Explanatory Memorandum: The author wrote to the department of Foreign Affairs on August 8th 2020 to confirm if Daniel Andrews has the ability to do deals with China, specifically the Belt & Road Initiative. The department of Foreign Affairs then transferred the request to the Attorney Generals Office for processing and this was acknowledged on August 21st 2020, within 72 hours on August 24th the following story was released showing the deal angered the Morrison Government who were seeking to cancel the deal... The Freedom of Information Response concludes nothing exists to allow for Daniel Andrews to have a legal personality in relation to foreign deals with China, the response also provides the Commonwealth have initiated legislation ~ Australia's Foreign Relations (State and Territory Arrangements) Bill 2020 to provide a mechanism to prohibit such International agreements as has been undertaken by the Andrews Government.
August 8th 2020
Dear Senator,
I write to you from the State of Victoria under the Freedom of Information Act in your role as Minister for Foreign Affairs.
We beg you for your assistance in processing this FOI as quickly as possible as the people of Victoria are suffering greatly due to the actions of the Victorian Premier.
Background Information.
Australia Act 1986
2 Legislative powers of Parliaments of States
(2) It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.
The annotated Constitution "Quick & Garren" provides at page 633 only sovereign nations can deal with other sovereign nations, the State of Victoria is not a sovereign nation and fails to be able to have the power to deal or do business with another sovereign nation.
HIGH COURT OF AUSTRALIA
Barwick C.J., McTiernan, Gibbs, Stephen, Mason, Jacobs and Murphy JJ.
NEW SOUTH WALES v. THE COMMONWEALTH ;
(1975) 135 CLR 337
17 December 1975
Decisions
December 17.
The following written judgments were delivered:-
BARWICK C.J. The Seas and Submerged Lands Act 1973 (Cth) ("the Act"), passed by the Australian Parliament, came into operation on the date on which it received the Governor-General's assent, namely, 4th December 1973. The Act has several recitals. They are as follows:
36. The States have no international personality, no capacity to negotiate or enter into treaties, no power to exchange or send representatives to other international persons and no right to deal with other countries, through agents or otherwise. Their claims to international personality or to sovereignty are groundless (see Bonser v. La Macchia (1969) 122 CLR 177 ).
The Request.
- As the States of Australia agreed to unite in one indisoluble Commonwealth, and as a result fail to be sovereign nations, I request the enumerated head of power subject to the Constitution of the Commonwealth to empower a State to engage with sovereign independent nations outside of Australia in any matter whatsoever.
- Section 2(2) of the Australia Act provides that a State fails to possess any capacity to engage in relations with countries outside Australia and as a result I request any exemption granted to Daniel Andrews as Premier of the State of Victoria to engage in relations with ANY sovereign nations outside of the Commonwealth of Australia specifically China.
Thank you for processing my request.
Please be so kind as to acknowledge receipt of this request.
I look forward to a speedy result.
Aug 21, 2020, 4:35 PM
Dear Mr Darren
Freedom of Information Request FOI20/139
The Department of Foreign Affairs and Trade has transferred your request to the Attorney-General’s Department as the matters you raise may fall within our portfolio responsibilities.
I refer to your request under the Freedom of Information Act 1982 (FOI Act) for access to documents relating to
“1. As the States of Australia agreed to unite in one indisoluble Commonwealth, and as a result fail to be sovereign nations, I request the enumerated head of power subject to the Constitution of the Commonwealth to empower a State to engage with sovereign independent nations outside of Australia in any matter whatsoever, and
- Section 2(2) of the Australia Act provides that a State fails to possess any capacity to engage in relations with countries outside Australia and as a result I request any exemption granted to Daniel Andrews as Premier of the State of Victoria to engage in relations with ANY sovereign nations outside of the Commonwealth of Australia specifically China.”
If you disagree with this interpretation of your request, please let me know in writing as soon as possible.
Department of Foreign Affairs and Trade received your request on 8 August 2020 and the Attorney-General’s Department accepted the transfer of your request on 20 August 2020. The 30 day statutory period for processing your request commenced from 8 August 2020 and you should therefore expect a decision from us by 7 September 2020.
However, the period of 30 days may be extended if the department needs to consult third parties or for other reasons. We will advise you if this happens.
Where the documents within the scope of an FOI request include the personal information of junior officers of the department or other government authorities, the department’s practice is to not disclose that information (e.g., names, contact details). The names of senior officers will generally be disclosed. In addition, duplicates and incomplete email chains within the scope of the FOI request will be excluded.
Please note that, with some exceptions (such as personal information), documents released under the FOI Act may later be published online on the department’s disclosure log http://www.ag.gov.au/RightsAndProtections/FOI/Pages/Freedomofinformationdisclosurelog.aspx.
If you have any questions, please contact me by telephone on (02) 6141 6666 or by email foi@ag.gov.au.
Yours sincerely
Da Eun
FOI Case Officer
The Response.
The Remedy.
Additional Case Law in Support.
HIGH COURT OF AUSTRALIA
Barwick C.J., McTiernan, Gibbs, Stephen, Mason, Jacobs and Murphy JJ.
NEW SOUTH WALES v. THE COMMONWEALTH ;
(1975) 135 CLR 337
17 December 1975
50. As already observed, power with respect to external affairs was assigned to the Commonwealth. That power at the very least included all matters of international concern. As I have already said, "once low-water mark is passed the international domain is reached" (1975) 133 CLR 337, at p 360; (1950) 339 US, at p 719 (94 Law Ed, at p 1228) . (at p373)
51. Whilst the power with respect to external affairs is not expressed to be a power exclusively vested in the Commonwealth, it must necessarily of its nature be so as to international relations and affairs. Only the Commonwealth has international status.
The colonies never were and the States are not international persons. (at p373)
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