Constitutional Law v QLD State Law - Valid Head of Power to pass Bills into law.
Dear Queensland Department of Justice and Attorney-General, FOI Officer.
I make request under the Freedom of Information Act.
Sect 92 of the Commonwealth Constitution, as the Quick and Garran Annotated Constitution defines or explains in detail that Sect 92 provides for citizens and subjects ''the right to travel unburdened by State restrictions, regulations and obstructions.''
Background Information: The COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - CLAUSE 2 Act to extend to the Queen's successors The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.
CLAUSE 5 Operation of the Constitution and laws states: This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State;
SECT 58 Royal assent to Bills When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen's assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name.
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 106
Saving of Constitutions
The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.
The Information that I Request: I request the lawful valid document or instrument empowering the Governor to Assent according to section 58 of the Commonwealth of Australia Constitution Act 1900 (UK)'subject and pursuant to' covering clause 2, in the name of Queen Elizabeth II within the Sovereignty of the United Kingdom, to enact the Act of Parliament that relates to alleged emergency powers being used for the Covid 19 response.
I also request a copy of a validly created legal instrument or State Act of Parliament that can lawfully invalidate Sect 92 of the Commonwealth Constitution 1901 as proclaimed and gazetted, an Act of QLD Parliament that might lawfully invalidate the Rights of a subject or citizen to engage in intercourse among the States as per Sect 92 of the Commonwealth Constitution?
The Request in Summary:
I request the lawful valid document or instrument empowering the Governor to Assent to Bills according to section 58 of the Commonwealth of Australia Constitution Act 1900 'subject and pursuant to' covering clause 2, in the name of Queen Elizabeth II within the Sovereignty of the United Kingdom, to enact the Act that relates to the alleged emergency powers being used for the QLD Covid 19 response.
I request the valid head of power within the Commonwealth of Australia Constitution Act to empower the QLD Parliament to make laws on the subject matter of the Act that relates to the alleged emergency powers being used for the QLD Covid 19 response.
I request the valid head of power within the Commonwealth of Australia Constitution Act to empower the QLD Parliament so as to lawfully restrict or prohibit intercourse of subjects and citizens among the States of the Australian Commonwealth that might affect ''the right to travel unburdened by State restrictions, regulations and obstructions'' as guaranteed under Sect 92 of the Commonwealth Constitution.
I request the valid head of power within the Commonwealth of Australia Constitution Act to empower the QLD Parliament to make laws on the subject matter of vaccines.
I only seek documents constitutionally compliant with the Commonwealth of Australia Constitution Act 1900 specifically Clause 2, and not those as generally accepted.
Can you be so kind as to acknowledge receipt of this request.
Yours faithfully,
Brett Wilson
Thank you for your email which has been received by Right to Information
(RTI) and Privacy, Department of Justice and Attorney-General (DJAG).
Right to Information Act / Information Privacy Act Applications
If you are making an application to DJAG under either the Information
Privacy Act 2009 (IP Act) or the Right to Information Act 2009 (RTI Act) a
member of RTI and Privacy will respond in writing acknowledging receipt of
your application and advising how the application will proceed, and any
further actions that may be required by you.
Once your application is valid (meaning that all of the requirements for a
valid application under the legislation have been met) you will be
notified in writing and the statutory timeframe for processing a decision
(25 business days) will commence, however this may be extended. If this
occurs an officer from RTI and Privacy will contact you.
RTI and Privacy is able to assist you with information regarding the
procedural steps to lodge an application under the RTI Act or the IP Act
with DJAG for documents in its possession or control. However, the RTI
and IP process is not designed to answer questions. If you are seeking
answers to questions, and not documents, you might consider contacting the
business unit in DJAG responsible for the subject matter of your questions
directly.
Processing your application may take some time to be finalised due to the
impacts on resourcing as a result of the current Coronavirus. RTI and
Privacy will continue to update you on the status of your application as
it progresses.
Advice
RTI and Privacy does not provide legal advice.
Other government contacts
Should you wish to lodge an application with another Queensland government
agency please [1]contact their Right to Information and Privacy Unit, as
we are unable to comment on their processes or what records they may
potentially hold.
Should you require general advice regarding lodging applications or
further information about RTI or IP you may wish to contact the Queensland
Office of the Information Commissioner (OIC) by email at:
[2][email address], by telephone: (07) 3234 7373 or their
website: [3]https://www.oic.qld.gov.au.
If your application relates to the records of either a Commonwealth
Government agency or large company, neither of which are covered by
Queensland right to information and privacy legislation you may wish to
contact the Office of the Australian Information Commissioner(OAIC) by
email at: [4][email address], by telephone : 1300 363 992 or their
website: [5]https://www.oaic.gov.au.
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Kind regards,
Right to Information and Privacy
Department of Justice and Attorney-General
References
Visible links
1. https://www.rti.qld.gov.au/rti-ip-agency...
2. mailto:[email address]
3. https://www.oic.qld.gov.au/
4. mailto:[email address]
5. https://www.oaic.gov.au/
Good morning Mr Wilson
Thank you for your email received in Right to Information and Privacy,
Department of Justice and Attorney-General on Friday, 3 April 2020.
Your matter has been forwarded to our Principal Advisor for consideration
and direct reply.
Please do not hesitate to contact us in relation to this matter.
Kind Regards
[1]image003Belinda Zieth
Principal Executive Officer
Right to Information and Privacy
Department of Justice and Attorney-General
------------------------------------------------------------------------------------------------------
GPO Box 149, BRISBANE Qld 4000
P: 07 3738 9892 E: [2][email address]
DRAFT YOUR OWN PRIVACY STATEMENT by using [3]On-Q!
[4]cid:image003.jpg@01D55438.01E8BF70
Dear Mr Wilson
Thank you for your emails dated 3 and 8 April 2020. This is a response to
each of your emails.
Email dated 3 April 2020
It is noted from your email dated 3 April 2020 that you are seeking access
to:
“The lawful valid document or instrument empowering the Government to
Assent according to section 58 of the Commonwealth of Australia
Constitution Act 1990 (UK) ‘subject and pursuant to’ covering clause 2, in
the name of Queen Elizabeth II within the Sovereignty of the United
Kingdom, to enact the Act of Parliament that relates to alleged emergency
powers being used for the Covid 19 response.”
It is also noted that you are seeking access to:
“The valid head of power within the Commonwealth of Australia Constitution
Act to empower the QLD Parliament to make laws on the subject matter of
the Act that relates to the alleged emergency powers being used for the
QLD Covid 19 response.”
“The valid head of power within the Commonwealth of Australia Constitution
Act to empower the QLD Parliament so as to lawfully restrict or prohibit
intercourse of subjects and citizens among the States of the Australian
Commonwealth that might affect “the right to travel unburdened by State
restrictions, regulations and obstructions” as guaranteed under s92 of the
Commonwealth Constitution.”
and:
“The valid head of power within the Commonwealth of Australia Constitution
Act to empower the QLD Parliament to make laws on the subject matter of
vaccines.”
It is noted that you are limiting your request to documents
constitutionally compliant with the Commonwealth of Australia Constitution
Act 1900, specifically Clause 2.
Having considered the subject matter of your requests, it would appear
that these are not subject matters the responsive documents for which
would be reasonably expected to be held by the Department of Justice and
Attorney-General (DJAG).
The Right to Information Act 2009 (RTI Act) provides that applications may
only be made to an agency for documents of that agency. Section 12 of the
RTI Act provides:
Meaning of a document of an agency
In this act, document, of an agency, means a document, other than a
document to which this Act does not apply, in the possession, or under the
control, of the agency whether brought into existence or received in the
agency, and includes –
(a) A document to which the agency is entitled to access; and
(b) A document in the possession, or under the control, of an officer of
the agency in the officer’s official capacity.
As the information you are seeking is not and would not reasonably be
expected to be in the possession or control of DJAG, and are not documents
of DJAG, your application is not valid.
In order to make a valid application, the application must be directed to
the agency or agencies who would be most likely to hold the information
you are seeking.
In this case, having had regard to the subject matter of the documents you
are seeking, you may wish to apply to the following agencies, who are
likely to hold the information you are seeking:
o Queensland Health
o The Department of the Premier and Cabinet; and
o The Commonwealth Department of Prime Minister and Cabinet.
You may apply under the Queensland Right to Information Act 2009 to
Queensland Health online at [1]www.rti.qld.gov.au. You may also apply
under the RTI Act to the Department of the Premier and Cabinet online at
[2]www.rti.qld.gov.au. It is recommended that you contact these agencies
before lodging an application under the RTI Act as they may be able to
provide you with further assistance in relation to obtaining information
relative to your requests.
To apply for documents held by the Commonwealth Department of Prime
Minister and Cabinet, you will need to contact that agency directly in
writing to:
The FOI Coordinator
Department of the Prime Minister and Cabinet
PO Box 6500
CANBERRA ACT 2600
Requests can also be lodged by email: [3][email address].
Email dated 8 April 2020
It is noted from your email dated 8 April 2020 that you are seeking the
following:
“That you satisfy the presumption that the QLD Public Health Act 2005 Part
7 A particular powers for Covid 19 emergency is operating, can be applied
to a subject of the Queen, as per the Queen and the head of power listed
in Covering Clause 2 of the Commonwealth Constitution, restricting freedom
of movement of a subject.
It is requested that you provide evidence of a copy of an Act or
Instrument under the Public Health Act 2005, that satisfies the
presumption that binds a Subject of the Queen to the Public Health Act
2005, the Act.
It is requested the information be provided within 28 days of this request
having been made.”
As is the case with your email seeking information dated 3 April 2020, and
having regard to the subject matter of your application, the information
you are seeking would not reasonably be expected to be held by DJAG.
Accordingly, and as is the case with your email to Right to Information
and Privacy dated 3 April 2020, this request is not a valid request under
the RTI Act because you are not seeking documents of DJAG.
In order to make a valid RTI application for the information sought in
your email dated 8 April 2020, you must make your request to the agency
most likely to hold that information.
For the information sought in your email dated 8 April 2020, you will need
to apply directly to Queensland Health, the Department of the Premier
and Cabinet (Queensland) and the Commonwealth Department of Prime Minister
and Cabinet.
You may apply under the Queensland Right to Information Act 2009 to
Queensland Health online at [4]www.rti.qld.gov.au. You may also apply
under the RTI Act to the Queensland Department of the Premiers and
Cabinet online at [5]www.rti.qld.gov.au. It is recommended that you
contact these agencies before lodging an application under the RTI Act as
they may be able to provide you with further assistance in relation to
obtaining information relative to your requests.
To apply for documents held by the Commonwealth Department of Prime
Minister and Cabinet, you will need to contact that agency directly in
writing to:
The FOI Coordinator
Department of the Prime Minister and Cabinet
PO Box 6500
CANBERRA ACT 2600
Requests can also be lodged by email: [6][email address].
We trust this information will be of assistance to you.
Yours sincerely
Right to Information and Privacy
Department of Justice and Attorney-General.
Right to Information and Privacy
Department of Justice and Attorney-General
Dear RTI Administration,
Thank you for your FOI response.
In your response you suggested that I make a request to the Department of the Premier
and Cabinet (Queensland).
The right to Information Act 2008 Under Part 3 Sect 30 (3) states as follows: ''Also, for an agency other than a local government, the agency’s principal officer may, with the agreement of another agency’s principal officer, delegate the power to deal with the application to the other agency’s principal officer.''
Is there any reason you are choosing not to delegate and refer my request under Sect 30 to the other departments, where you suggest may be able to provide the subject matter?
On your web site it states that documents relating to Premier and Cabinet are frequently requested documents made through your office DJAG. See here:
Cabinet documents
Some decisions of Cabinet are released by Government but other decisions are not made available and may be exempt under the Right to Information Act 2009. Certain Cabinet decisions are published online. :https://www.justice.qld.gov.au/publicati...
As you are aware, I had requested a copy of the lawful valid document or instrument empowering the Government to Assent according to section 58 of the Commonwealth of Australia Constitution Act 1990 (UK) ‘subject and pursuant to’ covering clause 2, in
the name of Queen Elizabeth II within the Sovereignty of the United
Kingdom, to enact the Act of Parliament that relates to alleged emergency
powers being used for the Covid 19 response.”
I had reasonably assumed that you would have access and be in a position to provide the documents I requested relating to the Constitutional question, or refuse such documents if they do not exist? This assumption was based on the following information from your public web site where I suggest you have responsibility for the subject matter:
Crown Law
We are a self-funded unit of the department, providing legal services to the Queensland Government only, not to the public. Our lawyers advise and represent the government in all areas of law affecting the public sector and the State of Queensland on a fee-for-service basis, across a range of areas including:
constitutional law
https://www.justice.qld.gov.au/about-us/...
Is there any information held by your department that is routinely provided to the Parliament in response to legislative instruments, requests and orders from the Parliament?
If your department DJAG has no responsibility over the subject matter of legislative instruments passed into law by the QLD Parlaiment, then why not? Is there a centralised department that does have this responsibility if DJAG dont? This is a justice issue relating to Bills being passed into law in a just and lawful process of which must be Constitutionally compliant to be valid in law.
Does your Department have a duty to continually improve the law and justice framework for QLD residents and electors?
Does your office on occasion, seek views from the public on draft legislation and accompanying explanatory materials for such legislation being considered by the QLD parliament wanting to pass a Bill into law?
Yours sincerely,
Brett Wilson
Dear RTI Administration,
You have a lawful requirement to respond to this FOI Request and your response is overdue.
Any further delay may result in a dispute being submitted by me to the Office of the Information Commissioner.
Yours sincerely,
Brett Wilson
Good morning Mr Wilson
Thank you for your emails dated 22 April 2020, 17 May 2020 and 21 May 2020 in response to Mehtap Komuksu’s email to you dated 15 April 2020.
We note from the subject matter of your email that you are lodging an Internal Review of a decision. As we did not receive a valid Right to Information request from you, we are unable to accept an Internal Review request when no decision was taken in relation to either of your emails. A valid RTI application must, among other things, be made on the relevant form, available at https://www.rti.qld.gov.au/, and accompanied by an application fee.
As your email of 22 April raises issues which do not relate to RTI applications, we have referred these matters to another area of the Department for response. Please be advised that you should receive correspondence in the near future addressing the remainder of your queries.
In addition, we are also in receipt of an email from you dated Sunday, 17 May 2020, which was received in our office at 12.28pm, in relation to the transfer of your request to another agency. As you mentioned, section 38(2) of the RTI Act states –
38 Transfer of application
(2) An agency to which an application has been made (the original agency) may transfer the application to another agency if –
(a) the document to which the application relates is not in the original agency’s possession but is, to the original agency’s knowledge, in the other agency’s possession; and
(b) the other agency consents to the transfer.
It should be noted that only valid applications can be transferred from the original agency to another agency. As previously advised, your application is not valid as it is not made in the approved form and accompanied by the fee.
However, DJAG does not have possession or control of the documents you are seeking.
As previously advised, having had regard to the subject matter of the documents you are seeking, you may wish to apply to the following agencies, who are likely to hold the information:
•Queensland Health
•The Department of the Premier and Cabinet; and
•The Commonwealth Department of Prime Minister and Cabinet.
I refer you to section 24(2) of the RTI Act which states -
24 Making access application
(2) The application must –
(a) be in the approved form and be accompanied by the application fee; and
(b) give sufficient information concerning the document to enable a responsible officer of the agency or the Minister to identify the document; and
(c) state an address to which notices under this Act may be sent to the applicant; and
(d) state whether access to the document is sought for the benefit of, or use of the document by –
(i) the applicant; or
(ii) another entity; and
(e) if access to the document is sought for the benefit of, or use of the document by, an entity other than the applicant – the name of the other entity.
We also note that you made reference in your most recent email to seeking an external review by the Office of the Information Commissioner. We remain of the view that you have not lodged a valid RTI application with our agency and therefore there has not been a reviewable decision made, or deemed to be made in relation to your request. If you wish to contact the Office of the Information Commissioner the email address is [email address].
I trust this information assists you.
Right to Information and Privacy
Department of Justice and Attorney-General
Dear RTI Administration,
Your claim that ‘’We note from the subject matter of your email that you are lodging an Internal Review of a decision. As we did not receive a valid Right to Information request from you.’’ As you are aware, I had requested a copy of the lawful valid document or instrument empowering the Government to Assent according to section 58 of the Commonwealth of Australia Constitution Act 1990 (UK) ‘subject and pursuant to’ covering clause 2, in the name of Queen Elizabeth II within the Sovereignty of the United Kingdom, to enact the Act of Parliament that relates to alleged emergency powers being used for the Covid 19 response.”
Again, I had reasonably assumed that you would have access and be in a position to provide the documents I requested relating to the Constitutional question because the Construction of all QLD State Acts must be subject to the Commonwealth Constitution, and if you cannot locate the documents or might refuse such documents if they do not exist, or you might refer them to the relevant Department that can supply the information requested? Note, this request in not a request I need put to the Department of PM and Cabinet of which you suggested in your email reply.
The information I requested is relevant and valid request that the QLD Government and or AG Department can discover and locate, and I have a Right to Know if the QLD Parliament has exceeded its legislative powers regarding Covid 19 laws which is relevant to the following:
ACTS INTERPRETATION ACT 1901 – SECT 15A: Construction of Acts to be subject to Constitution
Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.
https://www.legislation.gov.au/Details/C...
My question to you is, why is this not a valid request other than not using a specific Form? You have a duty to be specific and provide a valid statement of reasons as to why you allege the request is not valid and not make a decision in bad faith. You have a duty to provide a statement of reasons, give reasons as implied in the legislation.
You also claim that ‘’A valid RTI application must, among other things, be made on the relevant form, available at https://www.rti.qld.gov.au/, and accompanied by an application fee.’’
I refer you to the ACTS INTERPRETATION ACT 1901 - SECT 25C Compliance with forms
Where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient.
You can use your discretionary powers and common sense to process my FOI Request and request in the interim, that I submit the relevant form to you, where only substantial compliance is required IAW the above Act, rather than dismiss my FOI request as being invalid because it was not accompanied by a form and a fee.
You also stated that ‘’As your email of 22 April raises issues which do not relate to RTI applications, we have referred these matters to another area of the Department for response.’’
This may be a good thing, but what specific issues? You have a responsibility to inform me as a matter of administrative procedural fairness, in particular as to what information in my FOI Request, did you refer to another department and which specific departments? Please provide a copy of this correspondence between your Office and those departments or provide the names of those departments. I am prepared to submit the required form, or fee if lawfully required so this information request is fairly and rightly processed.
You also stated the following: ‘’However, DJAG does not have possession or control of the documents you are seeking. As previously advised, having had regard to the subject matter of the documents you are seeking, you may wish to apply to the following agencies, who are likely to hold the information:
•Queensland Health
•The Department of the Premier and Cabinet
My next question to you is, why did you not follow this policy and transfer the request to either of the above Departments under Sect 38 Transfer of application after you request that I submit the alleged required form which would have been the fair and responsible thing to do in good faith, or hold my FOI Request until you receive the required form and fee if applicable to my circumstances?
In the email response from the Right to Information and Privacy Department of Justice and Attorney-General QLD dated April 15, 2020, there was no mention that I needed to submit a form and a fee to be provided with a public service that our taxes pay for. I was not initially aware of the State Right to Know Act and assumed the FOI Act being the superior and Federal Legislation applied to State Governments and FOI Requests.
My April 22 email to your office was sent in response to your April 15, 2020 email of which I expected that your office would promptly reply at least within 14 days. If I had not sent my follow up email, your Office would have remained silent which is totally unacceptable, as your office has a public duty, community standards expects that your Public Office respond to concerned subjects and citizens who make contact with your office in a timely manner.
I refer you to the following: Right to Information Act 2009 Chapter 1 Preliminary Current as at 18 November 2019 Page 15 Authorised by the Parliamentary Counsel
• the applicant is given an opportunity to change the application so it is an application that can be made under the Information Privacy Act or to pay the application fee payable under this Act and have the application dealt with under this Act; or
• the application may continue to be dealt with under the Information Privacy Act but is potentially subject to a decision under section 32(1)(b)(i), as applied by the Information Privacy Act, that the application is outside the Act’s scope.
2 If the applicant pays the application fee payable under this Act, the applicant is taken to have made the application under this Act on the date of the payment—see the Information Privacy Act, section 54(4).
3 To facilitate this situation, the approved form for an access application under this Act is the same as the approved form for an access application under the Information Privacy Act and agencies will make appropriate administrative arrangements.
Right to Information Act 2009 (8) In this section— valid access application means an access application that— (a) is in a form complying with all relevant application requirements; and (b) is not an application to which section 32 applies.
Part 2 Access application 24. Making access application (2) The application must— (a) be in the approved form and be accompanied by the application fee;
Schedule 5 Dictionary section 10. approved form means a form approved under section 192. 192
Approval of forms The chief executive may approve forms for use under this Act.
The word ‘’MAY’’ is not WILL or SHALL, the Act is not clear and indicates that the use of a Form is not a mandatory requirement set out in the Right to Information Act. The Act does not stipulate a particular Form Number or is there an attachment of a relevant From to the Act itself.
It is requested that you answer the relevant questions put to you in this email reply in a timely manner, and that you consider holding my FOI Request and processing it once I send you, and you receive the requested signed form and fee, which is a reasonable request for your office to consider, given you have procedurally disadvantaged me regarding time by not responding for some 30 days of which I had to prompt a response from your office.
Yours sincerely,
Brett Wilson
Good afternoon Mr Wilson,
I refer to your below email. I have attached a copy of the PDF version of the Right to Information and Information Privacy Access Application form. If you complete this application form and make payment of the application fee of $50.80 your application will become valid and the Department of Justice and Attorney-General (DJAG) will conduct searches in an attempt to locate any documents relevant to your application. The application fee can be paid by cheque or money order or by using the following link: https://www.smartservice.qld.gov.au/serv....
Delegation of powers under the RTI Act
You have queried why the RTI Unit has chosen not to delegate and refer your request to another department who may hold the relevant documents.
Under section 30 of the RTI Act, a principal officer may delegate their powers to the principal officer of another agency, provided the second principal officer consents. However, there is currently no such delegation in place between the principal officer of DJAG and the Department of the Premier and Cabinet or Queensland Health. It is generally more efficient for an application to an agency to be dealt with by an officer within that agency. This is because it is much easier for an officer to obtain, understand, query and deal with documents of the agency they belong to, rather than that responsibility being delegated to an officer of a different agency.
Transfer of request
DJAG does sometimes transfer applications to other agencies, but a valid application and the agreement of the other agency is required before that can happen. As indicated in earlier correspondence your request is not compliant with the requirements of the Right to Information Act 2009. Upon completion of the above (form and application fee) DJAG will enquire as to whether the other agencies will accept a transfer of your application, however, please note, the other agencies are not obliged to accept such a transfer.
Referral to other area
The following sections of your email have been referred to another area of DJAG, Strategic Policy, to respond to:
"Is there any information held by your department that is routinely provided to the Parliament in response to legislative instruments, requests and orders from the Parliament?
If your department DJAG has no responsibility over the subject matter of legislative instruments passed into law by the QLD Parliament, then why not? Is there a centralised department that does have this responsibility if DJAG don't? This is a justice issue relating to Bills being passed into law in a just and lawful process of which must be Constitutionally compliant to be valid in law.
Does your Department have a duty to continually improve the law and justice framework for QLD residents and electors?
Does your office on occasion, seek views from the public on draft legislation and accompanying explanatory materials for such legislation being considered by the QLD parliament wanting to pass a Bill into law?"
I hope the above information has been of assistance in clarifying this matter.
Michelle Duckworth
Director
Right to Information and Privacy
Department of Justice and Attorney-General
[1][FOI #6269 email]
Dear Mr Wilson,
Thank you for your emails to the Right to Information (RTI) Unit in the
Department of Justice and Attorney-General (DJAG) dated 12 February 2020,
19 March 2020, 3 April 2020, 8 April 2020, 22 April 2020 and 17 May 2020.
I understand that the DJAG RTI Unit has responded to your emails, or parts
of your emails, that relate to your queries about applications under the
Right to Information Act 2009 (the RTI Act).
This email is in response to the issues in your emails of 22 April and 17
May that do not relate to an RTI application.
You have sought a copy of: “the lawful valid document or instrument
empowering the Government to Assent according to section 58 of the
Commonwealth of Australia Constitution Act 1990 (UK) ‘subject and pursuant
to’ covering clause 2, in the name of Queen Elizabeth II within the
Sovereignty of the United Kingdom, to enact the Act of Parliament that
relates to alleged emergency powers being used for the Covid 19 response.”
You have also sought to clarify whether: “DJAG has no responsibility over
the subject matter of legislative instruments passed into law by the QLD
Parliament,” and whether there is a centralised department that does have
this responsibility if DJAG does not have responsibility. You have
commented that: “This is a justice issue relating to Bills being passed
into law in a just and lawful process of which must be Constitutionally
compliant to be valid in law.”
With respect to the authority for the Parliament of Queensland to make
this legislation – section 2 of the Constitution Act 1867 states that the
Parliament of Queensland is authorised to make laws for the peace, welfare
and good government of Queensland. This is a plenary or full power.
However, the power is subject to the limits and guarantees found in the
Commonwealth Constitution.
The responsibilities of Ministers and their portfolios are set out in
Administrative Arrangements Orders (AAOs). For each Minister, they detail
the principal responsibilities, the Acts they administer, and the
departments, agencies and office holders responsible for them.
The Attorney-General and Minister for Justice is responsible for the areas
listed on pages 10 to 17 of the AAO (No 1) 2020. The Deputy Premier,
Minister for Health and Minister for Ambulance Services (Minister for
Health) is responsible for matters listed on pages on pages 3 to 4 of the
AAO (No 1) 2020, including the Public Health Act 2005.
A link to the AAOs is here.
[2]https://www.qld.gov.au/about/how-governm...
As you would be aware, on 29 January 2020 the Minister for Health
declared a public health emergency under section 319 of the Public Health
Act 2005 (the Public Health Act) due to the outbreak of COVID-19 (COVID-19
emergency).
As a first response, the Public Health and Other Legislation (Public
Health Emergency) Amendment Bill 2020 was introduced and passed by the
Legislative Assembly on 18 March 2020.
The Public Health and Other Legislation (Public Health Emergency) Act 2020
amended the Public Health Act to strengthen powers of the chief health
officer and emergency officers appointed under the Public Health Act for
the COVID-19 emergency to implement social distancing measures, including
regulating mass gatherings, isolating or quarantining people suspected or
known to have been exposed to COVID-19 and protecting vulnerable
populations, such as the elderly.
On 22 April 2020, the COVID-19 Emergency Response Bill 2020 was introduced
and passed by the Legislative Assembly, being the second response to the
COVID-19 emergency. The COVID-19 Emergency Response Act 2020 (Emergency
Response Act) includes a modification framework which provides for the
making of secondary instruments under the following broad global heads of
power: reducing physical contact between persons; statutory timeframes;
proceedings of courts/tribunals; and authorisation to take actions or do
things electronically.
Then on 19 May 2020 the Justice and Other Legislation (COVID-19) Amendment
Bill 2020 was introduced and passed by the Legislative Assembly on 21 May
2020. Whilst the agile modification framework in the Emergency Response
Act provides the main vehicle for the Government’s legislative response to
the COVID-19 emergency, some necessary legislative amendments were not
able to be made under the limited global heads of power in the Emergency
Response Act or were simply unsuitable to be made by way of a secondary
instrument. The Justice and Other Legislation (COVID-19 Emergency
Response) Amendment Act 2020 (Emergency Response Amendment Act) addressed
those issues that could not be addressed under the Emergency Response
Act’s modification framework.
The Emergency Response Amendment Act amended some 20 different Acts to
address a number of issues in response to the COVID-19 emergency,
including to safeguard revenue streams for local governments; assist in
minimising the economic impacts of COVID-19 on the State; assist
Queensland businesses and individuals suffering financial and operational
stress caused by the public health emergency; and assist Queensland’s
health and disability sectors to operate safely and effectively.
Responses to your further questions are provided below:
Is there any information held by your department that is routinely
provided to the Parliament in response to legislative instruments,
requests and orders from the Parliament?
DJAG routinely provides the following information:
o Responses to Questions on Notice (DJAG will often prepare draft
responses for the Attorney-General to consider in response to
questions asked of the Attorney-General, by members of parliament,
which relate to the Attorney-General’s portfolio).
o Annual reports, and other reports – DJAG and statutory bodies/entities
within the portfolio of the Attorney-General and Minister for Justice
must submit reports to the Attorney-General. Some bodies are required
to submit an annual report, while others must report as and when
required by relevant legislation. Legislative requirements can set out
when a report is to be submitted by the agency to the Attorney-General
and if and when the Attorney-General is required to table the report
in parliament. As an example, under the Law Reform Commission Act
1968, the Attorney-General is required to table reports of the
Queensland Law Reform Commission within 14 sitting days of receiving
them.
Does your Department have a duty to continually improve the law and
justice framework for QLD residents and electors?
DJAG’s Strategic Plan sets out DJAG’s vision, objectives, purpose,
challenges, opportunities and strategies. DJAG’s vision is ‘Justice for
all through safe, fair and responsible communities.’ This vision is
supported by key objectives such as safe communities (which includes
developing and enforcing legislation to ensure rights and safety). A link
to DJAG’s Strategic Plan for 2018-2022 is here.
[3]https://www.justice.qld.gov.au/__data/as...
Does your office on occasion, seek views from the public on draft
legislation and accompanying explanatory materials for such legislation
being considered by the QLD parliament wanting to pass a Bill into law?
DJAG frequently seeks views from the public on draft legislation. For
examples of where public consultation has occurred, please see
[4]https://www.justice.qld.gov.au/community....
The explanatory materials accompanying legislation when it is introduced
in the Legislative Assembly details consultation that has been undertaken
and the results of that consultation.
We hope this information is of assistance to you.
Kind regards
Strategic Policy and Legal Services
Department of Justice and Attorney-General
References
Visible links
1. mailto:[FOI #6269 email]
2. https://www.qld.gov.au/about/how-governm...
3. https://www.justice.qld.gov.au/__data/as...
4. https://www.justice.qld.gov.au/community...
Dear Policy ADG,
Thank you for responding and clarifying some of the information requested. There seems to be some confusion in that me requesting a copy of: “the lawful valid document or instrument empowering the QLD Government to Assent according to section 58 of the Commonwealth of Australia Constitution subject and pursuant to’ Covering Clause 2 of the Commonwealth of Australia Constitution Act 1900 (UK), in the name of Queen Elizabeth II within the Sovereignty of the United Kingdom, to enact the Act of Parliament that relates to alleged emergency powers being used for the Covid 19 response', is a valid request for a document under the QLD RFI Act? I have a right to know as an elector and subject, that Acts passed into law by the QLD parliament are both valid and operative.
The Commonwealth of Australia Constitution Act 1990 (UK) provides that:
Commonwealth of Australia Constitution Act 1900 (UK).
Covering Clause 2.
The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.
Please note, there has been no Referendum conducted in QLD to my knowledge IAW Sect 128 of the Commonwealth Constitution, a Section and Act binding on all of the States, which is the lawful process that must be used for a YES or NO vote, to change or reject the valid and lawful head of power published at Covering Clause 2 of the Commonwealth of Australia Constitution Act 1900 (UK) which is binding on all of the State parliaments and the federal parliament.
In summary, I am requesting a copy of an instrument of the QLD Parliament or a copy of a relevant Act passed into law that verifies it has been assented to IAW Section 58 of the Commonwealth Constitution and IAW the head of power stipulated in Covering Clause 2 of the Commonwealth of Australia Constitution Act 1900 (UK)which is the lawful and valid Constitutional head of power for all of the State Parliaments and the Federal Parliament, to enact emergency powers being used for the QLD Covid 19 response.
By the doctrine of the Common Law, all executive power resides formally in the King, and all executive action proceeds from him, and in our case in the year 2020, from Her Majesty or heirs and successors ''in the sovereignty of the United Kingdom'' as per Covering Clause 2.
You stated in your response that On 22 April 2020, the COVID-19 Emergency Response Bill 2020 was introduced and passed by the Legislative Assembly.
It is an established principle of English law, that two Houses of Parliament are required to pass Bills into Law for that law to be valid and so that proposed Bills are lawfully and justly scruitinised before being passed into law under a system of representative and responsible government. This legal principle is clearly articulated in the Quick and Garran Annotated Constitution of the Australian Commonwealth. This established legal principle enforces the reasoning of Sect 58 of the Commonwealth Constitution which is a parliamentary process, constitutionally binding on the QLD parliament when proposing laws and the valid Royal assent to Bills like Covid 19 emergency powers.
So in this instance, what I expect is that your office provide a valid response that might either:
a. provide a copy of the said requested document regarding head of power; or
b. inform me that your office has decided to refuse the request under the relevant section of the QLD RFI Act, on the basis that all reasonable steps have been taken to find the document, and you are satisfied that the document does not exist; and
c. provide a copy of the Referendum where the people of QLD voted 'YES" to dissolve the QLD upper House of Parliament IAW the States obligations under Sect 128 of the Commonwealth Constitution of which Covering Clause 5 of the Constitution Act 1900 (UK) binds the QLD parliament.
Commonwealth of Australia Constitution Act 1900 (UK) provides:
Covering Clause 5
Operation of the Constitution and Laws.
This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.
Professor RD Lumb in 1983, in his book Australian Constitutionalism, observed (at p 4):
...a constitutional system is one where the wielders of state power or authority are subject to limitations (whether arising from written or unwritten constitution) so that in the exercise of their authority, i.e. their power to promulgate laws, they are subject to principles and rules which govern the manner in which that power is exercised. Lumb agreed that the essence of constitutionalism is 'limited government' whereby restraints, both procedural and substantive, are placed on the exercise of public power.
If the requested documents can not be located by your office, I would expect that you provide the Reasons IAW the relevant Section of the RFI Act that might provide 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.
I also expect a response on Departmental Letter Head in PDF document format, if that is not to much to ask in that either the documents have been found and supplied, or they not exist. I do not request the opinions of PolicyADG in relation to this request, I only request copies of the requested documents.
Yours sincerely,
Brett Wilson
Dear Mr Wilson,
Thank you for your email of 28 May 2020.
I understand you have now made an application for documents under the
Right to Information Act 2009 (RTI Act).
Your application will be dealt with by the RTI Unit in accordance with the
provisions of the RTI Act.
We hope this information is of assistance to you.
Kind regards
Strategic Policy and Legal Services
Department of Justice and Attorney-General
Dear PolicyADG,
You stated that you understand I have now made an application for documents under the
Right to Information Act 2009 (RTI Act).
I assume that means you have received my email application with accompanying form and concession information IAW the RTI Act, and are processing my request as we had previously discussed?
Please clarify that this email application will be dealt with by your office RTI Unit in accordance with the provisions of the RTI Act?
Yours sincerely,
Brett: wilson