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Common(wealth) Knowledge #53: Court finds 'broken' system responsible for FOI request delays

Federal Court ruling backs review into the Australian Information Commission.

Former Rex Patrick Team senator Rex Patrick has lost his challenge over the ‘unreasonable delay’ of over 20 Freedom of Information (FOI) applications, after the Federal Court of Australia ruled that the delay was caused by a broken system, rather than the Australian Information Commissioner.

Under the Freedom of Information Act 1982 (Cth), FOI requests allow any person to seek the right of access to government documents and records. This includes documents relating to the stage three tax cuts, which the Senator had requested.

FOI requests were brought in as part of the administrative law reforms in the 1970s and 1980s. It was intended to help allow the public to keep decision-makers in the executive branch of government accountable, by allowing the public access to the documents behind every decision.

It sits alongside judicial review, which allows members of the public to use the courts to challenge executive decisions. Under judicial review, if the courts can establish legal fault by the decision-maker, they can request that the decision be remade. Check out Common(wealth) Knowledge #20 for more on this system.

Senator Patrick sought to use the judicial review system to challenge the lengthy delays by the Australian Information Commissioner in granting his requests, as he had been waiting for a resolution for 2-3 years. He claimed that some reviews took up to 5 years.

He relied on Section 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), which states that if the law does not require a decision to be made within a set period of time, but a person has a duty to make a decision and fails to do so, Senator Patrick could bring a challenge in court to determine if there has been an ‘unreasonable delay.’

Justice Wheelahan, who heard Patrick v Australian Information Commissioner (No 2) [2023], recognised that when the Information Commissioner agreed to undertake a review or request, unless certain circumstances arose, there could be a ‘duty to make a decision’ for the purposes of Section 7(1).

When it came to considering whether there was an ‘unreasonable delay,’ Wheelahan J referred to two passages from Thornton v Repatriation Commission (1981) by Justice Fisher, at pages 290 and 292, respectively:

“In my opinion a delay is unreasonable if it can be said that no reasonable man acting in good faith would in the circumstances have approved the delay.”

“The question is whether there are circumstances which a reasonable man might consider 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 …”

Wheelahan J observed that the Information Commissioner had limited resources and staff available, in comparison to the number of FOI requests the Commissioner received. This means that the Commissioner has to choose to prioritise certain requests to make “the best use of those limited resources.” The system was also underfunded, because Parliament had not supplied the Commissioner with the necessary finances.

Given these circumstances, Wheelahan J concluded that a delay of 2-3 years for the 7 information requests reviewed in this case was not unreasonable. The Commissioner was simply unable to review these requests, as there were other, more important, FOI requests.

In addition, because the Commissioner assessed each case’s priority based on its merits and how urgently the circumstances meant it should be resolved, there was no ‘improper use of power’ by pushing back Senator Patrick’s request. The Commissioner assessed each case objectively, and there were cases that had been waiting for even longer than the Senator’s requests.

Ultimately, the FOI requests were delayed, but not by any fault of the Commissioner. The blame fell on the broken system itself, and the Federal Court does not have the jurisdiction or authority to tell the government how it should be spending its money.

The remedy sought by Senator Patrick was that the Senator’s request should be moved to the front of the queue. However, Wheelahan J said that the separation of powers prevents ‘judicial interference’ in how the executive prioritises and manages its workload. It was simply not appropriate for a court to tell the Information Commissioner how they should spend their time reviewing FOI requests.

Given that the previous Information Commissioner served less than 1 year of his 5-year term, and the current Labor government has already agreed to overhaul the Administrative Appeals Tribunal, it is unsurprising that in March 2023 the Senate agreed to conduct a review into the FOI system and the Commissioner’s office.

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Thornton v Repatriation Commission (1981) 52 FLR 285; [1981] FCA 71.


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