Does the Constitution Empower the Parliament to create Australian Citizens? FOI19-074

The Framers of the Constitution made it quite clear that the Commonwealth could naturalize a person for, and on behalf of the British Crown to be British subjects. (Subjects of the British Crown). Citizenship is relating to where you reside regardless of nationality. The author, after discovering a proposed Bill within the Constitutional Commission Reports 1988 to Empower the Parliament to write laws for citizenship confirmed the Bill had never been presented by referendum to the electors and that the power was still lacking.

The Request

From: Darren <>
Sent: Wednesday, 6 February 2019 6:18 PM
To: FOI <foi@homeaffairs.gov.au>; Immigration Minister <Immigration.Minister@homeaffairs.gov.au>
Subject: FOI Nationality & Citizenship

 

6/02/2019

 

Dear David Coleman MP
Minister for Immigration, Citizenship and Multicultural Affairs.

 

Through my research of the Constitutional Commission Reports of 1988 it appears there is no head of power so as to empower the Parliament of the Commonwealth to make laws with respect to Nationality and Citizenship within the Commonwealth. Please see the the provided proposed Bill to change the Constitution with respect to such laws. It appears this Bill has never been enacted and the power within the Constitution is still lacking.

 

The Request:

 

I request the following under the Freedom of Information Act.

 

The head of power within the Commonwealth of Australia Constitution Act to validly empower the Parliament of the Commonwealth to make laws with respect to Nationality and Citizenship.

 

I thank you for taking the time to answer my request. Please acknowledge receipt of the request with an FOI reference number.


 

On Tue, Feb 19, 2019 at 8:03 AM FOI <foi@homeaffairs.gov.au> wrote:

UNCLASSIFIED

Good morning Mr Dickson

 

We refer to your email of 6 February 2019, below, which was sent to the Department’s FOI mailbox, and was also addressed to the Minister for Immigration, Citizenship and Multicultural Affairs.

 

The Department is responding to you in relation to your request.

 

Section 15(2)(b) of the Freedom of Information (FOI) Act 1982 states that for a request to be valid for the purposes of that Act, an applicant must provide sufficient information regarding the document being sought for a reasonable officer of the Department to be able to identify it.

 

You have asked for a “head of power within the Constitution”.  The Constitution is a document which is publicly available, and as such, is not a document that can be subject to the FOI Act (section 4 refers).

 

Your request consists of a query regarding the Constitution, and we do not regard it as a valid request for the purposes of the FOI Act.

 

We note that policy responsibility for the Constitution sits with the Attorney-General’s Department (AGD). We would therefore suggest that you raise your query with the AGD – contact details can be found here:https://www.ag.gov.au/About/Pages/Contactus.aspx.

 

As such, we do not consider that your request is a valid FOI request and will be taking no further action in relation to it.

 

With kind regards

Freedom of Information Section

FOI, Privacy and Records Management Branch

Productivity and Compliance Division | Corporate and Enabling Group

Department of Home Affairs

E: foi@homeaffairs.gov.au

 


———- Forwarded message ———
From: Darren <>
Date: Tue, Feb 19, 2019 at 11:15 AM
Subject: Re: FOI Nationality & Citizenship [SEC=UNCLASSIFIED]
To: FOI <foi@homeaffairs.gov.au>

 

Dear FOI Officer,

 

Please see the following section as this does qualify as a request for information under the Act.

Please note all other agencies have provided answers regarding heads of power under the Constitution.

 

 

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 documentdespite 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 documentwhether or not access to the information or document has been requested under section 15.


From: Darren <>
Sent: Friday, 1 March 2019 10:40 AM
To: FOI <foi@homeaffairs.gov.au>
Subject: Fwd: FOI Nationality & Citizenship [SEC=UNCLASSIFIED]

 

Dear FOI officer, can you please respond to my response in relation to your departments denial of my request.

 

Thank you.


From: FOI [mailto:foi@homeaffairs.gov.au]
Sent: 07 March 2019 5:19 PM
To: Darren <>
Subject: RE: FOI Nationality & Citizenship

 

Dear Mr Dickson

 

Thank you for your follow-up email.

 

I note that you wish to continue with a request under the FOI Act in relation to your inquiry regarding the “head of power within the Constitution”.

 

The Attorney-General’s Department (AGD) is responsible for policy regarding the Constitution.

 

Under section 16 of the FOI Act your request to access documents has been transferred as the subject matter of the information sought is more closely connected with the functions of the AGD.

 

An FOI Officer from the AGD will contact you shortly to acknowledge your request. If you wish to contact the AGD regarding your request you may do so at foi@ag.gov.au.

 

With kind regards

 

Freedom of Information Section

FOI, Privacy and Records Management Branch

Productivity and Compliance Division | Corporate and Enabling Group

Department of Home Affairs

E: foi@homeaffairs.gov.au


Dear Mr Dickson

 

Freedom of Information Request FOI19/074

 

I refer to your request under the Freedom of Information Act 1982 (FOI Act) for access to documents

the head of power within the Commonwealth of Australia Constitution Act to validly empower the Parliament of the Commonwealth to make laws with respect to Nationality and Citizenship.

 

If you disagree with this interpretation of your request, please let me know in writing as soon as possible.

 

The department received your request from the Department of Home Affairs on 7 March 2019.  The Department of Home Affairs received your confirmation of the original request on the 19 February 2019 and the 30 day statutory period for processing your request is currently 21 March 2018.

 

We would like to seek your consent to an extension under section 15AA of the FOI Act to enable the department to complete the processing of your request. If you agree to the requested extension of 18 days, please let me know in writing at your earliest convenience.

 

If you agree to the requested extension, the new due date will be 8 April 2019. However, the department will make every effort to provide a decision to you as soon as possible.

 

Where the documents within the scope of an FOI request include the personal information of junior officers of the department or other government agencies, the department’s practice is to not disclose that information (e.g. names, contact details).  The names and contact details of senior officers will generally be disclosed.

 

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 Joanna by telephone on (02) 6141 6666 or by email foi@ag.gov.au.

 

Yours sincerely

Joanna

 

Assistant Director

Freedom of Information and Parliamentary | Strategy and Governance Branch

Attorney-General’s Department

T: 02 6141 6666 | E: foi@ag.gov.au


Wed, Apr 3, 2019, 1:28 PM
to me, FOI

Dear Mr Dickson

 

Freedom of Information Request FOI19/074

 

I refer to your request under the Freedom of Information Act 1982 (FOI Act) for access to documents

the head of power within the Commonwealth of Australia Constitution Act to validly empower the Parliament of the Commonwealth to make laws with respect to Nationality and Citizenship.

 

I am writing to you to provide you with a decision in response to that request.

Please find attached a decision letter and the attachment outlining your review rights

 

If you have any questions, please contact Joanna by telephone on (02) 6141 6666 or by email foi@ag.gov.au.

 

Yours sincerely

Joanna

 

Assistant Director

Freedom of Information and Parliamentary | Strategy and Governance Branch

Attorney-General’s Department

T: 02 6141 6666 | E: foi@ag.gov.au


Decision Letter - FOI19-074

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