FOI-2023-336 – Decision (pdf)
SEH FOI to the Department of the Prime Minister
I request the following documents:
1. I request the documents that provide for the Assent to the Parliament of United Kingdom, Canada, New Zealand, South Africa and Sri Lanka to the Royal Styles and Titles Act 1973 for the Commonwealth of Australia for the alteration in the law touching the Queens title consistent with the Statute of Westminster 1931 an Act adopted by the Parliament of United Kingdom, Canada, New Zealand, South Africa and Sri Lanka, consistent with the Royal Styles and Titles Act 1953.
2. I request the document that demonstrates the enumerated head of power under the Commonwealth of Australia Constitution Act 1901 and the Commonwealth of Australia Constitution for the Parliament to create a new title for the Queen or King that overcomes Clause 2 and 5.
3. I request the document that demonstrates the identity and true title of the King that Prime Minister Anthony Norman Albanese swore allegiance too following the Coronation of King Charles the Third on 06 March 2023.
4. I request the document that demonstrates that Prime Minister Anthony Albanese swore true allegiance to King Charles the Third.
5. I request the document that demonstrates under what Office of the Crown the current Australian Parliament/Government/Judiciary is lawfully constituted.
6. I request the document that demonstrates the Governor-General’s portfolio can be absorbed by the Prime Minister and Cabinet Office, in accordance with Letters Patent for the Office of Governor General 1900, Commonwealth of Australia Constitution Act 1901 and Commonwealth of Australia Constitution.
My findings of fact and reasons for deciding to refuse your request for access are set out below.
1. Documents cannot be found or do not exist
Section 24A(1) of the FOI Act provides 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.
In determining what the FOI Act means with respect to ‘all reasonable steps’, I have had regard to the Guidelines which discuss the meaning of ‘reasonable’ in section 24A(1)(a). It is not designed to go beyond the limit assigned by reason, not to be extravagant or excessive, rather to be moderate and of such an effort to be appropriate or suitable to the circumstances.
The Department has undertaken inquiries with the Legal Policy area regarding any relevant records that would meet the terms of your request. They advised, based on their knowledge of the subject matter connected of the requested documents that there were no documents found to be in the possession of the Department.
In addition, based on my knowledge of the subject matter connected to your FOI request, and in my role as A/g Assistant Secretary, Legal Policy Branch, I am satisfied that the Department does not hold the documents you have requested.
I am satisfied that the measures taken by the Department to locate documents in response to your request under the FOI Act, as outline above, are appropriate and suitable given the circumstances.
After taking all reasonable steps to find the documents, no documents relevant to your request have been identified.
Accordingly, I am refusing your request for access under section 24A(1) of the FOI Act as the documents you have requested do not exist.
The Department has undertaken further inquiries and sought advice from another government agency in order to provide you with the below additional information that may satisfy your request.
Additional Information
The Royal Style and Titles Act 1973 (Cth) determined Queen Elizabeth II’s title for use in relation to Australia and its territories, as Queen of Australia. There is no legal requirement to obtain the consent of other Commonwealth countries for any change to the royal style and titles in Australia.
The preamble to the Commonwealth of Australia Constitution Act 1900 (Imp) refers to the historical fact of the agreement to federate under the ‘Crown of the United Kingdom of Great Britain and Ireland’. Covering clause 2 of that Act states that references to ‘the Queen’ extend to ‘Her Majesty’s heirs and successors in the sovereignty of the United Kingdom’. The required oath and affirmation set out in the schedule to the Constitution, which members of the Commonwealth Parliament must make
under section 42 of the Constitution, refer to ‘Her Majesty Queen Victoria, Her heirs and successors according to law.’ The schedule states ‘The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time’. Following the death of Queen Elizabeth II in September 2022, references in the Constitution to Queen Victoria now include King Charles III.
The swearing of an oath or making of an affirmation as a member of parliament in accordance with section 42 of the Constitution is distinct from the process of appointment as a minister under section 64 of the Constitution. The Prime Minister of the day determines the form of the oath and affirmation for ministers. There is no legal requirement for that oath or affirmation to include a reference to the Crown. There is also no requirement for Members of Parliament to swear allegiance to new sovereigns during a parliamentary term.
Under section 2 of the Constitution, the Sovereign is empowered to appoint the Governor-General as their representative in the Commonwealth. Under section 61, the ‘executive’ power of the Commonwealth is vested in the Sovereign and is exercisable by the Governor-General. The Office of the Official Secretary of the Governor-General is a non-corporate Commonwealth entity within the portfolio of, but separate to, the Department of the Prime Minister and Cabinet under the Public Governance, Performance and Accountability Act 2013. The Office provides support to the Governor-General to fulfil their duties.
From the Constitution:
64 Ministers of State.
The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth. After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives.
42 Oath or affirmation of allegiance.
Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.
Schedule
Oath
I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. So help me God ! Affirmation. I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. (Note.—The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time.)