC at [37]). For example, a delay in making an administrative decision under the Migration Act 1958 (Cth) would be treated differently to a delay under the FOI Act as the former is concerned with the rights and liberty of the individual (Patrick v AIC at [45]).
  5. Whether there is an explanation for the delay that a reasonable person would consider satisfactory to justify the delay (Thornton at 492, cited in Patrick v AIC at [37]).
  6. The question of whether the length of the delay is unreasonable is determined by the high threshold of unreasonableness in administrative decision making as a matter of law (Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [25], cited in Patrick v AIC at [40]).
  7. The courts have no authority to dictate to Parliament or the Executive what resources should be made available to a government agency to carry out its administrative functions (Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 (‘Wei’) at 477, cited in Patrick v AIC at [27] & [46]).
  8. While a court can have regard to the lack of resources available to a government agency as part of its determination as to whether there has been an unreasonable delay in making a decision, there is a ‘limit beyond which a delay is unreasonable regardless of resourcing being an explanation for it’ (Patrick v AIC at [32], citing Wei at 477 with approval).

FCAFC decision

No unreasonable delay

Having considered and applied the above principles, the FCAFC concluded the trial judge did not err when finding there had been no unreasonable delay by the AIC in carrying out the IC Reviews.

Specifically, the FCAFC focused on the Sixth IC Review which, although finalised during the course of the FCAFC appeal and no longer in issue, was considered the high point of the appellant’s case for unreasonable delay (Patrick v AIC at [74]-[75]). At first instance, the trial judge had found that, having regard to the significant volume of work to be carried out by the AIC and the resourcing constraints within the office, the delay was not unreasonable within the meaning of s 7(1) of the ADJR Act (Patrick v Australian Information Commissioner (No 2) [2023] FCA 530 at [183]). The FCAFC affirmed that finding and held the trial judge did not err in making it.

As the FCAFC found there had been no error in the trial judge’s finding that there was no unreasonable delay for the Sixth IC Review, the FCAFC also concluded there was no error in the trial judge’s findings on the other IC Reviews, being that there was no unreasonable delay within the meaning of s 7(1) of the ADJR Act.

Discretion to refuse relief

While the decision upholding the trial judge’s findings made it unnecessary to determine whether relief should be refused on discretionary grounds, the FCAFC stated in obiter dicta that it would have refused to grant the appellant the declaratory relief sought. In making these remarks, the FCAFC held:

‘it is not appropriate to use the remedy of declaration merely as a summary recording of conclusions reached in reasons for judgment, especially when this is not relied on to advance any right or liability, as would be achieved by an order to comply with the duty, which is eschewed by the appellant’ (at [76]).

In this decision, the appellant had deliberately sought to limit the FCAFC appeal to seeking declaratory relief only. That is, the appellant did not seek any further consequential orders that should follow if the declaratory relief sought was granted. Given this and the principle articulated above, the FCAFC held it would not have granted declaratory relief in this case.


Michael Morgan is a barrister at 13th Floor St James Hall.