Federal Court. Is the question of whether there has been unreasonable delay for the purpose of s 7(1) of the ADJR Act a matter for objective determination, the question being whether a reasonable person acting in good faith could consider the delay as appropriate or justified in the circumstances, or whether it was capricious and irrational? Can delay be justified on the basis of lack of resources?
Section 7(1) of the ADJR Act provided as follows:
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.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is the question of whether there has been unreasonable delay for the purpose of s 7(1) of the ADJR Act a matter for objective determination, the question being whether a reasonable person acting in good faith could consider the delay as appropriate or justified in the circumstances, or whether it was capricious and irrational?
Question 2: Can it be said that, although "it is not for the court to dictate to the Parliament or the Executive what resources are to be made available in order properly to carry out administrative functions under legislative provisions, ... the situation cannot be accepted in which the existence of a right created by the Parliament is negatived, or its value set at nought, by a failure to provide the resources necessary to make the right effective"?
Question 3: Is it for a judicial review applicant to show that there was unreasonable delay affecting the jurisdiction to make the decision which called for an explanation, with the persuasive onus then shifting to the decision-maker to establish what that explanation was?
The FCA answered those questions as follows: