The IC reviews
62 Apart from the approach to the assessment of unreasonableness, referred to above, the error the appellant pointed to in each IC review is not in the primary judge's reasoning, but in each of his conclusions that unreasonableness had not been established. That is, if this Court were to come to a different conclusion in relation to any of the IC reviews, an error would have been established in relation to the primary judge's conclusion on that review.
63 The delays at the time of the hearing before the primary judge ranged from three and a half months in the fourth IC review, through to two years and six months delay in the sixth IC review. We note the seventh IC review had a three-month delay; the appellant made the submissions summarised at [53]–[54] prior to that review's determination (see [3]).
64 The appellant candidly submitted that the sixth IC review was the high point of his case. It follows that if the appellant did not succeed with this review, he could not succeed on the remaining five reviews where the facts were not as favourable to his case on delay.
65 The primary judge addressed the sixth IC review at PJ [180]–[183]. This review arose from a request to the Department of Health to access documents related to meetings of the Australian Health Protection Principal Committee since 29 May 2020 on the topic of State border closures. Ten documents fell within the request. The Department refused access to all of those documents based on the exemption in s 47B of the FOI Act, which establishes a conditional public interest exemption in relation to documents if, amongst other things, disclosure of the document would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State: PJ [180]. As at the time of the hearing before the primary judge, the IC review was awaiting allocation to a review adviser in the Reviews and Investigations Team, a team within the Office tasked with case managing IC reviews with a view to resolving those matters for which a decision is not required: PJ [82]. At that time there were approximately 193 other IC review applications also awaiting allocation to a review adviser that had been lodged earlier in time than the sixth IC review: PJ [182].
66 The length of the delay awaiting allocation (with the matter being untouched during this time) was approximately two and a half years. The primary judge recognised that was a very long period of time. His Honour concluded at [183]:
…the cause of that delay appears primarily to be the significant volume of review applications which must be dealt with, together with the resourcing constraints within the Office. I therefore do not consider that the delay has been unreasonable within the
