OFFICIAL

PM&C Reference: FOI/2021/224

Dear Anonymous

Thank you for your email dated 9 September 2021, received by the
Department of the Prime Minister and Cabinet (PM&C), in which you made a
request under the Freedom of Information Act 1982 (the FOI Act) in the
following terms:

I would like to request any information on how and why the Australia Act
1986 is valid and legal because there are some fundamental issues. Some of
these issues include:

* The Australia Act 1986 has no head of power. The Head of Power under
'The Commonwealth of Australia Constitution Act 1900' is the Crown of the
United Kingdom and Ireland.

* The Australia Act 1986 was enacted by the "Parliament of Australia"
which is not recognised as a legislator under section 1 of 'The
Commonwealth of Australia Constitution Act 1900'.

* The Australia Act 1986 was an attempt to equalise powers exclusive to
the Federal Government to that of the States by allowing the States to put
aside any obligations to the inherited laws of England and obligations to
the Federal Government, this attempt was put to the people in question 2
of the 1984 Federal Referendum and failed.

Therefore, I would like to know why the Australia Act 1986 has been
introduced and is still in place today. If there are no arguments that
prove the fundamental issues above are wrong, then I strongly suggest you
repeal the Australia Act 1986.

Subject-matter of your request

The Attorney-General’s Department has responsibility for constitutional
law. Therefore, the subject-matter of your request is more closely
connected with the functions of the Attorney-General’s Department than
PM&C.

Validity of your request

The FOI Act provides a right of access to documents rather than
information. The FOI Guidelines issued by the Office of the Australian
Information Commissioner relevantly state at paragraph 2.33 that the right
of access under the FOI Act is to existing documents, rather than to
information. The FOI Act does not require an agency or minister to create
a new document in response to a request for access.

In addition to the above, we have sought advice from the
Attorney-General’s Department who have advised that should the request be
rephrased as a request for documents, your request would still be invalid
as the requested documents would fall into the open access period of the
Archives Act 1983 (the Archives Act). Section 12(1)(a) of the FOI Act
provides that a person is not entitled to obtain access to a document
which is within the open access period under the Archives Act. The open
access period currently applies to documents coming into existence prior
to 1 January 2001.  

Accordingly, we suggest that you the may wish to contact the National
Archives of Australia to access documents about the preparation and
introduction of the Australia Act 1986. We also note the Museum of
Australian Democracy provides some [1]information on the basis of the
Australia Act.

For more information on how to access records under the Archives Act,
please visit:
[2]https://www.naa.gov.au/help-your-researc...

PM&C will take no further action in regards to processing this request.

Yours sincerely

FOI Adviser | FOI Section[]

Department of the Prime Minister and Cabinet

p. (02) 6271 5849

Ngunnawal Country, One National Circuit  Barton  ACT  2600  |  PO Box
6500  CANBERRA  ACT  2600
e. [3][email address]  w. [4]pmc.gov.au

[5]cid:image001.jpg@01D78E24.FF2DAFB0[6]cid:image002.jpg@01D78E24.FF2DAFB0

[7]cid:image003.jpg@01D78E24.FF2DAFB0 The
Department
acknowledges
and pays
respect to
the past,
present and
emerging
Elders and
Traditional
Custodians
of Country,
and the
continuation
of cultural,
spiritual
and
educational
practices of
Aboriginal
and Torres
Strait
Islander
peoples.

______________________________________________________________________

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References

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