Statutory framework
7 Before addressing the issues in more detail, it is appropriate to commence with a consideration of the statutory scheme, as both parties properly accept that any question of unreasonable delay must be in the context of the relevant statutory framework and the specific facts of the case. The primary judge at [8]–[31] outlined the statutory framework relevant to assessing unreasonable delay. The analysis is not challenged, and we adopt and endorse the descriptions his Honour gave. The applicable Acts are:
- (1) the Australian Information Commissioner Act 2010 (Cth) (AIC Act);
- (2) the FOI Act; and
- (3) the ADJR Act.
8 It is unnecessary to repeat his Honour's description and summary of the effect of that legislation in its entirety, although it is convenient to recite some aspects of it.
Australian Information Commissioner Act 2010 (Cth)
9 Section 5 of the AIC Act establishes the Office of the Australian Information Commissioner (the Office) which consists of information officers (relevantly including the AIC, referred to as the "Information Commissioner" throughout the Act: s 6) and staff. The Information Commissioner has the following functions and powers under the AIC Act, namely the information commissioner functions defined by s 7; the freedom of information functions defined by s 8; and the privacy functions, defined by s 9.
10 The Information Commissioner has powers of delegation: s 25 of the AIC Act. Prior to the commencement of amendments to s 25 on 13 December 2022, the function conferred by s 55K of the FOI Act (making a decision on an IC review) was excluded from the power of delegation: s 25(e). Following those amendments, the Information Commissioner may delegate the decision-making function under s 55K to a member of staff of the Office who is an SES employee (that is, a Senior Executive Service employee), or acting SES employee: s 25(2)(a). See also Acts Interpretation Act 1901 (Cth) s 2B.
Freedom of Information Act 1982 (Cth)
11 The relevant objects of the FOI Act are identified in s 3. That Act seeks to increase public participation in government processes, and the scrutiny, discussion, comment and review of government activities: s 3(2). Section 3(4) states an intention that "functions and powers given
