FOI REQUEST documents in accordance with the Freedom of Information Act 1982

Brett Wilson made this Freedom of Information request to Department of the Prime Minister and Cabinet

Waiting for an internal review by Department of the Prime Minister and Cabinet of their handling of this request.

From: Brett Wilson

Delivered

Dear Department of the Prime Minister and Cabinet,

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

Hope you are all well and not suffering from the not so infectious and elusive Covid 19 alleged Dooms Day Virus?

Yours faithfully,

brett alan: wilson

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From: FOI
Department of the Prime Minister and Cabinet


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OFFICIAL

 

Dear Mr Wilson

 

We refer to your email of 30 March 2020 in which you made a request to the
Department of the Prime Minister and Cabinet (the Department) under the
Freedom of Information Act 1982 (FOI Act) in the following 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

 

Request for clarification

 

Your request refers to the Department as “Holder Type: Other
Unincorporated Entity” and provided the ABN 18 108 001 191. The ABN LookUp
website ([1]https://abr.business.gov.au/Help/EntityT... contains a
definition of ““Other Unincorporated Entity” which includes a reference to
“constitution”, i.e. “An other unincorporated entity is a number of people
grouped together by a common purpose with club-like characteristics, for
example, a sporting club, social club or trade union. Some club-like
characteristics are that … there is a constitutional arrangement for
meetings of members and for appointing officers.”

However, when the ABN 18 108 001 191 is entered on the ABN Lookup website
( [2]https://abr.business.gov.au/Search/Index), the information shows the
Entity Type as ”Commonwealth Government Entity”.  Our relevant line area
has advised that the Department is a Non-corporate Commonwealth Entity
(NCE). Information published by the Department of Finance
([3]https://www.finance.gov.au/about-us/glos...
provides that “NCEs are established under power that comes from the
Constitution, usually through legislation and the exercise of executive
power.”  

 

Accordingly, 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.

 

The Department notes that if you are requesting access to the Australian
Constitution, that document is publicly available at
[4]https://www.aph.gov.au/About_Parliament/....

 

Yours sincerely

 

FOI Adviser

FOI and Privacy | Legal Policy Branch

Government Division | Department of the Prime Minister and Cabinet

p. (02) 6271 5849

e. [5][DPMC request email] | w. [6]www.pmc.gov.au

One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600

 

[7]Title: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present. -
Description: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present.

show quoted sections

References

Visible links
1. https://abr.business.gov.au/Help/EntityT...
2. https://abr.business.gov.au/Search/Index
3. https://www.finance.gov.au/about-us/glos...
4. https://www.aph.gov.au/About_Parliament/...
5. mailto:[DPMC request email]
6. http://www.pmc.gov.au/

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From: Brett Wilson

Delivered

Dear FOI Officer,

Thank you for your reply.

THE DEPARTMENT OF THE PRIME MINISTER AND CABINET is defined as an Other ''Unincorporated Entity.''

You claim that NCEs are established under power that comes from the Australian Constitution, usually through legislation and the exercise of executive power.”

I am not referring to the Powers of Parliament or Executive Power under the Australian Constitution, I am referring to powers of the Parliament or Executive Power under the Constitution of the Australian Commonwealth, the Constitution as contained and published under Covering Clause 9 of the Commonwealth Constitution Act 1900 (UK), the lawful Constitution that is binding on everyone under Covering Clause 5 including all those people who sit in the Parliament and your office.

Does the Executive Power '' source of this power'' in this case that you write about, come from the Constitution of the Australian Commonwealth, the Constitution as contained and published under Covering Clause 9 of the Commonwealth of Australia Constitution Act 1900 (UK)? Or is their a second Constitution called ''The Australian Constitution'' operating along side of the Commonwealth of Australia Constitution Act 1900 (UK)? If their is a second Constitution being used as a source of power by your office and the parliament, could you please provide a copy of the Act of Parliament or legal instrument that allowed for its valid creation and use?

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.

An Unincorporated Entity is simply the group itself, of people, who has agreed to come together to pursue a common purpose, such as to establish the 'Prime Minister and Cabinet.

Therefore, it is my understanding, that an unincorporated entity or association cannot enter into contracts in its own name, or own land, or employ people, or sue or be sued, but its members can be personally held liable in Tort for any damage or fraud they might have caused or been involved in.

The Constitutional Commission of 1988 issues Booklet pages 11 and 12 discussed The Prime Minister and Cabinet. The Commission published on page 12 that: ''The Constitution, however, refers only to the Governor-General and the Federal Executive Council which advises him (s.64). There is no reference in the text of the Constitution to the prime minister and cabinet.''

They then ask the following questions:

2. Should the cabinet and/or ministry be recognised by the Constitution?
3. Should the Office of prime minister be recognised by the Constitution?

This establishes the Prime Minister and Cabinet is not Constitutionally recognised and perhaps why it has been established as an NCE, that should have its own Constitution in accordance with good governance and policy.

I 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.

Yours sincerely,

Brett Wilson

Link to this

From: FOI
Department of the Prime Minister and Cabinet


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OFFICIAL

 

FOI/2020/073

 

Dear Mr Wilson

 

Thank you for your email dated 30 March 2020 to the Department of the
Prime Minister and Cabinet (the Department), in which you made a request
to the Department under the Freedom of Information Act 1982 (the FOI Act)
in the following 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 wrote to you seeking clarification of the
terms of request.  You responded to the Department on 22 April 2020,
providing additional background information and confirming the terms of
the request 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.

 

Timeframe for receiving your decision

 

We received your valid request on 22 April 2020 and the 30 day statutory
period for processing your request commenced from the day after that date.
You should therefore expect a decision from us by 22 May 2020. The period
of 30 days may be extended in certain circumstances. We will advise you if
there is any extension of time.

 

Charges

 

Agencies may decide that an applicant is liable to pay a charge in respect
of a request for access to documents. If the Department decides that you
are liable to pay a charge, we will send you a preliminary assessment of
the charge as soon as possible.

 

Publication of documents

 

Please note that information released under the FOI Act may later be
published online on our disclosure log at
[1]https://www.pmc.gov.au/government/depart...,
subject to certain exceptions. If you think you might wish to raise any
objections to the publication of any of the information which may be
released to you please contact us by email at [2][DPMC request email].  If you
do wish to object to the publication of information, you would need to
provide supporting reasons.

 

Exclusion of officers’ names and contact details

 

For documents that fall within scope of the request, it is the
Department’s policy to withhold:

·       any person’s signature;

·       the names and contact details of Australian Public Service
officers not in the Senior Executive Service (SES);

·       the mobile or direct numbers of SES officers;

·       the names and contact details of Ministerial staff at a level
below Chief of Staff.

 

The names and other details of SES officers will not be withheld unless
there is some reason for that information to be exempt from release. If
you require signatures, the names and contact details of non-SES officers
or Ministerial staff below the level of Chief of Staff, or the mobile or
direct numbers of SES officers please let us know at [3][DPMC request email] so
the decision-maker may consider; otherwise we will take it that you agree
to that information being excluded from the scope of your request (that
is, the information will be treated as irrelevant and redacted from any
documents for release).

 

We will write again when the Department has more information.  Further
information on FOI processing can be found at the website of the Office of
the Australian Information Commissioner
[4]https://www.oaic.gov.au/freedom-of-infor....

 

Sincerely

 

 

FOI Adviser

FOI and Privacy | Legal Policy Branch

Government Division | Department of the Prime Minister and Cabinet

p. (02) 6271 5849

e. [5][DPMC request email] | w. [6]www.pmc.gov.au

One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600

 

[7]Title: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present. -
Description: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present.

 

 

show quoted sections

References

Visible links
1. https://www.pmc.gov.au/government/depart...
2. mailto:[DPMC request email]
3. mailto:[DPMC request email]
4. https://www.oaic.gov.au/freedom-of-infor...
5. mailto:[DPMC request email]
6. http://www.pmc.gov.au/

Link to this

From: Brett Wilson

Delivered

Dear FOI Officer, Department of the Prime Minister and Cabinet

Thank you for your reply, regarding extension of time, please be aware of the following Section where you do not have the luxury of advising of an extension of time, it is something you must request and that I must agree with and not something your office has the authority to direct without my consent to an extension of time.

FREEDOM OF INFORMATION ACT 1982 - SECT 15AA
Extension of time with agreement
An agency or Minister may extend the period referred to in paragraph 15(5)(b) for dealing with a request, or that period as extended under subsection 15(6) or (8) (consultation), by a further period of no more than 30 days if:

(a) the applicant agrees in writing to the extension; and

(b) the agency or Minister gives written notice of the extension to the Information Commissioner as soon as practicable after the agreement is made.

I also draw you attention to SECT 3 A:

FREEDOM OF INFORMATION ACT 1982 - SECT 3A
Objects--information or documents otherwise accessible
Scope

(1) This section applies if a Minister, or an officer of an agency, has the power to publish, or give access to, information or a document (including an exempt document) apart from under this Act.

Publication and access powers not limited

(2) The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power:

(a) in the case of the power to publish the information or document--despite any restriction on the publication of the information or document under this Act; and

(b) in the case of the power to give access to the information or document--whether or not access to the information or document has been requested under section 15.

You have stated that it is is the Department’s policy to withhold certain names etc. Please be aware of ''Extended'' Ultra Vires: Refusal to Exercise a Discretion. The common law theory is that where decision-making power is vested in individuals, they must genuinely and independently exercise it. The doctrine is that they cannot abdicate their responsibility, either by blindly applying policy, accepting the dictates of another person or handing the power to someone else. Please remember that internal policy is not law, it must be consistent with Statute and you must provide information IAW your obligations under the FOI Act for example:

FREEDOM OF INFORMATION ACT 1982 - SECT 8D

(1) An agency must publish information that is required or permitted to be published under this Part in accordance with this section.

How (and to whom) information is to be published

(2) The agency must publish the information:

(a) to members of the public generally; and

(b) if the agency considers that it is appropriate to do so--to particular classes of persons or entities.

Note 1: The agency must have regard to the objects of this Act and guidelines issued by the Information Commissioner in performing functions, and exercising powers, under this section (see section 9A).

Note 2: After access is given to a document under Part III (access to documents) in accordance with a request, the agency must publish the accessed document to members of the public generally in the same way as described in this section (although certain exceptions apply) (see section 11C).

Yours sincerely,

Brett Wilson

Link to this

From: FOI
Department of the Prime Minister and Cabinet


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Attachment FOI 2020 073 Signed decision.pdf
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Attachment 2020 073 attachment.pdf
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OFFICIAL

 

Dear Mr Wilson

 

Please see attached the decision in response to the request you made to
the Department of the Prime Minister and Cabinet under the Freedom of
Information Act 1982.

 

Sincerely

 

 

FOI Adviser

FOI and Privacy | Legal Policy Branch

Government Division | Department of the Prime Minister and Cabinet

p. (02) 6271 5849

e. [1][DPMC request email] | w. [2]www.pmc.gov.au

One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600

 

[3]Title: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present. -
Description: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present.

 

 

show quoted sections

References

Visible links
1. mailto:[DPMC request email]
2. http://www.pmc.gov.au/

Link to this

From: Brett Wilson

Delivered

Dear FOI,Department of the Prime Minister and Cabinet.

Thank you for your FOI Response. There seems to be some confusion and I am requesting some further clarification. This follow up request is now a Request for Internal Review.

I brought to your attention the following entity that it is recorded with ASIC that the holder of ABN: 18 108 001 191 Holder(s) details: Holder name: THE DEPARTMENT OF THE PRIME MINISTER AND CABINET is defined as Holder type: Other Unincorporated Entity
ABN: 18 108 001 191

Organisational Representative Details: Name: Ida Pedersen
Start date: 14/01/2014.

The above has defined THE DEPARTMENT OF THE PRIME MINISTER AND CABINET as an ''Other Unincorporated Entity'' and not as a Non Registered Entity. Can you provide further clarification and information or a document that was submitted to ASIC registering THE DEPARTMENT OF THE PRIME MINISTER AND CABINET on the ASIC data base, as a Non Registered Entity which is in direct conflict with the Holder Type as listed against ABN: 18 108 001 191 being a Other Unincorporated Entity.

According to the ATO, ''an unincorporated entity It is a group of people who agree to act together as an organisation and form an association.'' I am of the assumption that this is how the Department of PM and Cabinet operates? Can you confirm this assumption? The ATO goes on to say ''The group can remain informal and its members make their own rules on how the group is managed. The rules may also be referred to as a constitution.'' Please note, this is the type of constitution of which I was referring too in my FOI request of which I was seeking a copy from your office where you have suggested in your response that it does not exist.

Because the department of PM and Cabinet is not recognised in the Commonwealth Constitution, as confirmed by the 1988 Constitutional Commission, it seems feasible that the Department of PM and Cabinet should have its own Constitution that might empower its committee members to do a certain thing?

The ATO goes on to say, ''An unincorporated association is however an entity under tax law and treated as a company for income tax purposes.'' https://www.ato.gov.au/Non-profit/Gettin...

I look forward to your review and response.

Yours sincerely,

Brett Wilson

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