FEDERAL COURT OF AUSTRALIA
Patrick v Australian Information Commissioner (No 2) [2023] FCA 530
File number: VID 519 of 2021 Judgment of: WHEELAHAN J Date of judgment: 26 May 2023 Catchwords: ADMINISTRATIVE LAW — the applicant sought orders under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) directing the Australian Information Commissioner to make decisions on reviews of requests for documents under the Freedom of Information Act 1982 (Cth) by a specified date — where the applicant 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 the Commissioner’s conduct would result in an improper exercise of power — held: no unreasonable delay — no improper exercise of power would result — orders sought by the applicant would involve inappropriate judicial interference with the decisional freedom of an executive body — application dismissed Legislation: Acts Interpretation Act 1901 (Cth) sections 2B, 2C, 15AA and 25D
Administrative Appeals Tribunal Act 1975 (Cth) sections 32(1), 35 and 43
Administrative Decisions (Judicial Review) Act 1977 (Cth) sections 3(1), 3(5), 5(1)(e), 5(2)(h), 6(1)(e), 6(2)(h), 7(1) and 16(3)
Australian Information Commissioner Act 2010 (Cth) sections 5–12 and 25
Competition and Consumer Act 2010 (Cth) Part IVD
Crimes Act 1914 (Cth) s 4B(2)–(3)
Data-matching Program (Assistance and Tax) Act 1990 (Cth)
Freedom of Information Act 1982 (Cth) sections 11, 11A, 15AC, 22, 33, 34, 47C, 47G, 54F, 54V, 54W, 54Z, 55, 55B, 55D(1), 55DA, 55F, 55G, 55H, 55K, 55R, 55T, 55U, 56 and 57A
Freedom of Information Amendment (Reform) Act 2010 Schedule 4
Income Tax Assessment Act 1936 (Cth) sections 170 and 173
Judiciary Act 1903 (Cth) s 39B
National Health Act 1953 (Cth)
Public Governance, Performance and Accountability Act 2013 (Cth) sections 37(1), 39(1) and 46
Telecommunications Act 1997 (Cth)
Information Privacy Act 2014 (ACT)
Administrative Procedure Act of 1946, 5 U.S.C. §§ 551–559 sections 6 and 10(e)
Cases cited: AQM18 v Minister for Immigration and Border Protection [2019] FCAFC; 268 FCR 424
ASP15 v Commonwealth [2016] FCAFC 145; 248 FCR 372
Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1
Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; 187 CLR 297
Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65; 202 FCR 200
Australian Securities and Investments Commission v Hellicar [2012]; 247 CLR 345
Bidjara Aboriginal Housing and Land Company Ltd v Indigenous Land Corporation [2001] FCA 138; 106 FCR 203
BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530
Brownsville Nominees Pty Ltd v Federal Commissioner of…
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- AGLC
- Patrick v Australian Information Commissioner (No 2) [2023] FCA 530
- Case
- [2023] FCA 530
- Decision Date
CaseChat Overview and Summary
The court meticulously examined the legislative framework, the resources available to the Information Commissioner, and the procedures followed in the IC reviews. It considered the statutory obligations placed on the Information Commissioner, the discretion afforded by the FOI Act, and the factors that inform the determination of unreasonable delay under the ADJR Act. The court found that the delays experienced by the applicant did not constitute unreasonable delay as per the ADJR Act, and that the Commissioner's conduct would not result in an improper exercise of power. Furthermore, the court held that the sought orders would involve inappropriate judicial interference with the decisional freedom of an executive body, which is generally disfavored in judicial review proceedings.
As a result of this reasoning, the application was dismissed. The court did not find merit in the applicant's claims and did not grant the relief sought. The decision underscores the importance of deference to the discretion of the Information Commissioner in managing the workload and resources in conducting internal complaints reviews under the FOI Act.
Orders
Orders of the court
1. By 4.00 pm on 2 June 2023, the parties are to confer regarding:
(a) orders to give effect to reasons;
(b) costs;
(c) procedural orders for the further conduct of this proceeding; and
(d) whether the parties consent to the Court determining the above issues on the papers.
2. By 4.00 pm on 9 June 2023, the parties are to file and serve either:
(a) a joint memorandum; or
(b) separate written submissions –
on the above topics, not exceeding three pages (12 point font, 1.5 line spacing) together with proposed orders.
3. In the event that the parties file separate written submissions, then by 4.00 pm on 14 June 2023, each party may file written submissions in reply, not exceeding two pages (12 point font, 1.5 line spacing).
4. A case management hearing will be fixed on a date to be advised.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TABLE OF CONTENTS
Introduction
[1]
Overview
[5]
The legislation
[8]
Australian Information Commissioner Act 2010 (Cth)
[9]
Freedom of Information Act 1982 (Cth)
[16]
Administrative Decisions (Judicial Review) Act 1977 (Cth)
[21]
Consideration of the principal legal issues
[32]
When does the duty to make a decision on an IC review under Part VII of the FOI Act arise?
[33]
What factors inform whether delay is unreasonable delay for the purposes of s 7(1) of the ADJR Act?
[45]
Who has the onus of proof?
[58]
Are paragraphs 6(1)(e) and 6(2)(h) of the ADJR Act capable of applying to delay in making a decision on an IC review under Part VII of the FOI Act?
[61]
The resources and procedures of the Information Commissioner
[64]
Directions to be followed in IC reviews
[65]
The organisation of the Office of the Australian Information Commissioner
[66]
Resolve database
[71]
Prior to 1 February 2023
[72]
After 1 February 2023
[82]
The resources of the Information Commissioner
[86]
The IC reviews
[93]
The first IC review - MR20/00054
[95]
22 January 2020 to 14 February 2020
[110]
14 February 2020 to 17 December 2020
[111]
January 2021 to 14 January 2022
[112]
28 January 2020 to 22 February 2022
[113]
Overall delay in the first IC review
[115]
The second IC review – MR20/00424
[116]
24 April 2020 to 25 August 2022
[126]
28 April 2020 to 29 July 2022
[127]
24 August 2020 to 3 August 2022
[129]
30 September 2022 to 24 February 2023
[131]
Overall delay in the second IC review
[133]
The third IC review – MR20/00613
[134]
26 June 2020 to 28 July 2020
[142]
27 August 2020 to 20 March 2023
[143]
2 October 2020 to 20 March 2023
[145]
29 September 2020 to late 2021
[146]
Overall delay in the third IC review
[147]
The fourth IC review – MR20/00760
[148]
6 August 2020 to 18 November 2020
[157]
15 January 2021 to 2 July 2021
[159]
29 July 2021 to 20 March 2023
[161]
Overall delay in the fourth IC review
[162]
The fifth IC review – MR20/00863
[163]
30 September 2020 to 17 November 2020
[174]
17 November 2020 to 23 June 2021
[175]
14 December 2021 to 8 June 2022
[177]
Overall delay in the fifth IC review
[179]
The sixth IC review – MR20/00922
[180]
The seventh IC review – MR20/01189
[184]
30 November 2020 to 5 March 2021
[192]
5 March 2021 to 26 August 2021
[193]
26 October 2021 to 25 July 2022
[195]
9 August 2022 to 20 March 2023
[197]
Overall delay in the seventh IC review
[199]
Remedies
[200]
Conclusions
[202]
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
Ratio Decidendi
Legal Principle Established
The applicant sought a declaration under s 16(3)(b) of the ADJR Act directed to each of the IC review applications to the effect that the Information Commissioner had a duty to conduct a review by making a decision and had failed to do so such that each decision was attended by unreasonable delay. The applicant also sought an order that the Information Commissioner make a decision by a time and date fixed by the Court. Corresponding relief was sought in relation to the applicant’s claims relying on the grounds under s 6 of the ADJR Act. Consideration of the principal legal issues Before going to the evidence, I will address four principal legal issues so that the issues raised by this proceeding may be correctly framed. (1) When does the duty to make a decision on an IC review under Part VII of the FOI Act arise? The first issue is to identify when a duty to make a decision under Part VII of the FOI Act arises. The Information Commissioner relied on an amended notice of objection to competency of the applicant’s application. Section 55K, which I have set out under [20(16)] above, provides that “after undertaking an IC review, the Information Commissioner must make a decision in writing…” (italics added). The Information Commissioner claimed that, to the extent that the Commissioner had not formed a state of satisfaction that an IC review had been undertaken under Part VII of the FOI Act, alternatively to the extent that an IC review was continuing, the statutory precondition to the existence of the duty to make a decision under s 55K(1) of the Act was not satisfied, and therefore a necessary precondition for an order of review under s 7(1) of the ADJR Act was not engaged. Counsel for the Information Commissioner submitted that Part VII of the FOI Act did not require the Commissioner to make a decision under s 55K because there were a number of circumstances in which a decision by the Commissioner was not required, such as where the application was withdrawn by the applicant, and where the Commissioner determined under s 54W not to undertake or to continue an IC review. Counsel further submitted that Part VII of the FOI Act did not readily permit the point in time at which an IC review had been undertaken to be determined objectively. However, counsel submitted that the expression “after undertaking an IC review” in s 55K(1) should be understood as identifying the point in time where the decision-maker is satisfied that an assessment of the particular IC reviewable decision has been undertaken in accordance with the requirements of Pt VII of the FOI Act, and on the evidence that point in time had not been reached in relation to any of the relevant IC reviews the subject of this separate trial. The Information Commissioner further claimed that s 55(4)(c) of the FOI Act, which provides that the Commissioner must conduct the IC review in as timely a manner as possible, does not create a duty to make a decision to which the ADJR Act applies.