Patrick v Australian Information Commissioner

Case [2024] FCAFC 93

FEDERAL COURT OF AUSTRALIA

Patrick v Australian Information Commissioner [2024] FCAFC 93  

Appeal from: Patrick v Australian Information Commissioner (No 2) [2023] FCA 530
File number(s): VID 765 of 2023
Judgment of: BROMWICH, ABRAHAM AND MCEVOY JJ
Date of judgment: 11 July 2024
Catchwords:

ADMINISTRATIVE LAW — the appellant sought a declaration that the legal limits of the Australian Information Commissioner’s authority have been exceeded and his right to an Information Commissioner review unlawfully delayed — where the appellant had several ongoing applications before the Commissioner for review of decisions made by Commonwealth agencies — where there were very significant delays in undertaking the reviews — whether there had been unreasonable delay by the Commissioner in making a decision in the sense required by s 7(1) of the ADJR Act — whether appellant would have been entitled to declaratory relief if he was prima facie entitled to that relief

HELD — no unreasonable delay for the purposes of s 7(1) of the ADJR Act — appeal dismissed
Legislation:

Acts Interpretation Act 1901 (Cth) s 2B and s 25D
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 7 and s 16
Australian Information Commissioner Act 2010 (Cth) ss 5-9, 25
Australian Security Intelligence Organisation Act 1979 (Cth) ss 82L(1), 83ED(2), 83EE(1)
Federal Court of Australia Act 1976 (Cth) s 21

Freedom of Information Act 1982 (Cth) ss 3, 11, 11A, 15, 15AA, 33, 38, 45, 47, 47B-47J, 52-54E, 54W, 54Z, 55, 55G, 55K, 55T, 55U, 56, 57A

Cases cited:

ASP v Commonwealth [2016] FCAFC 145; (2016) 248 FCR 372
Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378
BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530
Davis v Military Rehabilitation and Compensation Commission [2021] FCA 1446; (2021) 174 ALD 166
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51
Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179
Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53
Thornton v Reparation Commission [1981] FCA 71; (1981) 35 ALR 485
Warramunda Village Inc v Pryde [2001] FCA 61; (2001) 105 FCR 437

Wei v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 268; (1991) 29 FCR 455

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 78
Date of hearing: 26 February 2024
Counsel for the Appellant: Mr McDonald SC and Ms Acreman
Solicitor for the Appellant: MSM Legal
Counsel for…

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AGLC
Patrick v Australian Information Commissioner [2024] FCAFC 93
Case
[2024] FCAFC 93
Decision Date

CaseChat Overview and Summary

In the case of Patrick v Australian Information Commissioner, the appellant sought a declaration that the legal limits of the Australian Information Commissioner’s authority had been exceeded and his right to an Information Commissioner review had been unlawfully delayed. The dispute arose from several ongoing applications before the Commissioner for review of decisions made by Commonwealth agencies, which experienced significant delays. The central legal issues were whether there had been unreasonable delay by the Commissioner in making decisions in the sense required by section 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), and whether the appellant would have been entitled to declaratory relief if he was prima facie entitled to that relief.

The court examined the relevant provisions of the Freedom of Information Act 1982 (FOI Act), which outline a flexible process for review and resolution, subject to certain requirements and the principle of conducting reviews in as timely a manner as possible. The court noted that the Information Commissioner's discretion in conducting reviews was balanced with the need to consider the requirements of the FOI Act and other laws, as well as to properly consider the matters before the Commissioner. The court assessed the conduct of each review in question, ultimately finding that the primary judge was not satisfied that unreasonable delay had been established in any of the six reviews considered. The court addressed potential misinterpretations of previous case law regarding resourcing and its impact on the assessment of unreasonable delay, ultimately concluding that the primary judge's approach was correct.

The court dismissed the appeal, finding no unreasonable delay for the purposes of section 7(1) of the ADJR Act. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs, to be agreed or assessed.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs to be agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The text of the provisions of Pt VII of the FOI Act provide for a process of review and resolution with the following relevant features:(1)The Information Commissioner may refer a reviewable decision to the Administrative Appeals Tribunal if satisfied that it is in the interests of justice to do so: s 54W(b), s 57A(1)(b). (2)Before undertaking an IC review, the Information Commissioner must inform the person, agency, or Minister who made the decision, or in the case of a review of a decision to grant access, the person who made the request: s 54Z.(3)Section 55 provides, in wide terms, for the manner in which an IC review is to be undertaken that is flexible in nature. The Information Commissioner may, inter alia: (a)review the decision the subject of the application by considering documents provided to the Information Commissioner; (b)conduct a review without holding a hearing; (c)conduct a review in whatever way is considered appropriate; and (d)use techniques to facilitate an agreed resolution of the matters in issue. (4)Section 55 is complemented by the powers to gather information conferred on the Information Commissioner by Div 8 of Pt VII of the FOI Act.(5)There are special provisions of the FOI Act in relation to the production of documents that are claimed to be exempt documents. The Information Commissioner may require production of a document for the purposes of deciding whether the document is an exempt document: s 55T(2). In relation to national security documents, Cabinet documents, and Parliamentary Budget Office documents, the Information Commissioner may require production of a document for inspection only if not satisfied by evidence on affidavit or otherwise that the document is an exempt document: s 55U(3).(6)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), which 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: the requirements of the FOI Act and any other law and the proper consideration of the matters before the Information Commissioner. See [47]-[52] below.(7)The Information Commissioner is authorised by s 55(2)(e) to give written directions in relation to the procedure to be followed in relation to IC reviews generally, or in relation to a particular IC review. Such a direction is not a legislative instrument: s 55(3). The Information Commissioner has published directions in relation to reviews generally.(8)At any time while an IC review is on foot, an agency or a Minister may vary, or set aside and substitute, an access refusal decision if, inter alia, it would have the effect of giving access to a document in accordance with the subject request. Where there is a variation or substitution of a decision, the Information Commissioner must deal with the IC review application as if it were an application to review the varied or substituted decision: s 55G.(9)An important provision is s 55K:55K Decision on IC review—decision of Information Commissioner(1)After undertaking an IC review, the Information Commissioner must make a decision in writing: (a)affirming the IC reviewable decision; or (b)varying the IC reviewable decision; or (c)setting aside the IC reviewable decision and making a decision in substitution for that decision.(10)Under s 55K(4), a decision on an IC review must include a statement of reasons for the decision. This obligation attracts the requirements of s 25D of the Acts Interpretation Act to set out in the statement the findings on material questions of fact and to refer to the evidence or other material on which those findings were based.Administrative Decisions (Judicial Review) Act 1977 (Cth)

Ratio Decidendi

Legal Principle Established

The primary judge then addressed the seven IC reviews in issue and made factual findings as to the conduct of the review before making the assessment as to whether unreasonable delay had been established. Suffice to say that the primary judge was not satisfied in respect to any of the reviews that unreasonable delay had been established. Relevantly, the reviews were addressed as follows: first IC review at PJ [95]-[115], second IC review at PJ [116]-[133], third IC review at PJ [134]-[147], fourth IC review at PJ [148]-[162], fifth IC review at PJ [163]-[179], and sixth IC review at PJ [180]-[183]. The seventh IC review is no longer in issue (see [3], above). Consideration Before addressing the six reviews, it is appropriate to make some general comments. 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. 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. The appellant and respondent take fundamentally different approaches to assessing whether a delay is unreasonable. 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.