FOI Request - Section 44 of the Constitution

Caitlin Huntington made this Freedom of Information request to Department of the Prime Minister and Cabinet

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This request has been withdrawn by the person who made it. There may be an explanation in the correspondence below.

Dear Department of the Prime Minister and Cabinet,

This is an FOI request under the Freedom of Information Act 1982.

I wish to obtain copies of all documents on the following file, which is listed in the Department's Indexed List of Files for the period 1 January 2012 to 1 July 2012 (http://www.dpmc.gov.au/accountability/fi...

2012/1766 SECTION 44 OF THE CONSTITUTION - BRIEFING - 2012 TO 2014 - (GOVPG)

Yours faithfully,

Caitlin Huntington

Matthew Landauer left an annotation (November 30, 2012)

For reference, section 44 "lists the grounds for disqualification on who may become a candidate for election to the Parliament of Australia."

http://en.wikipedia.org/wiki/Section_44_...

FOI 2012 100 Huntington Acknowledgement letter.pdf

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Good afternoon Ms Huntington,

Please see the attached correspondence in relation to your FOI request.

Regards

FOI Action Officer
Legal Policy Branch
Department of the Prime Minister and Cabinet

Phone: 02 6271 5849
Email: [DPMC request email]

-----Original Message-----
From: Caitlin Huntington [mailto:[FOI #27 email]]
Sent: Thursday, 29 November 2012 8:59 PM
To: FOI
Subject: Freedom of Information request - FOI Request - Section 44 of the Constitution

Dear Department of the Prime Minister and Cabinet,

This is an FOI request under the Freedom of Information Act 1982.

I wish to obtain copies of all documents on the following file,
which is listed in the Department's Indexed List of Files for the
period 1 January 2012 to 1 July 2012
(http://www.dpmc.gov.au/accountability/fi...

2012/1766 SECTION 44 OF THE CONSTITUTION - BRIEFING - 2012 TO 2014
- (GOVPG)

Yours faithfully,

Caitlin Huntington

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[FOI #27 email]

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FOI 2012 100 Huntington Consultation Notice 06 12 12.pdf

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Dear Ms Huntington,

Please see the attached correspondence in relation to your FOI request.

Regards

FOI Action Officer

Legal Policy Branch

Department of the Prime Minister and Cabinet

Phone: 02 6271 5849

Email: [1][DPMC request email]

[2]Description: Description: Description: Description: Description: FOI
design element

______________________________________________________________________

IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message,
you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If
you
have received this message in error, please notify the sender immediately
by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________

References

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Dear FOI,

Thank you for your advice.

Firstly, I note your letter of 6 December 2012 is entitled "consultation notice." It is not clear from the contents of that letter, however, whether you are, in fact, advising me that consultation is required.

Could you advise me whether or not this is, in fact, a notice advising me that consultation is required under the requirements of the Act? As you are aware, if there is no consultation required, the timeframe for responding to this request cannot be extended under the Act by 30 days for the reason of consultation.

Given your comments in your letter of 6 December 2012 regarding the scope, I will limit the scope of my request to:

"All documents created by or for a Commonwealth entity (including ministers and members of parliament, the parliamentary departments, the Australian Government Solicitor (AGS) and the Commonwealth Solicitor-General) on the file 2012/1766 SECTION 44 OF THE CONSTITUTION - BRIEFING - 2012 TO 2014 - (GOVPG)"

Yours sincerely,

Caitlin Huntington

Dear Ms Huntington,
Thank you for your email of 10 December. The purpose of our correspondence was to provide some advice about the type of documents on the file and to consult with you regarding the scope of your request. It was not a formal notice advising of a need to consult under the FOI Act which might have affected the period within which the Department is required to provide a decision. Were such a need to arise, we would advise you of that and the effect on the processing period. The decision-maker is currently considering your revised scope.

Regards

FOI Action Officer
Legal Policy Branch
Department of the Prime Minister and Cabinet

Phone: 02 6271 5849
Email: [email address]

Please note that the Department of the Prime Minister and Cabinet will be closed for business from Tuesday 25 December until the return to normal business on Wednesday 2 January 2013.

-----Original Message-----
From: Caitlin Huntington [mailto:[FOI #27 email]]
Sent: Monday, 10 December 2012 5:25 PM
To: FOI
Subject: Re: FOI2012/100 - C Huntington - Section 44 - Consultation Notice [DLM=For-Official-Use-Only]

Dear FOI,

Thank you for your advice.

Firstly, I note your letter of 6 December 2012 is entitled
"consultation notice." It is not clear from the contents of that
letter, however, whether you are, in fact, advising me that
consultation is required.

Could you advise me whether or not this is, in fact, a notice
advising me that consultation is required under the requirements of
the Act? As you are aware, if there is no consultation required,
the timeframe for responding to this request cannot be extended
under the Act by 30 days for the reason of consultation.

Given your comments in your letter of 6 December 2012 regarding the
scope, I will limit the scope of my request to:

"All documents created by or for a Commonwealth entity (including
ministers and members of parliament, the parliamentary departments,
the Australian Government Solicitor (AGS) and the Commonwealth
Solicitor-General) on the file 2012/1766 SECTION 44 OF THE
CONSTITUTION - BRIEFING - 2012 TO 2014 - (GOVPG)"

Yours sincerely,

Caitlin Huntington

-----Original Message-----

Dear Ms Huntington,

Please see the attached correspondence in relation to your FOI
request.

Regards

FOI Action Officer

Legal Policy Branch

Department of the Prime Minister and Cabinet

Phone: 02 6271 5849

Email: [1][DPMC request email]

[2]Description: Description: Description: Description:
Description: FOI
design element

References

Visible links
1. mailto:[DPMC request email]

-------------------------------------------------------------------
Please use this email address for all replies to this request:
[FOI #27 email]

Disclaimer: This message and any reply that you make will be
published on the internet. Our privacy and copyright policies:
http://www.righttoknow.org.au/help/offic...

If you find this service useful as an FOI officer, please ask your
web manager to link to us from your organisation's FOI page.

-------------------------------------------------------------------

______________________________________________________________________

hide quoted sections

FOI2012 100 C Huntington Charges letter.pdf

846K Download View as HTML

Good afternoon Ms Huntington,

Please find attached correspondence in relation to your FOI request.

Regards

FOI Action Officer
Legal Policy Branch
Department of the Prime Minister and Cabinet

Phone: 02 6271 5849
Email: [email address]

Please note that the Department of the Prime Minister and Cabinet ceases normal business for the Christmas period starting Tuesday 25 December 2012 up to and including Tuesday 1 January 2013, returning to work on Wednesday 2 January 2013.

______________________________________________________________________

hide quoted sections

Dear FOI,

I refer to your letter of 17 December 2012 advising me, inter alia, that the decision maker intended to impose charges of $26.95 relation to my FOI request, and offering me the option to seek to have the charges waived.

Firstly, I wish to receive the documents in PDF form and via reply email. Accordingly, there is no need to impose the charge of 50 cents in relation to photocopying.

I wish to have the other proposed charges waived in full as I believe that it is in the public interest to do so. This is so for the following reasons:

1. Nothing in the documents in question relates to me; and I have no private or commercial interest in their release. The only remaining relevant interest to be furthered by their release is the public interest. Therefore, charges should not be imposed.

2. As the delegate may be aware, the charges levied under the FOI Act are well below a rate that would amount to cost recovery. In this case, the charges are negligible and trivial. The levying of charges in this case would impose a further administrative burden upon the Commonwealth through the recording of time, the raising of invoices and the receipt, processing of, and accounting for, any monies received. This administrative burden would be greater than any monetary benefit received by the Commonwealth. Accordingly, a decision to impose charges in this case would not be a decision that ensured the efficient use of Commonwealth resources, and would, therefore, be contrary to the public interest.

3. The Australian Constitution includes an implied right to freedom of communication in relation to political and governmental affairs. In Langer v ABC, the High Court identified the the High Court held that:

"Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be "directly chosen by the people" of the Commonwealth and the States, respectively."

Further, it held that:

"...ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power."

It went on to hold that the freedom of political communication was not absolute, and may be diminished in order to pursue a legitimate purpose that is compatible with the constitutionally prescribed system of representative and responsible government, and when any limitations is reasonably and appropriately adapted to achieving that purpose.

In relation to the dissemination of information regarding political and governmental affairs, it said:

"Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters."

The documents in question relate to the section 44 of the Constitution, which relates to eligibility for being elected as a member of Parliament, or to continue as a member of Parliament. The subject matter of the files in question place them squarely within the political discourse about who should or should not be elected to Parliament. The delegate now proposes to charge me $26.95 to obtain said information.

While the FOI Act creates a free-standing right to obtain government information, much government information will not pertain to political or governmental matters. However, in this case, the information plainly does. As already observed, the charging regime under the FOI Act does not, in fact, create a cost recovery scheme. I note that the delegate has a discretion in relation to the charging of fees.

While in relation to matters not affecting political and governmental affairs, the delegate may have a relatively unfettered discretion, his actions in relation to FOI requests regarding political and governmental affairs must be shoehorned into the constitutional restraints upon executive action established by, inter alia, Langer. In particular, he may not exercise the executive power conferred upon him by the FOI Act in a manner that curtails my right to obtain information about political and governmental matters, or not abandon his duty to provide information regarding political and governmental affairs, unless that curtailment or abandonment is in furtherance of a legitimate purpose compatible with Australia's system of representative government, and is reasonably and appropriately adapted to that end.

The delegate has not sighted any end which he seeks to achieve through the imposition of charges, nor has he shown that-were there such an end-that the charging of fees would be reasonably and appropriately adapted to achieve that end.

The delegate's proposal to impose fees in this case is merely a decision to create an impediment to me (and pre-emptively discourage others from) seeking to obtain information about political and governmental affairs under the FOI Act. This is entirely inconsistent with the constitutional restraint on any executive action that curtails or limits debate about political and governmental affairs, and is repugnant to his duty to to provide information regarding political and governmental affairs.

For these reasons, the delegate should not impose charges in this case.

Yours sincerely,

Caitlin Huntington

Henare Degan left an annotation (December 20, 2012)

Hi Caitlin,

Another useful point to make when asking charges be waived is that the documents released will be immediately posted publicly on Right To Know, thereby demonstrating the public interest nature of this this FOI request.

Cheers,

Henare

Dear Ms Huntington,
Thank you for your email of 19 December, and I confirm we received in which your request to waiver of the charges in relation to your recent FOI request. The decision-maker is currently considering your request and will take all reasonable steps to ensure you receive notification of the decision on your request for waiver as to whether to impose charges as soon as practicable.

Regards

FOI Action Officer
Legal Policy Branch
Department of the Prime Minister and Cabinet

Phone: 02 6271 5849
Email: [email address]

-----Original Message-----
From: Caitlin Huntington [mailto:[FOI #27 email]]
Sent: Wednesday, 19 December 2012 4:13 PM
To: FOI
Subject: RE: FOI2012/100 - C Huntington - Section 44 - Consultation Notice [SEC=UNCLASSIFIED]

Dear FOI,

I refer to your letter of 17 December 2012 advising me, inter alia,
that the decision maker intended to impose charges of $26.95
relation to my FOI request, and offering me the option to seek to
have the charges waived.

Firstly, I wish to receive the documents in PDF form and via reply
email. Accordingly, there is no need to impose the charge of 50
cents in relation to photocopying.

I wish to have the other proposed charges waived in full as I
believe that it is in the public interest to do so. This is so for
the following reasons:

1. Nothing in the documents in question relates to me; and I have
no private or commercial interest in their release. The only
remaining relevant interest to be furthered by their release is the
public interest. Therefore, charges should not be imposed.

2. As the delegate may be aware, the charges levied under the FOI
Act are well below a rate that would amount to cost recovery. In
this case, the charges are negligible and trivial. The levying of
charges in this case would impose a further administrative burden
upon the Commonwealth through the recording of time, the raising of
invoices and the receipt, processing of, and accounting for, any
monies received. This administrative burden would be greater than
any monetary benefit received by the Commonwealth. Accordingly, a
decision to impose charges in this case would not be a decision
that ensured the efficient use of Commonwealth resources, and
would, therefore, be contrary to the public interest.

3. The Australian Constitution includes an implied right to freedom
of communication in relation to political and governmental affairs.
In Langer v ABC, the High Court identified the the High Court held
that:

"Freedom of communication on matters of government and politics is
an indispensable incident of that system of representative
government which the Constitution creates by directing that the
members of the House of Representatives and the Senate shall be
"directly chosen by the people" of the Commonwealth and the States,
respectively."

Further, it held that:

"...ss 7 and 24 and the related sections of the Constitution
necessarily protect that freedom of communication between the
people concerning political or government matters which enables the
people to exercise a free and informed choice as electors. Those
sections do not confer personal rights on individuals. Rather they
preclude the curtailment of the protected freedom by the exercise
of legislative or executive power."

It went on to hold that the freedom of political communication was
not absolute, and may be diminished in order to pursue a legitimate
purpose that is compatible with the constitutionally prescribed
system of representative and responsible government, and when any
limitations is reasonably and appropriately adapted to achieving
that purpose.

In relation to the dissemination of information regarding political
and governmental affairs, it said:

"Accordingly, this Court should now declare that each member of the
Australian community has an interest in disseminating and receiving
information, opinions and arguments concerning government and
political matters that affect the people of Australia. The duty to
disseminate such information is simply the correlative of the
interest in receiving it. The common convenience and welfare of
Australian society are advanced by discussion - the giving and
receiving of information - about government and political matters."

The documents in question relate to the section 44 of the
Constitution, which relates to eligibility for being elected as a
member of Parliament, or to continue as a member of Parliament. The
subject matter of the files in question place them squarely within
the political discourse about who should or should not be elected
to Parliament. The delegate now proposes to charge me $26.95 to
obtain said information.

While the FOI Act creates a free-standing right to obtain
government information, much government information will not
pertain to political or governmental matters. However, in this
case, the information plainly does. As already observed, the
charging regime under the FOI Act does not, in fact, create a cost
recovery scheme. I note that the delegate has a discretion in
relation to the charging of fees.

While in relation to matters not affecting political and
governmental affairs, the delegate may have a relatively unfettered
discretion, his actions in relation to FOI requests regarding
political and governmental affairs must be shoehorned into the
constitutional restraints upon executive action established by,
inter alia, Langer. In particular, he may not exercise the
executive power conferred upon him by the FOI Act in a manner that
curtails my right to obtain information about political and
governmental matters, or not abandon his duty to provide
information regarding political and governmental affairs, unless
that curtailment or abandonment is in furtherance of a legitimate
purpose compatible with Australia's system of representative
government, and is reasonably and appropriately adapted to that
end.

The delegate has not sighted any end which he seeks to achieve
through the imposition of charges, nor has he shown that-were there
such an end-that the charging of fees would be reasonably and
appropriately adapted to achieve that end.

The delegate's proposal to impose fees in this case is merely a
decision to create an impediment to me (and pre-emptively
discourage others from) seeking to obtain information about
political and governmental affairs under the FOI Act. This is
entirely inconsistent with the constitutional restraint on any
executive action that curtails or limits debate about political and
governmental affairs, and is repugnant to his duty to to provide
information regarding political and governmental affairs.

For these reasons, the delegate should not impose charges in this
case.

Yours sincerely,

Caitlin Huntington

______________________________________________________________________

hide quoted sections

image001.png

3K Download
FOI 2012 100 Signed Charges Decision.pdf

2.5M Download View as HTML
FOI2012 100 C Huntington Charges letter.pdf

846K Download View as HTML

Dear Ms Huntington,

Please find attached correspondence in relation to your freedom of
information request.

Regards,

FOI Adviser

Legal Policy Branch

Department of the Prime Minister and Cabinet

Phone: 02 6271 5849

Email: [1][DPMC request email]

[2]Description: Description: Description: FOI design element

______________________________________________________________________

IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message,
you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If
you
have received this message in error, please notify the sender immediately
by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________

References

Visible links
1. mailto:[DPMC request email]

hide quoted sections

1 follower

Right to Know

FOI Request - Section 44 of the Constitution

Matthew Landauer left an annotation (November 30, 2012)

1 Attachment

2 Attachments

1 Attachment

Henare Degan left an annotation (December 20, 2012)

3 Attachments

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