ONE NATIONAL CIRCUIT
BARTON
FOI
FOI/2020/073
FREEDOM OF INFORMATION ACT 1982
REQUEST BY:
Mr Brett Wilson
DECISION BY: Mr Mitchell Johnson
Assistant Secretary
Finance, Property and Security Branch
By ema
il: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Wilson
On 30 March 2020, you made a request (the
FOI request) under the
Freedom of Information
Act 1982 (the
FOI Act) to the Department of the Prime Minister and Cabinet (the
Department) in the following relevant terms:
IAW the FOI Act 1982, It is requested that you provide a complete copy of the
Constitution for the following entity:
Holder(s) details: Holder name: THE DEPARTMENT OF THE PRIME MINISTER
AND CABINET Holder type: Other Unincorporated Entity.
ABN: 18 108 001 191
On 14 April 2020, the Department sought clarification of your request on the basis that:
… it is unclear whether your request is for a copy of a “constitution” within the
meaning of “Other Unincorporated Entity”, or “the Constitution” within the meaning
of an NCE.
Please provide further clarification on the document you are seeking. Please note that
should you wish to make an FOI request, the processing period for your request will
commence once the Department receives a valid request that meets the requirements
of the FOI Act.
In that correspondence, the Department advised that the ABN LookUp function on the
Australian Securities and Investments Commission (ASIC) website shows that the Entity
Type for the ABN number in your request is
“Commonwealth Government Entity”. That
correspondence also advised that the Department is a non-corporate Commonwealth Entity
Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849 Fax: +61 2 6271 5776 www.pmc.gov.au ABN: 18 108 001 191
link to page 2
(NCE)
1 that has been established under power that comes from the Constitution, usually
through legislation and the exercise of executive power. The online link to the Constitution
was also included in that correspondence.
On 22 April 2020, you advised the Department, in part, as follows:
I am seeking a copy of the NCE Constitution that should be held by the
Unincorporated Entity named ''Prime Minister and Cabinet.'' The ABN below when
one views it on ASIC's web site, does not define or disclose the term: ''Non-corporate
Commonwealth Entity'', it defines it as Holder type: ''Other'' Unincorporated Entity
ABN: 18 108 001 191, Organisational Representative Details: Name: Ida Pedersen.
...
I [sic] summary, I request a copy of the The DEPARTMENT OF THE PRIME
MINISTER AND CABINET Constitution, with that office being registered and defined
as an Unincorporated Entity with ASIC.
Authorised decision-maker
I am authorised to make this decision in accordance with arrangements approved by the
Department’s Secretary under section 23 of the FOI Act.
Decision
I have decided to refuse the request under section 24A(1)(b)(ii) of the FOI Act, on the basis
that all reasonable steps have been taken to find the document, and I am satisfied that the
document does not exist.
Reasons
Section 24A(1) of the FOI Act provides that:
An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document;
and
(b) the agency or Minister is satisfied that the document:
(i)
is in the agency’s or Minister’s possession but cannot be found; or
(ii)
does not exist.
My Branch is responsible for the Department’s financial reporting obligations. Having regard
to the terms of your request and the documents held by my Branch, I am satisfied that:
• the Department has taken reasonable steps to find the requested document; and
• the requested document does not exist.
As advised by the Department on 14 April 2020 (which has been referenced above), the
Department’s Entity Type on the official ABN LookUp website is “Commonwealth
Government Entity”. We have also searched ASIC’s database which shows the Department as
1 Section 11 of the
Public Governance, Performance and Accountability Act 2013 defines non-corporate
Commonwealth Entity.
2
a “Non Registered Entity” (see
attached search result), which is defined as “An organisation
not registered with ASIC”. As this entity type is different to “Other Unincorporated Entity”,
there is no document you requested, namely “a
copy of the NCE Constitution that should be
held by the Unincorporated Entity named ''Prime Minister and Cabinet”.
I have therefore decided to refuse the FOI request under section 24A(1)(b)(ii) of the FOI Act.
Processing and access charges
I have decided not to impose processing charges in respect of the FOI request.
Review rights
Information about your rights of review under the FOI Act is available at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/.
Complaint rights
You may make a complaint to the Information Commissioner about the Department’s actions
in relation to a request. Making a complaint about the way the Department has handled an
FOI request is a separate process to seeking review of the Department’s decision.
Further information about how to make a complaint is available at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/make-an-foi-
complaint/.
Yours sincerely
Mitchell Johnson
Assistant Secretary
Finance, Property and Security Branch
22 May 2020
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Document Outline
