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

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 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