18 Section 7(1) of the ADJR Act provides that a person aggrieved by a failure to make a decision may apply to the Court for an order of review on the ground that there has been unreasonable delay in making the decision:
7 Applications in respect of failures to make decisions
(1) Where:
- (a) a person has a duty to make a decision to which this Act applies;
- (b) there is no law that prescribes a period within which the person is required to make that decision; and
- (c) the person has failed to make that decision;
a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.
Primary Judgment
19 The primary judgment at [5]–[7] accurately summarises his Honour's conclusions (emphasis in original):
[5] The main question in this proceeding is whether, within the framework of the applicable legislation, there have been unreasonable delays in the sense [required to engage s 7(1) of the ADJR Act]. The question raised is not whether there have been significant delays by the Information Commissioner, or whether by reference to the standards of some objective hypothetical applicant for IC review the delays have been unacceptable. A claim that the Information Commissioner has engaged in unreasonable delays in completing the applicant's applications for IC review must take account of the resources that are available to the Commissioner and the competing demands on those resources. It is for the Commissioner to determine the best and most efficient way to use the resources that are available. The Commissioner must do this having regard to the totality of the Commissioner's statutory functions, and the need to address the caseload of all applications for IC review, and not only those made by the applicant.
[6] … The picture that is painted by the evidence is that the Australian Information Commissioner has limited resources to undertake, in accordance with the applicable statutory requirements, the volume of IC reviews that are before her. The evidence supports a conclusion that the Information Commissioner takes account of the interests of all applicants for IC review in managing the best use of those limited resources. It appears that the general position is that IC reviews take a course that involves very significant delays where IC reviews may lie dormant for long periods and take years to complete. That picture was painted with great clarity as a consequence of the fact that the applicant sought relief in respect of seven IC review applications, where the causes of the lengthy delays were common and the combined force of the evidence pointed to an unquestionable shortage of resources. Whether that situation is acceptable is
