Background
Hang Li complained to Australia Post about workplace health and safety issues, including allegedly overloaded delivery pallets. Comcare investigated and prepared an inspector’s report. When Li requested the report under the Freedom of Information Act 1982 (Cth), Comcare refused access in August 2021, relying on conditional public-interest exemptions concerning personnel management and the proper and efficient conduct of operations.
Li sought Information Commissioner review. After a delay of about three years and nine months, Comcare set aside its refusal in May 2025 and granted full access to the report; Li had also obtained an unredacted copy through separate court proceedings involving Australia Post. The Commissioner then decided not to continue the review because there were no remaining issues within its scope. Li brought ADJR Act proceedings challenging both the Commissioner’s delay and discontinuance decision, and Comcare’s original refusal.
The Court’s Holding
Justice Wheelahan dismissed the proceeding and ordered Li to pay costs. The Court refused to extend time for a judicial-review challenge to Comcare’s original refusal. Although Li had an acceptable explanation for not suing earlier while the statutory merits-review process was underway, an extension would be futile because the challenge was not competent.
Once Comcare set aside its refusal and substituted a decision granting full access, the original decision had no continuing legal or practical effect. Li was therefore not a “person aggrieved” by that spent decision when he commenced the proceeding. His past inconvenience, expense, and dissatisfaction with the original reasons did not supply present standing under the ADJR Act.
The Court also held that Li had no reasonable prospects against the Information Commissioner. The Commissioner’s decision not to continue the review meant there was no continuing failure to make a decision capable of supporting an unreasonable-delay claim. And it was not legally unreasonable to end the review after Comcare had granted full access, because the substituted decision was the decision under review and the application was lacking in substance.
Key Takeaways
- An FOI refusal set aside and replaced by a full-access decision becomes inoperative; a later judicial-review applicant may lack standing to challenge it.
- ADJR Act review for unreasonable delay requires a continuing failure to make the relevant decision.
- An Information Commissioner may discontinue an IC review after the agency grants the requested access and no live review issue remains.
Why It Matters
The decision confirms that judicial review is directed to operative administrative decisions and available statutory remedies, not retrospective declarations about an earlier refusal that has been superseded. It also illustrates how a lengthy IC-review delay may be concerning without producing an available ADJR Act remedy once the review has ended.
For FOI practitioners, the case underscores the effect of s 55G: an agency’s substituted access decision changes the subject matter of the IC review, and may eliminate the practical basis for litigation over the original refusal.