Consideration
23 Before addressing the six reviews, it is appropriate to make some general comments.
24 First, a preliminary, but not necessarily decisive, issue is whether the primary judge misinterpreted Wei v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 268; (1991) 29 FCR 455 (Wei), with the result that his Honour approached the question of whether the delay was unreasonable in each instance on the basis that, if resourcing was an explanation for the delay, it could not be said to be unreasonable. The appellant pointed to PJ [6] and [200] to illustrate the point.
25 The appellant framed the issue as follows (emphasis in original):
Does under-resourcing of an agency (whether due to decisions beyond the agency's control or decisions as to the allocation of resources between its functions), with the 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.
30 In our view, the respondent's approach is correct.
31 Second, a proper reading of the primary judgment, viewed as a whole, reflects that the primary judge did not approach the question of unreasonableness on the basis that a delay is not unreasonable provided there was an explanation for the delay (including if resourcing was the, or a part of the, explanation).
32 The primary judge did not misapply Wei. To the contrary, the appellant's reliance on [200] of the primary judgment, the high point of his case, does no more than reflect an acceptance that Wei explains that a Court can have regard to the lack of resources when considering a question of unreasonable delay, but there is a limit beyond which a delay is unreasonable regardless of resourcing being the explanation for it. The primary judge at [200] refers to Wei at 477:
Clearly, it is not for the court to dictate to the Parliament or the Executive what resources are to be made available in order properly to carry out administrative functions under legislative provisions. Equally clearly, however, the situation cannot be accepted in which the existence of a right created by the Parliament is negatived, or its value set at nought, by a failure to provide the resources necessary to make the right effective.
33 It is plain from the primary judge's detailed analysis of each IC review application that his Honour considered each delay in the context in which it occurred. An individual assessment was undertaken in relation to each, which turned on the facts of the specific review application.
34 In so doing it is apparent, as the respondent submitted, that the primary judge considered the resources available to the respondent and the workload of the respondent's office in several different ways. The respondent identified four ways. His Honour:
(1) referred to the resource constraints of the Office as part of the context in which the reasonableness of particular case management decisions (such as decisions to allow extensions of time to agencies to provide information to the Office) were to be assessed: PJ [111], [112], [126], [160], [175]-[176];
(2) considered that staffing constraints were relevant to the assessment of whether particular alleged failures of process had materially contributed to the delay in determining particular IC reviews: PJ [131]-[133], [146], [160];
(3) considered the respondent's workload and competing priorities as part of the context for assessment of whether relatively short periods of inactivity indicated unreasonable delay: PJ [142], [157]-[158], [174], [192]; and
(4) considered the resourcing constraints and volume of IC reviews before the respondent as part of the circumstances for considering whether longer periods of inactivity indicated unreasonable delay: PJ [145], [183], [194], [197], [198].
35 This approach illustrates that his Honour undertook a more nuanced consideration of resources in each assessment than that alleged by the appellant. His Honour did not merely identify that the AIC was inadequately resourced and hold it out as the justification in turn. His approach, as reflected in the above outline, was careful and considered, meeting the practical demands of assessing whether the delay was unreasonable in all of the circumstances. That his assessments mainly (or wholly) concerned considerations of resourcing is of no moment. See: [36]-[37] below; PJ at [45]-[47].
36 Third, the approach to the assessment of whether it has been established that any of the delays were unreasonable is, as the respondent contends, to be considered like any other matter. That the explanation for the delay is in whole or part due to resourcing is one factor in the assessment. That resourcing may wholly explain the delay does not alter the approach. It does not require a prior assessment of the agency's resources (see [27] above).
37 The primary judge correctly identified the principles relevant to the assessment of unreasonable delay: PJ [45]-[57]. It may be accepted that, in the absence of specified time limits, decisions required by statute are to be made within a reasonable time: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [102]. The standard of reasonableness is a matter of statutory construction: Li at [67]. It is to be assessed objectively: Thornton v Reparation Commission [1981] FCA 71; (1981) 35 ALR 485 (Thornton) at 490-491. Whether a delay is unreasonable, or whether a decision has been made within a reasonable time, is to be assessed "in all the circumstances": Thornton at 493. See also BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 (BMF16) at [26]. It is to be determined by the Court, "having regard to the circumstances of the particular case within the context of the decision-making framework established by the [relevant Act]": Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179 at [37]. An explanation for any delay is always a relevant consideration. In Thornton at 492, in a statement frequently cited with approval, Fisher J said:
The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is, on the evidence, a delay for a considered reason and not in consequence of neglect, oversight or perversity. …
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]):
Whilst a legislative scheme may not specify a time limit, it may nevertheless throw light on what was intended as a reasonable time for the performance of the statutory duty in question. The subject matter of the power, its statutory purpose, the importance of its exercise both to the public and to the interests of the persons it is directed to address, the nature of those interests and the likely prejudicial impact upon interest-holders of any delay, as well as the practical limitations which attend the particular exercise of the power by reason of the nature of the decision required and the preparation, investigation and considerations called for, are all likely to be relevant to what, in the context of the particular legislative scheme, was intended as a reasonable time for the performance of the duty.
To my mind, the question that s 7(1) poses is really this: by reference to the statutory scheme in which the decision-making power is found, has there, in all of the circumstances, been an unreasonable delay in the making of that decision…
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]:
A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power".
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.
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)).
48 The appellant contended that the express statutory exhortation to a decision-maker to perform a function "in as timely a manner as is possible" is exceptional and emphasises the legislative intention that reviews should be completed without undue delay. He submitted that the language is only used when the Parliament wishes to place emphasis on expedition.
49 The respondent submitted that, to the contrary, the exhortation to conduct an IC review "in as timely a manner as is possible" does not require the pursuit of timeliness at the expense of the proper administration of the FOI Act or the proper consideration of the issues arising in a particular IC review. It was submitted that those issues include the application of exemptions directed to protection of important public interests. It was noted that the expression used in s 55(4)(c) is "in as timely a manner as is possible given the matters mentioned in subparagraphs (a)(i) to (iii)", which contemplates consideration of what is practical having regard to those specified matters (being the requirements of the Act, the requirements of any other law, and a proper consideration of the matters before the Information Commissioner).
50 So much may readily be accepted. Contrary to the appellant's submission, the terms of s 55(4)(c), read in context, are not properly characterised as emphasising "expedition" in the sense the appellant contends, namely that the reviews must be completed without undue delay. No time limit has been imposed, in contrast to an FOI application: s 15(5)(b) of the FOI Act. Rather, Parliament chose aspirational language in the provision to be considered within a broad framework. This approach recognises that the practical application of the IC review process and need for a proper consideration of the specific matter exist together with an applicant's interest in the timely outcome of the process.
51 The appellant was at pains to stress that s 55(4)(c) is "exceptional", despite the respondent pointing to provisions in similar terms in other statutes: see, e.g., Australian Security Intelligence Organisation Act 1979 (Cth) at ss 82L(1), 83ED(2) and 83EE(1). In any event, the statutory context highlighted by the respondent demonstrates that timeliness is a competing, rather than an overriding, priority.
52 We also note that s 55(4) is not intended to limit s 55(2), which provides that the Information Commissioner may conduct the IC review in whatever way they consider appropriate, use any technique they consider appropriate to facilitate an agreed resolution, allow a person to participate in a review by any means of communication, obtain any information from any person and make any inquiries considered appropriate, and to give written directions as to the conduct of reviews.
53 Fifth, and relatedly, the appellant's submission is that even the shortest of the delays relied on, being three months, is unreasonable. It was submitted that the importance of timeliness is reflected in the fact that the applicant is required to be notified of the decision of their initial FOI request within 30 days: FOI Act s 15(5)(b). He submitted that where decisions are required to be made at first instance in 30 days, regardless of the complexity of the review process, at no point in the process should there be a delay of three times the original timeframe to undertake any one step in the review process.
54 In effect, the appellant characterised three months as the outer limit as a reasonable time in which to conduct an IC review. However, that approach is flawed. The relevant application being decided is an IC review application, not a decision of an applicant's initial FOI request.
55 By its nature, given the procedures set out in the FOI Act, as explained above, there are steps to be undertaken before the review can even take place (and steps not necessary in relation to the initial decision given that is made by the department holding the documents sought). For example, the reviewing body must obtain the material to conduct a merits review, which is always held by another department or agency. How quickly that is complied with depends on the type of material sought. The type of request dictates the procedure that must be followed (for example, exempt or conditionally exempt material, see [12] above). The steps to be undertaken, and by implication the complexity of the process, depends on the nature of the information sought under the FOI Act. Examples in this case include requests for extensions to the provision of information, or that the agency notified the applicant that it intended to reconsider the original decisions. This highlights that there is no one size fits all approach, such that it would be incorrect to approach the assessment of whether a delay is unreasonable in any application by considering any nominated time frame as an outer limit, let alone one of three months.
56 Sixth, there is a difference between the parties as to their characterisation of the right in question. The appellant contends that it is the right to access information in accordance with the FOI Act, and not simply the right to seek a review under s 55K. It was contended that it is incorrect to separate the review process from the underlying general right. On the other hand, the respondent submitted that the relevant right is the review application, because that is a particular step in the process which is not necessarily undertaken and has its own procedures.
57 It should be noted that, as the respondent submitted, the right to access material of an agency is not unqualified. The right is qualified in at least two ways: it is "subject to this Act", and the right does not extend to exempt documents: FOI Act s 11(1)(a).
58 That said, the precise description of the right reflects a difference without a distinction. Although there must be a focus on the application in question, being the review application, the focus must be against the background of the scheme of the FOI Act which includes the (qualified) right to documents.
59 Finally, whether a delay is unreasonable is a binary decision; the assessment admits of only one right answer. It is accepted by the parties that it is necessary for this Court to decide whether delay was unreasonable and whether the primary judge's reasoning is in that regard correct: SZVFW at [18], [20], [56]-[57]. It is also accepted that in this case the assessment is to be done based on the fact finding of the primary judge, as no factual findings are challenged. Moreover, it is also to be conducted in a context where the only basis for unreasonableness relied on in the appeal are various periods of time where there is said to be a lack of activity in the conduct of the review. The corollary of that is that there is no suggestion that there is any unreasonableness based on decisions made during the IC review process, nor any suggestion of irrationality in those decisions. For example, there are instances where in a review time is taken because the agency informed the Office of Information Commissioner that it intended to issue a revised decision (see, e.g., PJ [100], [112], [119], [166], [169]-[170], [177]), that agencies requested extensions of time to provide material (see, e.g., PJ [98], [111], [119], [122]-[123], [126], [136], [153], [160], [165]-[171], [177]-[178]) and arrangements needed to be made to enable secure material to be appropriately handled (for example, PJ [121], [138]-[139]).
60 Although the appellant submitted in relation to some IC reviews that the AIC failed to progress the matter such that it resulted in unreasonable delay, there is no challenge to the primary judge's conclusions as to how the AIC handled such issues. Similarly, but importantly, there is no challenge to the decisions made by the Information Commissioner as to the allocation of resources. There is no suggestion that those decisions were unreasonable or irrational.
61 In this context it is also appropriate to recognise that it is the overall delay in the conduct of the review that is in issue, not the individual delays. That is because, as accepted by the appellant, the issue to which s 7(1) of the ADJR Act directs attention is whether there has been unreasonable delay in making a decision, not whether there have been particular delays in components of the review processes.