Government delays can be an unfortunate feature of administrative decision-making. Australians and Australian businesses waiting on a government decision, such as a freedom of information (“FOI”) request, permit application or citizenship decision (to name just a few), can find themselves in decision limbo for significant periods of time. It is not surprising then that those affected by administrative delays may want to expediate the government’s decision-making.
In recognition that persons should receive government (i.e. administrative) decisions within a timely manner, section 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) permits a person to apply to the Federal Court (or Federal Circuit and Family Court) for an order of review in respect of a government agency’s “failure to make the decision on the ground that there has been unreasonable delay in making this decision”.[1] A similar provision exists for decisions that have not been made within express statutory timeframes.
Recently, the Full Court of the Federal Court handed down an appeal judgment in Patrick v Australian Information Commissioner (“Patrick”).[2] In this case, the Court upheld the primary judge’s finding that Mr Patrick waiting almost three years for the commencement of a review of an FOI decision was not an “unreasonable delay” in the context of the ADJR Act. Although Mr Patrick was unsuccessful in his appeal, his case provides helpful guidance on establishing when an administrative delay might be legally “unreasonable”.
In this case note, special counsel Alistair Bridges and lawyer Emily Schilling break down Patrick to outline the factors that must be established to demonstrate there has been an “unreasonable delay” in administrative decision-making.
Previously, in Patrick (No 2)
Patrick is an appeal from Patrick v Australian Information Commissioner (No 2) (“Patrick (No 2)”).[3] In Patrick (No 2), former Senator Mr Rex Patrick claimed that the Australian Information Commissioner’s (“the Commissioner’s”) delay in making decisions with respect to his six FOI review requests constituted an “unreasonable delay” under s 7(1) of the ADJR Act. The lengthiest of these delays was a review that had not been allocated to a review adviser two and a half years after the application for review was lodged, during which time the application remained “untouched”.[4]
The Court held that the decision-making agency’s lack of resources was an adequate explanation for the delays and so the threshold of section 7(1) had not been satisfied. Mr Patrick appealed the decision on the basis that the primary judge had erred in concluding that the delays were reasonable.[5]
“Unfortunate” delays may not be “unreasonable” delays
In considering whether the primary judge erred in reaching his decision, the full court of the Federal Court reiterated that the following factors are relevant to the test for “unreasonable delay, starting with the proposition that, in the absence of specified time limits, decisions required by statute are to be made within a reasonable time”.[6] In assessing what is a reasonable time in such a circumstance, the Court emphasised the following requirements:
- the standard of reasonableness is a matter of statutory construction. The question to which the standard of reasonableness is addressed is whether the statutory power has been abused;[7]
- whether a delay is unreasonable is to be assessed in all the circumstances of the particular case;
- the test is objective, requiring an assessment of whether a reasonable person, acting in good faith, would consider the delay justified;[8]
- a delay may be justified if it is for a considered reason, such as the agency being under resourced or there being an unprecedented influx of requests. An explanation for any delay is always a relevant consideration; [9] and
- a delay may be unreasonable if it was a consequence of neglect, oversight or perversity.[10]
The court regarded the delays as “unfortunate”, but not unreasonable.[11] This was because:
- the test is not whether the decision-making process should have been quicker, but “whether, considering the circumstances of this review, in the context of the statutory scheme, this delay is unreasonable in that sense”;[12]
- the FOI Act enables the Commissioner to determine how to conduct reviews and provides the Commissioner with freedom to allocate finite resources. There is no express timeframe under which a decision must be made;[13]
- in considering the statutory and factual context to Mr Patrick’s case, it was evident that the decision-making agency was experiencing a significant backlog of cases and there were reviews that had been awaiting allocation longer than Mr Patrick’s reviews.[14] That was a valid explanation.
- there was no evidence that the delays were caused by “any act of capriciousness, negligence or oversight”, nor anything “illogical or irrational”.[15]
In coming to that conclusion, the court emphasised that it was not the court’s role to interfere with administrative resourcing or dictate how public resources are to be made available to public agencies.[16] So, in the circumstances, the delays were not unreasonable.
Much of the judgement focussed on the “circumstances” but the legislation under which a decision is to be made is critical. For example, the Court drew a distinction between the decisions under the FOI Act and decision in a migration context: the former is not directly concerned with matters affecting the liberty of a person whereas the latter may; the Court suggested this may impact on an assessment of whether a delay is unreasonable.
Legal errors exist in the context in which they are made
Patrick illustrates that the threshold for “unreasonable delay” can be high – and that even objectively long delays may be considered reasonable within the ADJR context. However, in the court’s own words, “each conclusion is case specific”.[17] This must necessarily be the case given (a) the focus on statutory construction in establishing what is reasonable under a specific regime and (b) the critical effect of the circumstances under which the delay occurred. Ultimately, assessing the strength of a legal position, and identifying what options may be available for judicial review, requires in-depth legal analysis.
But Patrick does highlight an important issue with respect to FOI. FOI is based on the simple proposition that everyone has a right to obtain access to documents held by a government agency or a Minister; some have described it as a “marvel” of Australia’s public law system.[18] That right is caveated, heavily by subjective standards, but it does allow a certain degree of transparency into otherwise arcane government processes. The Information and Freedom of Information Commissioners significantly boosts this transparency by offering a venue for independent review of decisions made by agencies whose sensitivities may result in the overzealous denial of access to documents – but continued, and well-reported, underfunding hampers that critical role. The delays in Patrick may not have amounted to legal errors, but they do illustrate ongoing systemic issues that remain to be addressed.
If you want to engage with the FOI system in a strategic and efficient manner, or are facing “unfortunate” administrative delays and want to know whether you may be able to expediate the government’s decision-making, please reach out to our public and administrative law team to discuss your options. In-depth legal analysis is their golf.
This memo presents an overview and commentary of the subject matter. It is not provided in the context of a solicitor-client relationship and no duty of care is assumed or accepted. It does not constitute legal advice.
[1] ADJR Act, s 7(1).
[2] [2024] FCAFC 93 (11 July 2024).
[3] [2023] FCA 530.
[4] Patrick, para [66]. With respect to the other reviews, there is some ambiguity as to the length of the delays. The judgment refers to other procedural steps taken in those reviews as extending the period of time those reviews were on foot, such as applications for extensions to provide the Commissioner materials, and notification of a revised decisions. This latter occurrence can actually be helpful, in that the revised decision can result in further disclosure before the Commissioner has decided whether further disclosure was necessary.
[5] Patrick, para [4].
[6] Minister for Immigration and Citizenship v Li [2013] HCA 18, para 67.
[7] Ibid.
[8] Patrick, para [37].
[9] Ibid.
[10] Paraphrasing Thornton v Repatriation Commission [1981] FCA 71.
[11] Patrick, para [73].
[12] Patrick, paras [67] and [73]; In Patrick v AIC (No 2), the court found that the failure of an agency to meet applicant expectations does not, in isolation, amount to the agency having acted unreasonably “in the eyes of the law”. Moreover, the fact that the agency could have taken steps to expediate decisions, and that it did not undertake these steps does not meet that it was acting unreasonably.
[13] Patrick, para [72].
[14] Patrick, para [65]; In Patrick v AIC (No 2), it was noted that the agency was experiencing a shortage of resources, which was compounded by the pandemic and a large volumes of reviews being received.
[15] Patrick, para [71]; In Patrick v AIC (No 2), the court noted that other review applicants had been waiting longer than Mr Patrick for a decision, and that Mr Patrick had not been singled out or treated differently from others.
[16] Patrick, paras [27] and [46].
[17] Patrick, para [45].
[18] In the spirit of transparency, that was us: https://moulislegal.com/knowledge-centre/yes-minister-documents-in-some-cabinets-are-not-secret/.
