Hocking v Director-General of the National Archives of Australia

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

JENNIFER HOCKING  APPELLANT

AND

DIRECTOR-GENERAL OF THE NATIONAL

ARCHIVES OF AUSTRALIA  RESPONDENT

Hocking v Director-General of the National Archives of Australia

[2020] HCA 19

Date of Hearing: 4 & 5 February 2020

Date of Judgment: 29 May 2020

S262/2019

ORDER

1.Appeal allowed.

2.Set aside the orders of the Full Court of the Federal Court of Australia made on 8 February 2019 and, in their place, order that:

(a)the appeal to the Full Court be allowed;

(b)the orders of Griffiths J made on 16 March 2018 be set aside and, in their place, it be:

(i)declared that the contents of Record AA1984/609 ("the deposited correspondence") constitute Commonwealth records within the meaning of the Archives Act 1983 (Cth);

(ii)ordered that a writ of mandamus issue to compel the Director-General of the National Archives of Australia to reconsider Professor Hocking's request for access to the deposited correspondence; and

(iii)ordered that the Director-General of the National Archives of Australia pay Professor Hocking's costs at first instance; and

(c)the Director-General of the National Archives of Australia pay Professor Hocking's costs of the appeal to the Full Court.

3.The Director-General of the National Archives of Australia pay Professor Hocking's costs of this appeal.

On appeal from the Federal Court of Australia

Representation

B W Walker SC with T J Brennan for the appellant (instructed by Corrs Chambers Westgarth)

S P Donaghue QC, Solicitor-General of the Commonwealth, with C L Lenehan SC, D M Forrester and J A G McComish for the respondent and the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Hocking v Director-General of the National Archives of Australia

Administrative law (Cth) – Judicial review – Archives – Access to records – Where Governor‑General engaged in correspondence with Her Majesty the Queen – Where correspondence described as personal and confidential – Where Official Secretary to Governor‑General kept correspondence and made arrangement to deposit correspondence with predecessor organisation to National Archives of Australia ("Archives") – Where correspondence deposited by Official Secretary on instructions of former Governor-General after his retirement – Where Archives Act 1983 (Cth) subsequently enacted – Where s 31 of Archives Act provides that Commonwealth records within care of Archives must be made available for public access when within "open access period" – Where s 3(1) defines "Commonwealth record" as including "record that is the property of the Commonwealth or of a Commonwealth institution" – Where "Commonwealth institution" defined as including "the official establishment of the Governor‑General" – Whether correspondence property of Commonwealth or of official establishment of Governor‑General – Whether "property" within context of Archives Act connoted relationship involving holding of rights corresponding to ownership or possession at common law or connoted existence of legally endorsed concentration of power to control custody of record.

Words and phrases – "administration", "archival resources of the Commonwealth", "Archives", "body politic", "care and management", "Commonwealth institution", "Commonwealth record", "comprehensive expression", "convention", "correspondence", "created or received officially and kept institutionally", "Crown in right of the Commonwealth", "custody", "functional unit of government", "Governor-General", "kept by reason of", "lawful power of control", "legally endorsed concentration of power", "management", "official establishment of the Governor‑General", "Official Secretary", "ownership", "personal and confidential", "personal records", "possession", "private and confidential", "property", "property of the Commonwealth or of a Commonwealth institution", "public access", "record", "right to exclude others", "the Commonwealth".

Constitution, covering cll 3, 4, s 2, Ch II.

Archives Act 1983 (Cth), ss 2A, 3, 3C, 5, 6, 62, 64, 70, Pt V.

Governor-General Act 1974 (Cth), s 6.

KIEFEL CJ, BELL, GAGELER AND KEANE JJ.  

Introduction

1. The Right Honourable Sir John Kerr held the constitutional office of Governor‑General of the Commonwealth of Australia from 11 July 1974 until 8 December 1977. Throughout that tumultuous period in Australian constitutional and political history, Sir John engaged in "personal and confidential" correspondence with Her Majesty the Queen.

2. Following Sir John Kerr's retirement from the office of Governor‑General, a sealed package containing contemporaneous copies of correspondence sent by him to Her Majesty and originals of correspondence received by him from Her Majesty was deposited with the Australian Archives. The Australian Archives was an organisation within the Department of Home Affairs which operated under administrative arrangements first laid down during World War II. The package was deposited by the Official Secretary to the Governor‑General ("the Official Secretary") under cover of a letter expressing Her Majesty's "wishes" and Sir John's "instructions" that its contents should remain "closed" for 60 years from his date of retirement, so as not to be available for public access until after 8 December 2037. Much later, another letter from the Official Secretary, sent not long after Sir John's death on 24 March 1991, announced that Her Majesty had "reduced" the closed period to 50 years, so as to allow release to the public after 8 December 2027.

3. With the enactment of the Archives Act 1983 (Cth), to which it will be necessary to turn in some detail, the deposited correspondence became "records" forming part of the "archival resources of the Commonwealth" within the "care and management" of the National Archives of Australia ("the Archives"), the powers of which are exercisable by the Director‑General of the Archives ("the Director‑General"). The "archival resources of the Commonwealth" consist of "Commonwealth records" and "other material" that are "of national significance or public interest" and that "relate to", amongst other things, "the history or government of Australia".

4. By force of the Archives Act, subject to exceptions the potential application of which are not in issue, a "Commonwealth record" within the care of the Archives must be made available for public access once the record is within the "open access period". The open access period for a Commonwealth record that came into existence before 1980 is on and after 1 January in the year that is 31 years after the year of its creation. There is no requirement for public access to archival resources of the Commonwealth that are not Commonwealth records.

5. Professor Jennifer Hocking is an academic historian and writer with a particular interest in the period of Australian constitutional and political history in which Sir John Kerr held the office of Governor‑General. On 31 March 2016, she requested access to the file within the custody of the Archives which contains the deposited correspondence. On 10 May 2016, the Director‑General rejected her request for access on the basis that the contents of the file were not Commonwealth records. That characterisation of the deposited correspondence was upheld on judicial review by the Federal Court, at first instance (Griffiths J)[1] and on appeal by a majority of the Full Court (Allsop CJ and Robertson J, Flick J dissenting)[2].

   [1]Hocking v Director-General of National Archives of Australia (2018) 255 FCR 1.

   [2]Hocking v Director-General of the National Archives of Australia (2019) 264 FCR 1.

6. We would allow Professor Hocking's appeal from the judgment of the Full Court, declare the deposited correspondence to be Commonwealth records within the meaning of the Archives Act and order that a writ of mandamus issue to compel the Director‑General to reconsider Professor Hocking's request for access.

7. Contrary to the arguments of the parties, the outcome of the appeal does not turn on who might have been the true owner of the correspondence at common law or on expectations held at the time of its deposit with the Australian Archives by reference to constitutional convention or otherwise. The appeal turns rather on the construction and application of the elaborate statutory definition of "Commonwealth record". In particular, it turns on the application to the deposited correspondence of that part of the definition which on its proper construction operates to include records the physical custody of which is within the lawful power of control of specified functional units of government, one of which is the "official establishment of the Governor-General". The determinative consideration is that the correspondence met that part of the definition at the time of its deposit irrespective of its ownership.

8. Explaining why that is so commences best with a description of the deposited correspondence and an explanation of the circumstances of its creation, keeping and deposit followed by an examination of the scheme and legislative history of the Archives Act. Issues of construction are then best resolved before turning to note the detail of the arguments of the parties concerning the ownership of the records and moving finally to an elucidation of the determinative consideration.

   The deposited correspondence

9. The parties chose not to put the deposited correspondence in evidence before the Federal Court. The consequence of that forensic choice is that all that can be known for the purposes of the appeal about the contents of the deposited correspondence and about the circumstances of its creation, and of its keeping and deposit, is what appears from facts formally agreed between the parties as supplemented by such inferences as are open to be drawn from other documentary material which the parties did choose to put in evidence.

10. The agreed facts record that the deposited correspondence comprises contemporaneously made copies of letters and telegrams sent by the Governor‑General to the Queen together with originals of letters and telegrams received by the Governor‑General from the Queen. All of the letters and telegrams were exchanged by the Queen through her Private Secretary ("the Private Secretary"). Most, but not all, of the letters were exchanged by the Governor‑General through the Official Secretary. Most, but not all, of the letters "address topics relating to the official duties and responsibilities of the Governor‑General". Some of the letters "take the form of reports to The Queen about the events of the day in Australia", and some of the letters which take that form "include attachments comprising photocopies of newspaper clippings or other items of correspondence, expanding upon and corroborating the information communicated by the Governor‑General in relation to contemporary political happenings in Australia".

11. The agreed facts also record that the correspondence was deposited with the Australian Archives by Mr David Smith "in his capacity as Official Secretary to the Governor General" under cover of a letter of deposit dated 26 August 1978. Mr Smith had been appointed to the office of Official Secretary in 1973, when Sir Paul Hasluck still held the office of Governor‑General, and went on to hold the office of Official Secretary until 1990, a period which spanned the whole of the periods in which each of Sir John Kerr, Sir Zelman Cowen and Sir Ninian Stephen held the office of Governor‑General. At the time of Mr Smith's appointment in 1973, the Official Secretary was an office in the Australian Public Service established under the Public Service Act 1922 (Cth) within the Prime Minister's Department. Since 24 December 1984, the office of Official Secretary has been a statutory office established under the Governor‑General Act 1974 (Cth)[3].

    [3]Section 6(1) of the Governor-General Act 1974 (Cth), inserted in its original form by the Public Service Reform Act 1984 (Cth).

12. The letter of deposit which Mr Smith wrote to the Australian Archives in his capacity as Official Secretary was in the following terms:

    "This package contains the personal and confidential correspondence between the Right Honourable Sir John Kerr, AK, GCMG, GCVO, K St J, QC, Governor‑General of the Commonwealth of Australia from 11 April 1974 until 8 December 1977, and Her Majesty The Queen.

    In accordance with The Queen's wishes and Sir John Kerr's instructions, these papers are to remain closed until 60 years after the end of his appointment as Governor-General, ie until after 8 December 2037.

    Thereafter the documents are subject to a further caveat that their release after 60 years should be only after consultation with the Sovereign's Private Secretary of the day and with the Governor-General's Official Secretary of the day."

13. Unchallenged in the appeal is a finding by the primary judge that "[a]lthough Sir John had ceased to be Governor‑General when the records were placed by Mr Smith with Australian Archives, it is plain that he was doing so as Sir John's agent and not as the agent of the incumbent Governor‑General"[4]. Against the background of the agreed fact that Mr Smith deposited the documents in his capacity as Official Secretary, the finding can only be understood as a finding that, in depositing the correspondence, Mr Smith acted not on the instructions of Sir Zelman Cowen but on the instructions of Sir John, whose affairs as Governor‑General Mr Smith was in the process of winding up.

    [4]Hocking v Director-General of National Archives of Australia (2018) 255 FCR 1 at 30-31 [114].

14. More about the contents of the correspondence and about the circumstances of its creation can be gleaned from Sir John Kerr's published autobiography[5] and from his unpublished journals, extracts from both of which are in evidence. The extracts reveal that Sir John engaged in the correspondence in the performance of what he understood to be a "duty" of the office of Governor‑General to "keep Her Majesty informed" and that he did so "with the conscious and deliberate thought that the reports would be preserved" in the Australian Archives as a "record" of his "Governor‑Generalship". From a personal letter Sir John later wrote to Mr Smith, it appears to have been the practice of Sir John as Governor‑General and of Mr Smith as Official Secretary that Mr Smith checked Sir John's correspondence before dispatch, from time to time making suggestions as to its content, and commented on "the replies from the Palace". 

    [5]Matters for Judgment: An Autobiography (1978).

15. More about the circumstances of the keeping and deposit of the correspondence emerges from other documents which were put in evidence. The most salient of those other documents are conveniently noted in broadly chronological sequence.

16. First in chronological sequence are letters exchanged in late 1976 between Sir John Kerr and the then Private Secretary, Sir Martin Charteris. The letters are both marked "PERSONAL AND CONFIDENTIAL". Initiating the exchange, Sir John wrote to Sir Martin in the following terms:

    "This short letter is of a different kind from our usual correspondence.

    I recently had occasion to remake my will. This resulted in my realising that something should be done about my papers. These include, amongst other things, documents relevant to my Governor‑Generalship, especially the crisis. They include a lot of diary notes, records of conversations and draft chapters of possible future books. Also included, of course, is my copy of the correspondence between us.

    I would want to appoint literary editors to look after all my other papers, and as you would expect, I am under some pressure from libraries to leave my papers in their custody to be opened at some future time fixed by me. The Australian National Library is, of course, the strongest candidate.

    I can make the appropriate decisions about papers which are exclusively mine, but our correspondence falls into a different category. We talked to some extent about this in London and you made the obvious point that this correspondence will have to be under embargo for a very long time.

    One thing that worries me is, that if I were to die ... someone has to have the custody and control of our letters. Do you have any suggestions about this? I would not wish to leave this correspondence in Government House. Each Governor‑General takes with him such material. Having regard to the probable historical importance of what we have written, it has to be, I think, preserved at this end as well as in the Palace. I assume that your records there are carefully preserved.

    The alternatives appear to be to allow it to go into the custody of my literary editors, unopened and fully embargoed with instructions for it to be deposited in a bank or some other safe place, or to let it go to, say, the National Library completely embargoed for whatever period of time you suggest.

    I think I should get this matter settled so that there is no doubt what is to be done with this correspondence in the event of my death."

17. Sir Martin Charteris' letter in reply included the following:

    "I have given considerable thought as to what would be the most suitable repository for your papers dealing with the Governor‑Generalship and particularly the correspondence which has passed between us and I have no doubt in my own mind that the best solution, from The Queen's point of view, would be for them to be deposited in the National Library. This end of the correspondence will, of course, be preserved in the Royal Archives under complete confidentiality.

    If you agree to this solution it remains to be decided for what period of time your papers are placed under complete embargo. The figure we usually specify nowadays is 60 years from the end of the appointment concerned. In 1968, when the National Library of Australia tracked down the papers of the first Lord Stonehaven (Governor‑General of Australia 1925‑30), his son and successor offered to hand them over to that Library subject to The Queen's wishes. On Her Majesty's instructions we stipulated, and the National Library accepted, that they should remain closed until 60 years after the end of the appointment.

    It seems therefore very suitable that your papers should be dealt with in the same way."

18. The exchange reveals that, although Sir John Kerr understood the correspondence to have been within his power of disposition, he did not understand his choice as to the disposition of the correspondence to be unfettered. He understood its historical significance to be such that it needed to be preserved in the national interest. And he understood Her Majesty's interest in its confidentiality to be such that he needed to consult with the Private Secretary as to the course he should take.  

19. Next in chronological sequence is a letter sent in October 1977 from Mr Malcolm Fraser, as Prime Minister, to Sir John Kerr, as Governor‑General. The letter refers to proposed legislation then in the form of a draft of what would become the Archives Bill and continues:

    "The provisions of the draft Bill, clause 18, relating to compulsory transfer, custody and access provisions do not apply to the records of a Governor‑General or his Office. It seems to me that a proper distinction should be made between Government House records and the records of executive government and this is reflected in the Bill as drafted.

    Government House records nevertheless are part of the history of Australia and it is proper that they should receive all the care and protection possible. For that purpose clause 21 provides that Australian Archives may enter into arrangements with a Governor‑General to take custody of records under access rules which a Governor‑General may lay down. Royal Household records, including The Queen's correspondence with Governors‑General, are protected in Britain under special archives rules. I am sure you will agree that there should be no lesser protection in Australia.

    You are probably aware that Lord Casey, and now Lady Casey, and Sir Paul Hasluck have made arrangements in respect of the custody of papers relating to their terms as Governor‑General. I hope that it will be possible, when the legislation is passed, for your Office to move promptly to enter into arrangements with the Australian Archives for the protection of records arising from your own period in office. In due course I shall be bringing this matter under the notice of the incoming Governor‑General."

20. As will appear from the legislative history of the Archives Act to be traced later in these reasons, provisions of the nature described in the Prime Minister's letter were in fact incorporated in the Archives Bill in the form in which it was introduced into the Senate in June 1978, but came to be omitted from the Archives Bill in the form in which it was ultimately reintroduced into the Senate in June 1983 to result in the eventual enactment of the Archives Act. The terms of the letter indicate that the Prime Minister was aware of the existence of correspondence between the Governor‑General and the Queen and considered that correspondence to form a special category of records within the general description in his letter of "Government House records". In the penultimate sentence, the Prime Minister was careful to express hope, rather than to give advice, that all Government House records relating to Sir John Kerr's term in the office of Governor‑General would soon become the subject of an arrangement between the Governor‑General's "Office" and the Australian Archives that would ensure their preservation.

21. Following in chronological sequence soon after the Prime Minister's letter to the Governor‑General is a letter sent in November 1977 from the then Director‑General of the Australian Archives, Professor R G Neale, to Mr Smith in his capacity as Official Secretary. The letter documents an arrangement the entering into of which can be inferred to have been prompted by the Prime Minister's expression of hope to the Governor‑General. Professor Neale confirmed in the letter that, in a conversation between him and Mr Smith on "the question of the transfer of Sir John's papers", "it was agreed that both the originals and the copies of the papers would be transferred to the custody of the Australian Archives". Professor Neale would wait for Mr Smith to tell him when Mr Smith wished the Australian Archives to take custody of the papers. On "[t]he question of access", Professor Neale added, "[g]iven the nature of the sensitive papers, these would normally be administered by the official policy governing such papers whether in the custody of the Australian Archives or of the Royal Archives at Windsor".

22. Next in chronological sequence are letters sent from Mr Smith to Sir John Kerr after his departure from Government House during the period between his retirement from the office of Governor‑General on 8 December 1977 and the deposit of the correspondence with the Archives on 26 August 1978. The letters are handwritten on "Government House" letterhead. They reveal that Mr Smith, acting alone and outside working hours, laboriously made photocopies of the correspondence and then sent those photocopies to Sir John. Mr Smith referred to the correspondence as then on a "file" and described that file as being kept "in my strong‑room under absolute security until the task is completed and the original file is in Archives". When the photocopying was completed, Mr Smith wrote to Sir John announcing that "[t]he task is done" and that "[t]he files will now be sealed and lodged with the Director‑General of Archives, with instructions that they are to remain closed until after 8 December 2037, ie 60 years after you left office".

23. As to the fate of the photocopies, the agreed facts reveal that a member of the Kerr family arranged for them to be collected by the Archives not long after the death of Sir John's widow on 16 December 1997. Whether or not the photocopies are Commonwealth records is not in issue in the appeal.

24. Also in evidence are documents which indicate that correspondence between Her Majesty and each of Sir Paul Hasluck, Sir Zelman Cowen and Sir Ninian Stephen has come into the care and management of the Archives. The contents of those documents also provide some evidence of the circumstances in which that occurred.

25. In relation to Sir Paul Hasluck, documents comprising his "private notebooks and personal files", itemised to include "copies of despatches written by the Governor‑General for the information of Her Majesty the Queen and the acknowledgements made of them by the Private Secretary to the Queen", were deposited with the Australian Archives on 16 December 1974. The deposit was apparently made by Sir Paul himself. Much later, on 29 May 1989, Sir Paul executed an "Instrument of Deposit" in which he stipulated that, except for those which would be exempt under the provisions of the Archives Act if they were Commonwealth records, the deposited documents "will be made available for access by the public when a period of 30 years has elapsed since the end of the calendar year in which they were created".

26. In relation to Sir Zelman Cowen and Sir Ninian Stephen, the "personal and confidential" correspondence between each of them and Her Majesty was deposited with the Archives by Mr Smith in his capacity as Official Secretary under cover of letters of deposit dated 14 June 1984 and 31 August 1990 respectively. The letters are materially identical to the letter of deposit dated 26 August 1978 under cover of which Mr Smith had deposited with the Australian Archives the "personal and confidential" correspondence between Sir John Kerr and Her Majesty. They express the "wishes" of Her Majesty and the respective "instructions" of Sir Zelman and Sir Ninian that the correspondence should remain closed for 60 years from the dates of their retirements, so as not to be released to the public until after 29 July 2042 in the case of Sir Zelman and until after 16 February 2049 in the case of Sir Ninian.

27. Next in chronological sequence of the documents in evidence are letters exchanged in mid‑1991 between Mr Douglas Sturkey, who had by then succeeded Mr Smith as Official Secretary, and Mr George Nichols, who was then Director‑General. Each wrote in his official capacity.

28. The full text of the letter from the Official Secretary, dated 23 July 1991, is as follows:

    "Under cover of letters dated 31 August 1990, 14 June 1984 and 26 August 1978, my predecessor forwarded sealed packages containing the personal and confidential correspondence of Sir Ninian Stephen, Sir Zelman Cowen and Sir John Kerr respectively with The Queen.

    In those letters the requirement that the papers remain closed for 60 years after the end of the appointment of each Governor‑General was stated. The Queen has now reduced this period to 50 years, subject to the approval in each case of the Sovereign's Private Secretary and the Official Secretary to the Governor‑General.

    I have taken this up with Sir Zelman Cowen and Sir Ninian Stephen, both of whom have signified their concurrence in the new arrangements.

    Accordingly, the dates of release of the three packages should now be:

    Sir John Kerr              after 8 December 2027

    Sir Zelman Cowen       after 29 July 2032

    Sir Ninian Stephen      after 16 February 2039

    I should be grateful if you could acknowledge receipt of this letter and agree to observe the new requirements."

29. The relevant text of the Director-General's response the next month is as follows:

    "I refer to your letters of 23 July 1991 concerning the new arrangements decided by The Queen regarding the release of personal and confidential correspondence to her from Australian Governors-General, and Mr Hayden's enquiry whether we hold copies of such correspondence from previous incumbents which might now be released under the new arrangements.

    Concerning the sealed packages, held by Australian Archives, of correspondence of Sir John Kerr, Sir Zelman Cowen and Sir Ninian Stephen respectively with The Queen, I have noted the date after which the contents of each package may be released, subject to the approval in each case of the Sovereign's Private Secretary and the Official Secretary to the Governor-General. I will ensure that these requirements are observed.

    The Australian Archives holds no records of previous Governors-General which might now be released under the 50-year rule. However, we do hold copies of Sir Paul Hasluck's personal and confidential despatches to The Queen or her Private Secretary while he was Governor‑General. We also hold some correspondence of Lord Casey with The Queen or her Private Secretary, including some confidential correspondence.

    On his retirement as Governor-General, Sir Paul deposited with the Archives a locked, sealed case containing three categories of records. One of these categories consists of the copies of despatches referred to above. The arrangement agreed between Sir Paul and my predecessor is that the case will be opened in 1999, 30 years after Sir Paul became Governor-General, so that some of the records in the other two categories can be made available for public access on 1 January 2000, in accordance with the 30‑year rule. The case is to be opened by the Director-General of the Archives of the day alone with the Official Secretary to the Governor‑General as sole witness, so that the copies of despatches referred to above, if exposed, can then and there be resealed and repackaged unread, and the new package endorsed with the action taken and the necessary directions for the future.

    These directions were to be that these papers should remain closed for a period of 60 years after Sir Paul ceased to be Governor-General (that is, until after 11 July 2034), and that thereafter access should only be after consultation with the Sovereign's Private Secretary of the day. It would now be appropriate for the directions to state that the papers should remain closed until after 11 July 2024, and that thereafter access should only be with the approval of the Sovereign's Private Secretary and the Official Secretary to the Governor-General. I assume you will wish to contact Sir Paul to seek his concurrence in the new arrangements, and I would appreciate your further advice in due course.

    ...

    The National Library's Guide to Collections of Manuscripts relating to Australia indicates that the National Library holds papers of Sir Paul Hasluck and Lord Casey, six earlier Governors-General, and one Administrator of the Commonwealth, including Baron Tennyson's secret despatches, Viscount Novar's official despatches to the King and letters to and from the King's Private Secretaries, Viscount Stonehaven's correspondence with the King and the King's Private Secretaries and some papers of Sir Isaac Isaacs. Only some of the Stonehaven papers appear to be affected by the new 50-year rule."

30. Two aspects of the Director-General's response to the Official Secretary are noteworthy. The first is that the Director-General was unequivocal in adopting the position that the Official Secretary's conveyance of the "decision" of Her Majesty was effective to create a "new 50-year rule". The operation of that new 50-year rule was accepted to be effective to reduce the closed periods stipulated by the earlier letters of deposit in which the former Official Secretary had conveyed the wishes of Her Majesty and instructions of Sir John Kerr, Sir Zelman Cowen and Sir Ninian Stephen respectively. It was also accepted to be effective to increase the closed period stipulated by Sir Paul Hasluck in his Instrument of Deposit.

31. The second and more specific of the noteworthy aspects of the Director-General's response is that the then Official Secretary's conveyance of Her Majesty's decision was accepted by him to be effective to reduce the closed period stipulated in the letter dated 26 August 1978 on the instructions of Sir John Kerr even though it was apparent from the terms of the letter dated 23 July 1991 that Sir John Kerr had not been consulted about the reduction and had not consented to the reduction. Indeed, Sir John had died several months earlier. Quite properly, the position adopted by the then Director‑General has been maintained by the current Director‑General as respondent to the appeal.

32. There remains finally to note an exchange of letters in February 2017 between the Official Secretary, who was then Mr Mark Fraser, and the Private Secretary, who was then Sir Christopher Geidt. The exchange occurred after Professor Hocking had commenced the proceeding for judicial review in the Federal Court and in contemplation of that proceeding. The Official Secretary initiated the exchange by writing to the Private Secretary attaching copies of an earlier letter from the Official Secretary, then Mr Stephen Brady, to the Private Secretary dated 7 April 2011 and of the Private Secretary's letter in reply dated 27 May 2011. In the context of discussing implications of the Freedom of Information Act 1982 (Cth), those earlier letters had recorded a firm mutual understanding that "correspondence between the Office and the Palace" occurred "in confidence". In the second of them, the Private Secretary had stated "we would assert that such correspondence is covered by a convention of confidentiality due to the constitutional position of the Sovereign and the Monarchy".

33. The Official Secretary's letter to the Private Secretary in February 2017 includes the following:

    "It is the understanding of the Office of the Official Secretary to the Governor-General that it is a matter of long-standing convention that non-official correspondence between the Monarch and Her Governors-General across the 15 Realms outside the United Kingdom are private and confidential communications, not forming part of any official government records. We note that underpinning this convention is the fundamental British constitutional principle that communications between The Queen and Her Ministers and other public bodies should remain confidential, and that the political neutrality of The Queen and the Royal Family, and the Royal Household acting on their behalf, should be maintained. By extension, we understand communications with the vice-regal representatives of The Queen also fall within the terms of this principle. It is understood that this long-standing convention exists in order for The Sovereign and Her representatives in the Commonwealth Realms to communicate in confidence and thereby permits and facilitates such communications. The confidential nature of such correspondence, including correspondence between the Palace and the Office, has been confirmed in our exchange of letters dated 7 April 2011 and 27 May 2011 respectively ... It appears to be very much a matter of mutual understanding that communications between The Queen and the Governor-General, and the offices of the Private Secretary and the Official Secretary respectively, are made on a confidential basis."

    The letter goes on to refer to an understanding on the part of the Official Secretary that "The Queen's correspondence with Governors-General" received protection in the United Kingdom under "special archives rules" drawing a distinction between the "Royal Archives" and the "National Archives".

34. The material part of the Private Secretary's letter in response to the Official Secretary in February 2017 is as follows:

    "The Royal Household agrees with the assessment outlined in your predecessor's letter of 7th April 2011 that correspondence between the Sovereign and her Governors-General and their respective offices are made in confidence. These are essentially private communications which are inherently sensitive. It has therefore been my understanding, and that of my predecessors, that the records in question are not caught by the Archives Act 1983, but are instead retained on the advice of the Royal Household for a minimum period of 50 years to reflect the uniqueness of the length of a reign. For the avoidance of doubt, I can confirm that the embargo period of 50 years applies in each of Her Majesty's 15 Commonwealth Realms, and the same convention of confidentiality is attached to communications between The Queen and her Ministers in the UK.

    As my letter of 27th May 2011 makes clear, it is my strong view that a convention of confidentiality is necessary to protect the privacy and dignity of the Sovereign and her Governors-General, and to preserve the constitutional position of the Monarch and the Monarchy. This is clearly reflected in the special archives arrangements that are in place in the UK for the retention of these records. You are correct in noting the distinction between the Royal Archives at Windsor, which is a private archive not subject to FOI or the Public Records Act 1958, and The National Archives at Kew, which is the national archive for the United Kingdom and a public authority subject to information access legislation.

    I hope that the above serves to clarify my agreement with the position outlined in your letter. Given the significance of the principles under examination, I am content for this letter to form part of the official submissions to the Court."

    The Archives Act

35. The Archives Act commenced on 6 June 1984. It has since been amended numerous times. Its object, as now expressed in its text, is "to provide for a National Archives of Australia", the functions of which are stated to include "identifying the archival resources of the Commonwealth" and "preserving and making publicly available the archival resources of the Commonwealth"[6].

    [6]Section 2A of the Archives Act.

36. To that end, the Archives Act mandates existence of the Archives as an "organization", being "a group of persons centrally controlled and acting in concert to perform particular functions"[7], within the Department of the Minister administering the Archives Act[8]. Under current administrative arrangements, it is in the Attorney-General's Department[9]. The Archives is therefore not "a legal entity independent of the executive government"[10]. Like the Department in which it is located, it lacks a distinct legal personality.

    [7]Church of Scientology v Woodward (1982) 154 CLR 25 at 69.

    [8]Section 5(1) of the Archives Act.

    [9]Administrative Arrangements Order, 5 December 2019, Schedule Pt 2.

    [10]Church of Scientology v Woodward (1982) 154 CLR 25 at 57.

37. The Archives Act mandates too the appointment or engagement under the Public Service Act 1999 (Cth) of the Director‑General[11]. Upon the Director-General it confers a number of specific powers and imposes a number of specific duties and in the Director‑General it reposes general authority to exercise any of the powers and perform any of the duties which it confers or imposes on the Archives[12].

    [11]Section 7(1) of the Archives Act.

    [12]Section 7(2) of the Archives Act.

38. For the purposes of the Archives Act, the "archival resources of the Commonwealth" consist of such "Commonwealth records and other material" as fulfil two conditions. One is that they are of "national significance or public interest". The other is that they "relate to", amongst other things, "the history or government of Australia" or "a person who is, or has at any time been, associated with a Commonwealth institution"[13]. One of the specific powers conferred on the Director‑General is, in writing, to "determine that a specified Commonwealth record or other material is part of the archival resources of the Commonwealth"[14].

    [13]Section 3(2) of the Archives Act.

    [14]Section 3C(1) of the Archives Act.

39. The term "material" means "records and other objects"[15]. The term "record" means "a document, or an object, in any form (including any electronic form) that is, or has been, kept by reason of" either "information or matter that it contains or that can be obtained from it" or "its connection with any event, person, circumstance or thing"[16]. The term "document" means "any record of information" and includes "anything on which there is writing"[17].

    [15]Section 3(1) of the Archives Act, definition of "material".

    [16]Section 3(1) of the Archives Act, definition of "record".

    [17]Section 2B of the Acts Interpretation Act 1901 (Cth), definition of "document".

40. The critical expression "Commonwealth record" is in relevant part defined to mean "a record that is the property of the Commonwealth or of a Commonwealth institution"[18] other than a record of that description which is "exempt material" because it is included in a collection maintained by another custodial institution, such as the National Library of Australia[19]. The cognate expression "current Commonwealth record" is defined to mean "a Commonwealth record that is required to be readily available for the purposes of a Commonwealth institution"[20].

    [18]Section 3(1) of the Archives Act, definition of "Commonwealth record", para (a).

    [19]Section 3(1) of the Archives Act, definition of "exempt material".

    [20]Section 3(1) of the Archives Act, definition of "current Commonwealth record".

41. To understand the definition of "Commonwealth record", it is necessary to refer to the definition of "Commonwealth institution", which is as follows[21]:

    [21]Section 3(1) of the Archives Act, definition of "Commonwealth institution".

    "Commonwealth institution means:

    (a)       the official establishment of the Governor-General;

    (b)       the Executive Council;

    (c)       the Senate;

    (d)       the House of Representatives;

    (e)       a Department;

    (f)a Federal court or a court of a Territory other than the Northern Territory or Norfolk Island;

    (g)       an authority of the Commonwealth; or

    (h)the Administration of an external Territory other than Norfolk Island."

42. To understand the scope of the definition of "Commonwealth institution", it is in turn necessary to refer to the definitions of "Department" and "authority of the Commonwealth". A "Department" is either a "Department of the Australian Public Service" established under the Public Service Act 1999 "that corresponds to a Department of State of the Commonwealth", administered by a Minister of State appointed by the Governor-General under s 64 of the Constitution, or a "Parliamentary Department"[22], being a Department of the Parliament established under the Parliamentary Service Act 1999 (Cth)[23]. The expression "authority of the Commonwealth" is elaborately defined as follows[24]:

    [22]Section 3(1) of the Archives Act, definition of "Department".

    [23]Section 3(1) of the Archives Act, definition of "Parliamentary Department".

    [24]Section 3(1) of the Archives Act, definition of "authority of the Commonwealth".

    "authority of the Commonwealth means:

    (a)an authority, body, tribunal or organization, whether incorporated or unincorporated, established for a public purpose:

    (i)by, or in accordance with the provisions of, an Act, regulations made under an Act or a law of a Territory other than the Northern Territory or Norfolk Island;

    (ii)       by the Governor-General; or

    (iii)      by, or with the approval of, a Minister;

    (b)the holder of a prescribed office under the Commonwealth; or

    (c)a Commonwealth-controlled company or a Commonwealth-controlled association;

    but does not include:

    (d)       a court;

    (e)       the Australian Capital Territory;

    (f)a body established by or under an enactment within the meaning of the Australian Capital Territory (Self-Government) Act 1988;

    (g)       the Northern Territory; or

    (h)       the Administration of an external Territory."

43. Last in the sequence of interlocking definitions which bear on the scope of the definition of "Commonwealth institution" are definitions of the expressions "Commonwealth-controlled company" and "Commonwealth-controlled association". A "Commonwealth‑controlled company" is "an incorporated company over which the Commonwealth is in a position to exercise control" other than "a company that is declared by the regulations not to be a Commonwealth-controlled company"[25]. A "Commonwealth‑controlled association" is "an association over which the Commonwealth is in a position to exercise control" other than "an association that is declared by the regulations not to be a Commonwealth-controlled association"[26].

    [25]Section 3(1) of the Archives Act, definition of "Commonwealth‑controlled company".

    [26]Section 3(1) of the Archives Act, definition of "Commonwealth‑controlled association".

44. Bearing also on the primary meaning of "a record that is the property of the Commonwealth or of a Commonwealth institution" in the definition of "Commonwealth record" is the circumstance that two categories of records are "deemed to be" Commonwealth records[27]. One comprises records of a "Royal Commission" (defined to mean "a Commissioner or Commissioners appointed by the Governor-General in the name of the Queen to make inquiry and report upon any matter"[28]), but only from the time when those records are no longer required for the purposes of the Royal Commission[29]. The other comprises "records of which the Commonwealth or a Commonwealth institution has, or is entitled to have, possession" in "cases or circumstances" specified by regulation[30]. In addition, a record "held by or on behalf of the Parliament or a House of the Parliament" is "taken to be the property of the Commonwealth"[31].

    [27]Section 3(1) of the Archives Act, definition of "Commonwealth record", para (b).

    [28]Section 3(1) of the Archives Act, definition of "Royal Commission".

    [29]Section 22(2) of the Archives Act.

    [30]Section 3(6) of the Archives Act.

    [31]Section 3(5) of the Archives Act.

45. Part II of the Archives Act specifies the functions and powers of the Archives. The functions of the Archives include to "ensure the conservation and preservation of the existing and future archival resources of the Commonwealth"[32], to "have the care and management of Commonwealth records, other than current Commonwealth records, that ... are part of the archival resources of the Commonwealth"[33], and to "make Commonwealth records available for public access" in accordance with Pt V of the Archives Act[34]. By s 5(2)(f), the functions of the Archives also include "to seek to obtain, and to have the care and management of, material (including Commonwealth records) not in the custody of a Commonwealth institution, that forms part of the archival resources of the Commonwealth and, in the opinion of the Director‑General, ought to be in the care of the Archives". A record is in the "care" of the Archives if it is in the "custody" of the Archives or in the "custody" of a person under an arrangement with the Archives[35]. The word "custody" in that context plainly refers to physical custody, meaning simply "physical control" even as a bailee[36].

    [32]Section 5(2)(a) of the Archives Act.

    [33]Section 5(2)(e)(i) of the Archives Act.

    [34]Section 5(2)(j) of the Archives Act.

    [35]Section 3(1) of the Archives Act, definition of "care", and s 64 of the Archives Act.

    [36]cf Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499 at 521, 546. See also at 533, 541.

46. Insofar as an arrangement made in the performance of the function conferred by s 5(2)(f) covers access to records accepted by the Archives under the arrangement, the arrangement attracts the operation of s 6(2), which is in turn qualified by s 6(3). The former provides:

    "Where, in the performance of its functions, the Archives enters into arrangements to accept the care of records from a person other than a Commonwealth institution, those arrangements may provide for the extent (if any) to which the Archives or other persons are to have access to those records and any such arrangements have effect notwithstanding anything contained in Division 3 of Part V."

    The latter provides:

    "Where an arrangement entered into by the Archives to accept the care of records from a person other than a Commonwealth institution relates to a Commonwealth record, then, to the extent that that arrangement, in so far as it relates to such a record, is inconsistent with a provision of Part V, that provision shall prevail."

47. The powers of the Archives enable it to do all things necessary or convenient to be done in connection with the performance of its functions[37]. Specifically included within those powers are to "establish and control repositories or other facilities to house or exhibit" records in its care[38] and to "make arrangements for the acquisition by the Commonwealth of, or of copyright in relation to, or arrangements relating to the custody of, material that forms part of the archival resources of the Commonwealth"[39].

    [37]Section 6(1) of the Archives Act.

    [38]Section 6(1)(a) of the Archives Act read with s 3(1) of the Archives Act, definition of "material of the Archives".

    [39]Section 6(1)(c) of the Archives Act.

48. Part V of the Archives Act governs the management and preservation of Commonwealth records. Within Pt V, Div 2 is concerned with dealings with Commonwealth records and Div 3 is concerned with access to Commonwealth records.

49. Division 2 of Pt V contains a general prohibition against "the destruction or other disposal of a Commonwealth record", "the transfer of the custody or ownership of a Commonwealth record" and "damage to or alteration of a Commonwealth record"[40] except as "required by any law", "with the permission of the Archives or in accordance with a practice or procedure approved by the Archives", "in accordance with a normal administrative practice" not disapproved by the Archives, or "for the purpose of placing Commonwealth records that are not in the custody of the Commonwealth or of a Commonwealth institution in the custody of the Commonwealth or of a Commonwealth institution that is entitled to custody of the records"[41]. It imposes a duty on "[t]he person responsible for the custody" of a Commonwealth record that is "in the custody of a Commonwealth institution other than the Archives" to "cause the record to be transferred to the care of the Archives in accordance with arrangements approved by the Archives" if the record is determined by the Director-General to be part of the archival resources of the Commonwealth[42].

    [40]Section 24(1) of the Archives Act.

    [41]Section 24(2) of the Archives Act.

    [42]Section 27 of the Archives Act.

50. Division 3 of Pt V centrally imposes a duty on the Archives to cause a Commonwealth record, other than an "exempt record", that is in the "care" of the Archives or in the "custody" of a Commonwealth institution to be made available for public access once the record is within the "open access period"[43], and confers a corresponding entitlement on "any person" to access such Commonwealth record[44]. Division 5 of Pt V also confers power on the Minister, in accordance with arrangements approved by the Prime Minister, to cause all records in a particular class of Commonwealth records not in the open access period to be available for public access[45]. The open access period for a Commonwealth record that came into existence before 1980, as has already been noted, begins on 1 January 31 years after the year of creation of the record[46].

    [43]Section 31 of the Archives Act.

    [44]Section 36(1) of the Archives Act.

    [45]Section 56 of the Archives Act.

    [46]Item 1 of the table set out in s 3(7) of the Archives Act.

51. Where, in the ordinary course of the administration of the Archives Act, access is given to a Commonwealth record that is required to be made available for public access because it is in the open access period or that is authorised by the Minister to be made available for public access, "no action for defamation, breach of confidence or infringement of copyright lies, by reason of the authorizing or giving of the access, against the Commonwealth or any person concerned in the authorizing or giving of the access"[47].

    [47]Section 57(1)(a) and (1A) of the Archives Act.

52. Having the potential to bear on an arrangement entered into by the Australian Archives before the commencement of the Archives Act is a transitional provision, s 70(3), which provides:

    "Where, immediately before the commencement of Part II, any records were in the custody of the establishment known as the Australian Archives, as existing at that time, under arrangements by which the custody of the records was accepted from a person other than a Commonwealth institution by the Commonwealth, or by an authority or person acting on behalf of the Commonwealth, those arrangements (including any provision of those arrangements concerning access to or disposal of those records) have effect from that commencement as if they were made, after that commencement, by that person with the Archives, and subsection 6(2) applies accordingly."

53. The relevant effect of s 70(3) is that an arrangement by which the Australian Archives before 6 June 1984 accepted custody of records from a person other than a Commonwealth institution must be given effect under the Archives Act as if the arrangement had been made by the Archives in the performance of the function conferred by s 5(2)(f). As spelt out in s 70(3), such a prior arrangement in that way attracts the operation of s 6(2). If it attracts the operation of s 6(2), the prior arrangement also necessarily attracts the operation of s 6(3).

    Legislative history

54. The parliamentary process which culminated in the enactment of the Archives Act was unusually long. The process overlapped with, and at various stages influenced, the sequence of events resulting in the deposit of the correspondence already recounted.

55. The parliamentary process commenced with the introduction of the Archives Bill into the Senate in June 1978. There it became the subject of parallel inquiries by the Senate Standing Committee on Constitutional and Legal Affairs[48] and the Senate Standing Committee on Education and the Arts[49], both of which reported in October 1979. However, it lapsed upon the prorogation of the Parliament which preceded the general election of October 1980.

    [48]Senate Standing Committee on Constitutional and Legal Affairs, Freedom of Information (1979).

    [49]Senate Standing Committee on Education and the Arts, Report on the Archives Bill 1978 (1979).

56. The Government's response to the reports of the two Senate Committees was incorporated into the Archives Bill as reintroduced into the Senate in 1981 before itself lapsing upon the dissolution of the Parliament which preceded the general election of March 1983.

57. Following the change of Government which occurred at that general election, a further revised version of the Archives Bill was introduced into the Senate in June 1983. The passage of that version, with amendments, resulted in enactment of the Archives Act in November 1983.

58. The three iterations of the Archives Bill involved no change to its basic structure. The central concept of the "archival resources of the Commonwealth" as consisting of "Commonwealth records and other material" and the critical definition of a "Commonwealth record" as "a record that is the property of the Commonwealth or of a Commonwealth institution" remained unchanged throughout the parliamentary process. So too did the material terms of the provisions which came to be enacted as ss 5(2)(f), 6(2) and 70(3).

59. The provenance of the definition of "Commonwealth record" as "a record that is the property of the Commonwealth or of a Commonwealth institution" was examined by the Australian Law Reform Commission in the context of undertaking a review of the Archives Act which it commenced in 1996 and concluded in 1998[50]. The Commission then reported that successive drafts of the Archives Bill in 1975 and 1976 had moved from "a provenance definition through a custodial definition ('a record that is held in official custody on behalf of the government')" to "the present property definition". The Commission noted "[a]necdotal evidence from those involved in drafting the legislation" which indicated that the property definition was preferred for a number of reasons. One was that "ownership was a term which was generally understood and which defined clearly a body of material to which the legislation would apply". Another was that "as owner of the records the Commonwealth already exercised many of the rights (for example, in relation to custody, disposal and public access) proposed to be included in the legislation"[51].

    [50]Australian Law Reform Commission, Australia's Federal Record: A review of Archives Act 1983, Report No 85 (1998).

    [51]Australian Law Reform Commission, Australia's Federal Record: A review of Archives Act 1983, Report No 85 (1998) at 99 [8.13].

60. Written and oral submissions to the Senate Standing Committee on Education and the Arts by Professor Neale, in his capacity as Director-General of the Australian Archives, shed light on a link between the preference of those involved in the early stages of the drafting of the Archives Bill for a "property definition" of "Commonwealth record" and the preference of those involved in those early stages of drafting for the inclusion of the provisions which came to be enacted as ss 5(2)(f), 6(2) and 70(3).

61. Professor Neale explained that the Archives Bill contained "no clause whatsoever giving the Archives or the Government the right to recover Commonwealth records" and that the drafting intent was that "[t]he Commonwealth's power to recover Commonwealth‑owned records" was to remain as it always had been under the general law[52]. Neither the proposed definition of "Commonwealth record" nor the proposal to make provision for categories of records to be deemed to be Commonwealth records was intended to create a new legal right to recovery[53]. Deeming was intended simply to ensure the coverage of records in categories where there might be doubt about the application of the definition[54].

    [52]Australia, Senate, Standing Committee on Education and the Arts (Reference: Archives Bill) 1978-79, Official Hansard Transcript of Evidence (1979) at 20.

    [53]See eg Australia, Senate, Standing Committee on Education and the Arts (Reference: Archives Bill) 1978-79, Official Hansard Transcript of Evidence (1979) at 21, 169-171, 386-387.

    [54]Australia, Senate, Standing Committee on Education and the Arts (Reference: Archives Bill) 1978-79, Official Hansard Transcript of Evidence (1979) at 169.

62. Professor Neale also explained that in practice "[t]here are many papers of an undeniably official character which might not satisfy the property test which is used to identify Commonwealth records" and that "given modern copying technology, there may often be real doubt as to where ownership of a particular record resides"[55]. He explained that it was not the policy of the Government "to attempt to recover Commonwealth records ... in the custody of persons or institutions other than Commonwealth institutions" and referred to the historical fact that no legal recovery action had ever been attempted[56].

    [55]Australia, Senate, Standing Committee on Education and the Arts (Reference: Archives Bill) 1978-79, Official Hansard Transcript of Evidence (1979) at 19.

    [56]Australia, Senate, Standing Committee on Education and the Arts (Reference: Archives Bill) 1978-79, Official Hansard Transcript of Evidence (1979) at 21.

63. Against that background, the practical difficulty which had confronted the Australian Archives in the past and which would continue to confront the Archives in the future arose from the fact that there was a "grey area between personal and official". The problem was that "some" former "Ministers and officials" regarded as "personal papers" what "others" would call "official papers" and what "others" would call "Commonwealth records in terms of the Bill". Professor Neale was able to "say categorically that in many collections of personal papers there exist official government files"[57].

    [57]Australia, Senate, Standing Committee on Education and the Arts (Reference: Archives Bill) 1978-79, Official Hansard Transcript of Evidence (1979) at 42-43.

64. Professor Neale explained that the purpose of the proposed s 5(2)(f) was to enable the Archives to "collect certain material without regard for ownership" so as "to avoid the need to establish ownership before taking custody of official material in private hands and to avoid the undesirable splitting of groups of papers where official and private material is inextricably mixed"[58]. He explained that, in combination with the proposed s 6(2), the proposed s 5(2)(f) would provide the Archives with statutory authority to continue the longstanding practice of the Australian Archives of approaching "Ministers and officials" at or around the time of their retirements to offer them the ability to deposit the whole of their collections of papers without "having to decide which papers are Commonwealth‑owned". He recounted that "[t]his approach has been made for many years and has been accepted by many former officials, Ministers, Prime Ministers and Governors-General"[59]. He explained that the intention was to ensure "that the Archives can continue to do as it always has done, namely to offer donors the right to state conditions of access on the whole of their deposits"[60].

    [58]Australia, Senate, Standing Committee on Education and the Arts (Reference: Archives Bill) 1978-79, Official Hansard Transcript of Evidence (1979) at 21.

    [59]Australia, Senate, Standing Committee on Education and the Arts (Reference: Archives Bill) 1978-79, Official Hansard Transcript of Evidence (1979) at 368.

    [60]Australia, Senate, Standing Committee on Education and the Arts (Reference: Archives Bill) 1978-79, Official Hansard Transcript of Evidence (1979) at 368.

65. To be emphasised is that Professor Neale's explanation was in the context of the Archives Bill as first introduced in 1978. In that original form, the Archives Bill contained no clause corresponding to s 6(3) of the Archives Act. Moreover, as foreshadowed to the Governor-General by the Prime Minister in his letter of October 1977, the Archives Bill in that form contained in cll 18 and 21 provisions which would have operated to exclude "records of the Governor‑General or of a former Governor-General" from the application of Divs 2 and 3 of Pt V and to allow a "person having the control of the custody" of such records to enter into an arrangement for the Archives to "have or retain the custody of those records" including by providing for the extent, if any, to which the Archives or any other persons were to have access to them. None of that was altered when the Archives Bill was reintroduced in 1981.

66. The Archives Bill as reintroduced in 1983, however, took quite a different approach. Whilst retaining substantively unaltered the text which became ss 5(2)(f), 6(2) and 70(3) of the Archives Act, it incorporated two significant departures from the earlier versions. One was the deletion of the proposed exclusion by cll 18 and 21 of records of the Governor-General or of a former Governor-General from the application of Divs 2 and 3 of Pt V. The other was the insertion of the reference to "the official establishment of the Governor-General" into the definition of "Commonwealth institution". In his second reading speech in the Senate, the Attorney-General explained the relevantly altered policy intent to be that "[t]he provisions of the legislation will apply to the records of the official establishment of the Governor-General, but not to his private or personal records"[61].

    [61]Australia, Senate, Parliamentary Debates (Hansard), 2 June 1983 at 1184.

67. Another significant departure from the text of the earlier versions of the Archives Bill was then made by amendment moved on behalf of the Government during the committee stage in the Senate. The amendment involved the insertion of the provision which came to be enacted as s 6(3). The policy intent, as explained in a Revised Explanatory Memorandum, was "to ensure that normal government controls over Commonwealth records ... will apply to any Commonwealth records which might appear in collections of personal papers deposited with the Archives" but "not in any way [to] affect the freedom of a donor to determine conditions of access to personal papers"[62].

    [62]Australia, Senate, Archives Bill 1983, Revised Explanatory Memorandum at [1]-[2].

68. The net result of those departures in 1983 from the Archives Bill as first introduced in 1978 and as reintroduced in 1981 was that, although the machinery provisions of ss 5(2)(f), 6(2) and 70(3) were retained in the Archives Act as enacted, donors of records were no longer to have what Professor Neale had described as "the right to state conditions of access on the whole of their deposits". Instead, s 6(3) would ensure that Div 3 of Pt V would govern access to any Commonwealth records deposited under any new arrangement with the Archives in the exercise of the function conferred on it by s 5(2)(f) and would govern as well access to any Commonwealth records already deposited under any pre-existing arrangement with the Australian Archives to be given ongoing effect by s 70(3). That was to be so irrespective of the terms of the arrangement. At the same time, the insertion of the reference to "the official establishment of the Governor-General" into the definition of "Commonwealth institution" would both expand the category of "Commonwealth records" and narrow the category of arrangements to be given ongoing effect by s 70(3) as arrangements by which the custody of records "was accepted from a person other than a Commonwealth institution".

69. As will be seen, those changes to the scheme of the Archives Act as enacted in November 1983 from the scheme of the Archives Bill as first introduced in June 1978 are significant both to the characterisation for the purpose of s 70(3) of the arrangement that had been entered into between Professor Neale in his capacity as Director-General of the Australian Archives and Mr Smith in his capacity as Official Secretary in or about November 1977 and to the characterisation for the purpose of Div 3 of Pt V of the correspondence which Mr Smith in his capacity as Official Secretary had deposited with the Australian Archives pursuant to that arrangement on 26 August 1978. The statutory changes were almost certainly unforeseen by either party to the arrangement.

    Four issues of construction

70. To address the ultimate question of whether each item of the deposited correspondence is properly characterised as "a record that is the property of the Commonwealth or of a Commonwealth institution" within the meaning of the Archives Act, it is necessary to determine the proper construction of the four principal statutory terms which combine to give that composite expression its relevant content. The four statutory terms are "record", "the Commonwealth" as distinct from "a Commonwealth institution", "the official establishment of the Governor-General" as a Commonwealth institution, and perhaps most importantly, "property".

    "record"

71. Two features of the statutory definition of "record" are significant. The first is that a record is an "object" – a tangible thing – which has an existence that is independent of any informational content it may have and that is separate from any copyright in the form of any informational content it may have. In the case of a record that is a document, including a record that is a paper copy of a letter sent or the original of a letter received, the record is the document as a physical thing: the paper on which words are written or copied.

72. The second is that a thing does not become a "record" in virtue of being created or received but in virtue of being "kept by reason of" its informational content or its connection with an event, person or circumstance. To keep a thing for such a reason is to maintain the physical integrity of the thing for that reason. Whether, and if so when, a thing is so kept is an objective question the answer to which must ordinarily turn on the applicable system of record-keeping.

73. For the purposes of the Archives Act, a document created or received is therefore not necessarily a "record". Depending on the applicable system of record-keeping, working documents such as notes, aide memoires and preliminary drafts might never become records. Originals of correspondence received and copies of correspondence sent will only become records if and when in fact kept by reason of their informational content or connection with an event, person or circumstance. Depending again on the applicable system of record-keeping, some correspondence, especially correspondence embodying communications of a routine or transient nature, might not be so kept at all. 

    "the Commonwealth" and "Commonwealth institution"

74. The term "Commonwealth" in a Commonwealth statute obviously means the "Commonwealth of Australia"[63]. But, of course, "the Commonwealth of Australia" can be used in a Commonwealth statute in different senses, corresponding at least to the several senses in which it is used in the Constitution[64].

    [63]Section 2B of the Acts Interpretation Act 1901 (Cth), definition of "Commonwealth".

    [64]R v Sharkey (1949) 79 CLR 121 at 153, quoting Moore, The Constitution of The Commonwealth of Australia, 2nd ed (1910) at 73.

75. The definite noun "the Commonwealth", when not used geographically, sometimes refers to the body politic of the Commonwealth of Australia. Together with the bodies politic of each of the States, the body politic of the Commonwealth of Australia was called into existence upon the proclamation of the Constitution. The Commonwealth as a body politic is a distinct legal entity, the legislative, executive and judicial powers of which are conferred and limited by the Constitution. The executive power of the Commonwealth as a body politic includes the power to exercise any right of property vested in the Commonwealth as a body politic. That executive power is formally vested in the Queen and exercisable by the Governor-General and is functionally exercisable by the Executive Government of the Commonwealth within the framework of responsible government established by Ch II of the Constitution[65], subject always to the capacity for statutory control by the Commonwealth Parliament[66]. When referring to the exercise of the executive power of the Commonwealth through the Executive Government of the Commonwealth, and when referring to its statutory control, the distinct legal personality of the Commonwealth as a body politic has traditionally been expressed as "the Crown in right of the Commonwealth"[67].

    [65]See New South Wales v Bardolph (1934) 52 CLR 455 at 489-490, 501-503, 507-509, 517-519; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 90-93 [115]-[122].

    [66]Brown v West (1990) 169 CLR 195 at 202.

    [67]eg The Commonwealth v Rhind (1966) 119 CLR 584 at 599; Jacobsen v Rogers (1995) 182 CLR 572 at 585; The Commonwealth v Western Australia (1999) 196 CLR 392 at 409-411 [31]-[36], 429-431 [105]-[109]; Sue v Hill (1999) 199 CLR 462 at 501 [90].

76. Sometimes a statutory reference to "the Commonwealth" is more broadly to the central government of the nation understood in accordance with "the conceptions of ordinary life"[68]. In that broader sense, the expression is not confined to the Commonwealth as a body politic but can extend to encompass agencies and instrumentalities of the central government which have their own legal personalities[69]. In that broader sense, it can extend to encompass the holders of constitutional offices of the Commonwealth as a body politic and of statutory offices created by the Commonwealth Parliament in their official capacities[70].

    [68]Bank of New South Wales v The Commonwealth ("the Bank Nationalisation Case") (1948) 76 CLR 1 at 363.

    [69]eg Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 233; Austral Pacific Group Ltd (In liq) v Airservices Australia (2000) 203 CLR 136 at 142 [10], 143 [14].

    [70]eg Crouch v Commissioner for Railways (Q) (1985) 159 CLR 22 at 36-43.

77. The distinction drawn between "the Commonwealth" and a "Commonwealth institution" makes apparent that "the Commonwealth" is used in the Archives Act in the narrower sense to refer only to the Commonwealth as a body politic. That usage is confirmed by the interlocking definitions of "Commonwealth institution", "authority of the Commonwealth", "Commonwealth‑controlled association" and "Commonwealth‑controlled company", to which extensive reference has been made, the operation of which is to bring within the statutory conception of a "Commonwealth institution" some but not all agencies and instrumentalities of the central government and some but not all holders of constitutional and statutory offices.

78. That usage is also specifically confirmed by the deeming of a record kept by a Royal Commission to be a Commonwealth record only when the record is no longer required for the purposes of the Royal Commission and by the prescription that a record held by or on behalf of the Parliament or a House of the Parliament is to be taken to be a Commonwealth record. Records held by or on behalf of a House of the Parliament include the Journals of the Senate and the Votes and Proceedings of the House of Representatives together with documents tabled in, or presented to or created by committees of, the Senate and the House of Representatives[71]. Records of the Senate are typically held in the custody of the Clerk of the Senate[72] and records of the House of Representatives are typically held in the custody of the Clerk of the House of Representatives under the direction of the Speaker of the House of Representatives[73].

    [71]cf Archives (Records of the Parliament) Regulations 2019 (Cth).

    [72]Australia, Senate, Standing Orders, standing order 44.

    [73]Australia, House of Representatives, Standing Orders, standing order 28.

79. Holders of constitutional and statutory offices are therefore not "the Commonwealth" for the purposes of the Archives Act merely by reason of holding office and acting in the discharge of the functions of office. Amongst the holders of constitutional offices who are not within that statutory conception of "the Commonwealth" are notably Ministers, Senators, members of the House of Representatives and Justices of the High Court and judges of the other courts created by Commonwealth Parliament. Amongst them also is the Governor-General.

80. Moreover, holders of such constitutional offices are not automatically within the statutory conception of a "Commonwealth institution". A Minister who is a member of the Federal Executive Council is not "the Executive Council"; a Senator is not "the Senate"; a member of the House of Representatives is not "the House of Representatives"; a Justice of the High Court or a judge of another court created by Commonwealth Parliament is not "a Federal court". In the same way, the Governor-General is not "the official establishment of the Governor-General". Unless specifically prescribed by a regulation made for the purpose of para (b) of the definition of "authority of the Commonwealth", none of those office holders is a "Commonwealth institution".

81. Exclusion of constitutional office holders from the statutory conception of the Commonwealth, and in the absence of regulation also from the statutory conception of a Commonwealth institution, is comprehensible as a matter of legislative design when regard is had to the relationship between constitutional office holders and components of the definition of a "Commonwealth institution". The relevant components are those which operate to bring within the statutory conception of a Commonwealth institution functional units of government which, in the regular course of public administration, are to be expected to have responsibility for the keeping of records created or obtained by the holders of constitutional offices in their official capacities. 

82. In the case of a Minister, the applicable functional unit is the Department of the Australian Public Service, which corresponds to the Department of State of the Commonwealth administered by that Minister. The Department is comprised of persons engaged or employed under the Public Service Act 1999. Subject to the capacity for direction by the Minister, responsibility for the management of the Department, including responsibility for the management of "property ... that is owned or held by the Commonwealth" within the portfolio administered by the Department, is cast by statute on the Secretary of the Department[74]. As the Solicitor-General of the Commonwealth emphasised in argument, a document created or received by a Minister in his or her official capacity can be expected in the regular course of public administration to be delivered into the control of the Department and kept by the Department on a departmental file. That is routinely so for originals of correspondence received and for copies of correspondence sent by the Minister in an official capacity. There will, of course, be exceptions. An email or memorandum embodying a confidential and politically sensitive communication between Ministers on a matter of government business, for example, if it is kept at all, might well be kept solely by one or other of those Ministers or within what has come to be referred to as the "private office"[75] of a Minister.

    [74]Section 57(2) of the Public Service Act 1999 (Cth) and ss 8 (definitions of "public resources" and "relevant property"), 12 (definition of "accountable authority"), 15 and 16 of the Public Governance, Performance and Accountability Act 2013 (Cth).

    [75]Ng, Ministerial Advisers in Australia: The Modern Legal Context (2016) at 1-2.

83. A notable feature of the design of the Archives Act is that ministerial consultants and personal staff engaged or employed under the Members of Parliament (Staff) Act1984 (Cth) are not within the definition of a "Commonwealth institution". One consequence is that a document that is kept within the private office of a Minister by reason of its informational content or its connection with an event, person or circumstance is not thereby a record that is kept by the Commonwealth or a Commonwealth institution. Another consequence is that a document created or received by a Senator or member of the House of Representatives is not a record that is kept by the Commonwealth or a Commonwealth institution even if the document is kept by reason of its informational content or its connection with an event, person or circumstance within the private office of the Senator or member.

84. In the case of a Justice of the High Court or a judge of another court created by Commonwealth Parliament, the applicable functional unit is the "Federal court" of which the judge is a member. The records of a court in the regular course of its administration can be expected to be kept under the control of its registry insofar as those records concern the exercise of judicial power or its chief executive officer insofar as those records concern matters of administration. The mere fact that a document is created or received by a judge in the discharge of his or her functions of office does not mean that the document is a record of the court of which the judge is a member. That is so even if the document is kept within the chambers of the judge by reason of its informational content or by reason of its connection with a case that is or has been before the court. A memorandum sent from one judge to another expressing a view as to the merits of a case on which both are sitting is unlikely ever to become a record given that the limited purpose and confidential nature of the communication would make it improper for the recipient to retain the memorandum once the case had been determined. But even if the recipient chose to take it upon himself or herself to preserve the memorandum for posterity, the memorandum would not by reason of being so kept by a judge become a record of the court.

85. In the case of the Governor-General, the applicable functional unit of government is "the official establishment of the Governor-General". To the meaning of that expression, it is appropriate next to turn.

    "the official establishment of the Governor-General"

86. The word "establishment" within the reference to "the official establishment of the Governor-General" in the definition of "Commonwealth institution" is evidently used in the arcane sense of referring to an organised staff provided at public expense for the assistance of the holder of a public office[76]. The word was used just once before in a Commonwealth statute in a cognate statutory expression in precisely that sense in the Governor-General's Establishment Act 1902 (Cth), which appropriated funds "[t]o assist in defraying the expenses of the Governor-General's establishment in connexion with the visit to Australia of Their Royal Highnesses the Duke and Duchess of Cornwall and York".

    [76]The Oxford English Dictionary, 2nd ed (1989), vol 5 at 405, senses 9 and 10.

87. The statutory reference to "the official establishment of the Governor-General" can therefore be taken for practical purposes now to be synonymous with the organisation that the Governor-General Act has since 1999[77] referred to as "the Office of Official Secretary to the Governor-General", constituted by the Official Secretary and staff employed by the Official Secretary[78]. The Governor-General Act now spells out that "[t]he function of the Office is to assist the Governor‑General"[79]. It now places the Official Secretary in relation to the management of the Office of Official Secretary to the Governor-General in like position to that of a Secretary in relation to the management of a Department[80].

    [77]Public Employment (Consequential and Transitional) Amendment Act 1999 (Cth).

    [78]Section 6(2) of the Governor-General Act.

    [79]Section 6(3) of the Governor-General Act.

    [80]Section 6(4) of the Governor-General Act.

235. With a dearth of modern authority, some judges have, like the submissions of the respondent, relied upon the rule adopted by Justinian's Institutes[269]. However, this rule: (i) was a forced compromise between two schools of thought[270]; (ii) was arguably intended to apply only where there was common ground between the schools[271]; (iii) has been powerfully criticised as taking "no account of the relative importance of the materials and of the maker's skill" and therefore leading to potentially bizarre consequences[272]; (iv) has not generally been adopted in English or Australian law[273]; and (v) is the subject of considerable variation in practice among Civilian jurisdictions[274] with dispute even in Scotland, where the dominant rule is closest to, but still not identical with, the Roman rule[275].

     [269]International Banking Corporation v Ferguson, Shaw, & Sons 1910 SC 182; McDonald v Provan (of Scotland Street) Ltd 1960 SLT 231 at 232. See also Borden (UK) Ltd v Scottish Timber Products Ltd [1981] Ch 25 at 35, 44, 46; Associated Alloys Pty Ltd v Metropolitan Engineering and Fabrications Pty Ltd (1996) 20 ACSR 205 at 209-210.

     [270]See D 41.1.7.7 (Gaius, Common Matters or Golden Things, bk 2): The Digest of Justinian, tr ed Watson, rev ed (1998), vol 4 at 3.

     [271]Thomas, Textbook of Roman Law (1976) at 175, fn 4.

     [272]Nicholas, An Introduction to Roman Law (1962) at 137.

     [273]Glencore International AG v Metro Trading International Inc [2001] 1 All ER (Comm) 103 at 165 [178]. Compare Blackstone, Commentaries on the Laws of England (1766), bk II at 404; Associated Alloys Pty Ltd v Metropolitan Engineering and Fabrications Pty Ltd (1996) 20 ACSR 205 at 209-210.

     [274]Compare, for instance, Code Civil, Arts 570, 571 (France); Bürgerliches Gesetzbuch, s 950 (Germany).

     [275]McDonald v Provan (of Scotland Street) Ltd 1960 SLT 231. See Scottish Law Commission, Corporeal Moveables: Mixing Union and Creation, Memorandum No 28 (1976) at [19]-[20].

236. For these reasons, although I proceed on the basis that Sir John Kerr was the creator of the correspondence sent to the Queen and that the Commonwealth had no right to exclude him from the original documents if they were created for him personally, I do not do so on the basis of the application of Justinian's rule as the respondent had submitted. I do so because the creation of the originals of the telegrams sent were the subject of substantial work and skill by Sir John and both the nature and the value of those originals depend essentially upon that work rather than upon the materials used. The same principle applies to the "originals" of the letters sent which were described as "carbon copies". I accept the submission of the Solicitor-General of the Commonwealth, which was not contested, that the Court should draw an inference that these carbon copies were "created simultaneously upon Sir John writing the letters ... rather than by some subsequent process by which an agent went away and copied them using a photocopier". However, the same conclusion might not apply in a case where the maker does no more than take a photocopy of another's thing so that the existence and nature of the new thing (if it be such) depends upon nothing more than the press of a button[276]. As the Director-General of the Australian Archives presciently observed during a committee consideration of the draft Archives Bill, "given modern copying technology, there may often be real doubt as to where ownership of a particular record resides"[277].

     The correspondence was created and received by Sir John Kerr for the institution of the official establishment of the Governor-General

     [276]Compare Glencore International AG v Metro Trading International Inc [2001] 1 All ER (Comm) 103 at 165 [178].

     [277]Australia, Senate, Standing Committee on Education and the Arts (Reference: Archives Bill) 1978-79, Official Hansard Transcript of Evidence (1979) at 19.

237. The primary submission by the appellant was that the Commonwealth obtained a property right to all the original documents created or received by the Governor-General in the course of performance of his duties. This submission cannot be accepted.

238. Since the Governor-General is neither the body politic of the Commonwealth nor the institution of the official establishment of the Governor-General, things created or received by the Governor-General can only become the property of the Commonwealth if the circumstances indicate that they were created or received officially, and retained institutionally. The creation or receipt of documents in that way involves physical control over the documents being asserted with a manifested, or objective, intention that the Commonwealth or the Commonwealth institution have a right to exclude others from them.

239. The fact that something is created or received by a public officer in the course of performance of public duties is a powerful indicator that it was created or received for the institution so that the legal entity of the Commonwealth or the Commonwealth institution has a property right in that thing. But documents are commonly created or received in the course of performance of public duties where the creation or receipt is entirely personal and not institutional. Examples are preliminary working papers, personal notes or drafts of a final product created by judges, Ministers, Senators or the Governor-General. As the majority rightly said in the Full Court, if the Commonwealth obtained a property right in the correspondence, thus rendering the correspondence a "Commonwealth record" under s 3(1) of the Archives Act, simply because the officer was performing duties, this would "introduce an administrative provenance definition, when that alternative had been rejected some years earlier"[278]. 

     [278]Hocking v Director-General of the National Archives of Australia (2019) 264 FCR 1 at 18 [86].

240. The respondent submitted that the Commonwealth obtains a property right to documents created by the Governor-General when the Governor-General is acting as "an emanation" of the Commonwealth. But the expression "emanation of the Commonwealth" either is too opaque to be meaningful or collapses into an approach based upon agency which the respondent rightly disclaimed as too narrow. The "much criticised"[279] expression, "emanation of the Crown", has similarly been said to convey "no meaning capable of precise significance"[280] and, where it is used, commonly denotes a relationship of agency such that the so-called emanation is acting with actual or apparent authority of the Crown[281]. The issue of whether a document was created or received for an institution that is not a legal entity is not one of agency, although there are similarities.

     [279]NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at 149 [163].

     [280]Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248 at 284.

     [281]International Railway Co v Niagara Parks Commission [1941] AC 328 at 342-343. See also Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 42 [50].

241. The general principles of property adopted in the Archives Act require consideration of whether the creation of the new thing (the carbon copies of letters, and originals of telegrams, sent) or the receipt of a new thing (the correspondence received), as objectively characterised, (i) was solely for Sir John Kerr personally so that he alone obtained the property right or (ii) was official, being created or received officially and retained for the institution of the official establishment of the Governor-General with a property right held by the body politic of the Commonwealth so that the correspondence was a "Commonwealth record" within s 3(1) of the Archives Act. There are five reasons why the correct characterisation is the latter in the circumstances of this case.

242. First, the exchange of correspondence was treated by Sir John Kerr as an official issue. Sir John was assisted by Mr Smith in the preparation of correspondence sent to the Queen and in discussing the correspondence received from the Queen. As Sir John observed in a letter to Mr Smith, he adopted a system "of the Official Secretary participating in the preparation" of what he described as "Palace correspondence" and providing comments on the replies from the Palace. At that time, the office of Official Secretary to the Governor-General was not a statutory office[282]. The position of Official Secretary was filled by Mr Smith as a public servant holding an office in a Department (within the definition of "Commonwealth institution" in s 3(1) of the Archives Act), namely the Department of the Prime Minister and Cabinet[283]. Thus, the correspondence written by the Governor-General was authored with the assistance of an officer of the public service who formed part of the official establishment of the Governor-General.

     [282]Australia, House of Representatives, Public Service Reform Bill 1984, Explanatory Memorandum at 47.

     [283]Australia, House of Representatives, Public Service Reform Bill 1984, Explanatory Memorandum at 47. See Public Service Act 1922 (Cth), s 48A (as at 19 December 1973).

243. Secondly, as the primary judge correctly characterised the correspondence between the Governor-General and the Queen, it was correspondence "arising from the performance of the duties and functions of the office of Governor-General"[284]. Holders of high public offices such as that of the Governor-General have been described as "trustees of the public"[285]. Public powers to act in the performance of duties are said to be conferred "as it were upon trust"[286]. These loose references to trusteeship are expressions of the duty of loyalty owed by holders of public offices created "for the benefit of the State"[287]. Like all implied duties of loyalty, the content of the duty falls to be determined against a background of general expectations, based upon custom, convention and practice, which impose upon the public officer "an inescapable obligation to serve the public with the highest fidelity"[288]. Thus, a member of Parliament has a duty to "act with fidelity and with a single-mindedness for the welfare of the community"[289].

     [284]Hocking v Director-General of National Archives of Australia (2018) 255 FCR 1 at 35 [132].

     [285]Finn, "The Forgotten 'Trust': The People and the State", in Cope (ed), Equity: Issues and Trends (1995) 131 at 143. See also R v Bembridge (1783) 22 St Tr 1 at 155 ("an office of trust and confidence, concerning the public"); R v Whitaker [1914] 3 KB 1283 at 1296-1297.

     [286]Porter v Magill [2002] 2 AC 357 at 463 [19], quoting R v Tower Hamlets London Borough Council; Ex parte Chetnik Developments Ltd [1988] AC 858 at 872, in turn quoting Wade, Administrative Law, 5th ed (1982) at 355. See also Three Rivers District Council v Governor and Company of the Bank of England [No 3] [2003] 2 AC 1 at 235 (power "held in trust for the general public").

     [287]Chitty, A Treatise on the Law of the Prerogatives of the Crown; and the Relative Duties and Rights of the Subject (1820) at 83.

     [288]Driscoll v Burlington-Bristol Bridge Co (1952) 86 A 2d 201 at 221.

     [289]R v Boston (1923) 33 CLR 386 at 400. See also Re Day [No 2] (2017) 263 CLR 201 at 221 [49], 251 [179], 272 [269].

244. Compliance with this obligation of loyalty was manifested by the expressed reason why Sir John Kerr kept the originals of the telegrams sent, the carbon copies of the letters sent, and the correspondence received, as part of the performance of his official duties. As Sir John expressed this reason in a letter to the Private Secretary to the Queen, it was that "[h]aving regard to the probable historical importance of what we have written, it has to be ... preserved". Sir John's expression of the desire to preserve the documents given their historical import, understood in light of his duties of public loyalty, militates powerfully against the originals having been created or received by him personally. 

245. Thirdly, events subsequent to the creation or receipt of the original correspondence, which reveal how the original correspondence was treated, can shed light on how the correspondence was created or received. In particular, the subsequent treatment of the "original" correspondence as institutional, that is, part of the official establishment of the Governor-General, is supported by a letter written by Prime Minister Malcolm Fraser to Sir John Kerr towards the end of Sir John's period as Governor-General and from which there is no suggestion of demur by Sir John. The Prime Minister referred in that letter to the draft Archives Bill and said that "Government House records ... are part of the history of Australia and it is proper that they should receive all the care and protection possible". The Prime Minister continued:  

     "For that purpose clause 21 provides that Australian Archives may enter into arrangements with a Governor-General to take custody of records under access rules which a Governor-General may lay down."

     In the draft of the Archives Bill that was current at the time that the Prime Minister wrote, cl 21 permitted those arrangements to be made for records of the Governor-General that were exempt from the operation of Divs 2 and 3 of Pt V of the Archives Bill, concerning dealings with Commonwealth records and access to Commonwealth records[290]. Although that draft of the Archives Bill contained no reference to the "official establishment of the Governor-General" as a category of Commonwealth institution, it was still contemplated that the records were Commonwealth records. The Prime Minister was referring to an exemption from the regime of dealings with Commonwealth records and access to Commonwealth records which assumed that those records were Commonwealth records that required exemption. Naturally, once there was express provision for the institution of the Governor-General and removal of the exemption from the Archives Bill when it was reintroduced in 1983 the inference that originals of the correspondence were created or received institutionally, and were therefore Commonwealth records, became even stronger.

     [290]See cl 18(1)(a) of the Archives Bill 1978 (Cth).

246. Fourthly, the same institutional approach to the correspondence was taken after Sir John Kerr's retirement as Governor-General by the different treatment of the original correspondence (the original telegrams sent, the carbon copies of the letters sent, and the original letters received) and the copies made of those originals. Very shortly before Sir John's retirement as Governor-General took effect, on 18 November 1977 the Director-General of the Australian Archives wrote to Mr Smith, as Sir John's Official Secretary, confirming their agreement that both the originals and the "copies" would be transferred to the Australian Archives with the copies then to be sent to a London address for Sir John. After Sir John's retirement took effect, Mr Smith (who was then the Official Secretary to the new Governor-General, Sir Zelman Cowen) wrote to Sir John on 23 December 1977 and described photocopying that he had been undertaking on the instructions of Sir John of correspondence in the "original file" at Government House. He said that he could "copy only at night" and had been encountering problems with the copying process. He explained that "[i]n the meantime the papers are in my strong-room under absolute security until the task is completed and the original file is in Archives".

247. These letters provide strong support for the treatment of Sir John Kerr's correspondence with the Queen as being subject to property rights of the Commonwealth as a body politic or, more loosely, as part of the institution of "the official establishment of the Governor-General". Relevantly, the matters supporting this conclusion are: (i) the presence of the "originals" of the correspondence at Government House even after Sir John had left office; (ii) the separate arrangements made by Sir John for copies to be made for his own personal purposes; (iii) the description of the originals as part of a "file"; and (iv) the high security within Government House which was given to the file containing the originals.

248. Fifthly, it was an agreed fact that Mr Smith lodged the originals of the correspondence with the Australian Archives on 26 August 1978 (at which time the Governor-General was Sir Zelman Cowen) as the Official Secretary to the Governor-General. Although Mr Smith referred in the letter of deposit to various caveats by Sir John Kerr including that the "papers are to remain closed until 60 years after the end of his appointment as Governor-General", he did not sign the letter of deposit as an agent for Sir John. He signed it as the "Official Secretary to the Governor-General".

249. Each of these five matters points to the character of the correspondence between the Governor-General and the Queen as being created or received officially and kept institutionally. As I explain below, some of the content of that correspondence might have been confidential, and some might have contained observations of a personal nature, akin to those in correspondence between State Governors and the Queen concerning "reports relating to affairs in the State", which were described as "most helpful to Her Majesty" when containing information "of a general nature, from ... personal enquiries or experiences, and impressions gained during travel". Nevertheless, the agreed fact in this case was that the correspondence "relat[ed] to the official duties and responsibilities of the Governor-General".

     There was no convention that the correspondence was not official or institutional

250. The respondent supported the contrary conclusion by relying upon the references by the primary judge to correspondence that suggested that several people subjectively held the view that title to the documents was held by Sir John Kerr. The people said to have held that subjective view were Sir John himself, one former Director-General of the Australian Archives, the executor of Lady Kerr's estate, and some previous Governors-General, namely Lord Stonehaven, Lord Casey, and Sir Paul Hasluck[291]. The respondent also relied upon the subjective view of the Private Secretary to the Queen, who, in replying to a letter from Sir John, referred to the letters as "your papers".

     [291]Hocking v Director-General of National Archives of Australia (2018) 255 FCR 1 at 11 [15], 29 [108], 30-31 [113]-[117(a)-(e)].

251. These submissions were factually overstated. Sir John Kerr probably did not hold the view that he had title to the originals, as opposed to the copies, to the exclusion of the Commonwealth. For the reasons explained above[292], Prime Minister Fraser did not hold that view and Sir John had not demurred from the view of the Prime Minister in correspondence with him. In a letter to the Private Secretary to the Queen, Sir John also said that "I can make the appropriate decisions about papers which are exclusively mine, but our correspondence falls into a different category". It was in response to that letter that the Private Secretary had referred to "your papers dealing with the Governor-Generalship".

     [292]At [245].

252. Sir Paul Hasluck also did not regard his correspondence with the Queen as part of his personal property. In the outline to his collation of "The Governor-General's papers", which were an exhibit at trial, the papers were divided into five groups. The first group concerned the despatches written to the Queen and the responses by her Private Secretary. The documents in that group were described as requiring the permission of Her Majesty before they could be made public. In contrast, in the second group, notes made in the Governor-General's personal minute book were described as "the private property of Sir Paul Hasluck".

253. As for the opinion of the Archives itself, the clearest expression of the opinion that such correspondence was not a Commonwealth record was made decades after the correspondence in issue. Earlier expressions of opinion are more equivocal. For instance, the appellant pointed to a statement by the Director-General of the Australian Archives in a letter dated 18 November 1977 that conditions of access to the originals of the correspondence in this case "would normally be administered by the official policy governing such papers" and that "variation from these rules will be determined by discussions in London". The role of London in amending rules of access is, at least, in tension with an understanding that the originals of the correspondence are the personal property of Sir John Kerr.

254. More fundamentally than any factual overstatement, the legal flaw in the respondent's submission is that a person does not obtain a property right by thinking they have a property right or merely by them or others expressing that belief. The respondent's submission thus transmogrified to an argument that the expression of these subjective views established a convention that the correspondence was "private and confidential" and "does not form part of any official government record". If this convention existed at the time of the correspondence, and if it were not inconsistent with the policy of the Archives Act, then the respondent would be correct that the correspondence was not created or received officially nor retained institutionally so that the originals of the correspondence would not be the property of the Commonwealth.

255. It is only in the application of whether the correspondence was created or received institutionally that the convention suggested in this case could be recognised and enforced by the Court[293]. The convention could not contradict the effect of the Archives Act; it could only operate to establish a rule based upon the uniform consensus of the relevant persons that correspondence passing between the Governor-General and the Queen is never created or received by the Governor-General officially nor retained institutionally. In other words, the convention to be given effect is that the correspondence would never be created or received for the institution of the official establishment of the Governor-General.

     [293]Compare, generally, Dicey, Introduction to the Study of the Law of the Constitution, 9th ed (1939) at 417 and Barber, "Laws and Constitutional Conventions" (2009) 125 Law Quarterly Review 294.

256. A common starting point for ascertaining the existence of a convention is the three questions posed by Sir Ivor Jennings[294]: "first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?" This approach is not a fixed legal test. Recorded historical precedents are only one indicator of past practice. Further, although the expressions of belief by actors can be important, the work and approach of senior bureaucrats, scholars and other writers can be relevant where the convention is one that binds the general public[295]. More fundamentally for present purposes, the conventions with which Jennings was concerned were those of a "duty-imposing" kind rather than a rule of characterisation such as characterising the nature of correspondence[296]. Nevertheless, it suffices in this case to address the convention in the terms upon which it was asserted by the respondent, purportedly supported by the three criteria proposed by Jennings.

     [294]Jennings, The Law and the Constitution, 5th ed (1959) at 136, adopted in Re: Resolution to Amend the Constitution [1981] 1 SCR 753 at 888.

     [295]See also Heard, "Constitutional Conventions: the Heart of the Living Constitution" (2012) 6 Journal of Parliamentary and Political Law 319 at 332.

     [296]See also Jaconelli, "Do Constitutional Conventions Bind?" (2005) 64 Cambridge Law Journal 149 at 152, citing Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability (1984) at 210.

257. As Professor Twomey has explained, a convention that excludes from government records the correspondence between the Governor-General and the Queen is "difficult to substantiate" upon Jennings' approach for three reasons[297]. First, prior to 1983, Commonwealth record-keeping was "haphazard and little regulated". If they were not lost, vice-regal records were sometimes kept by Governors-General or their families, sometimes kept by national institutions and sometimes archived on government files.

     [297]Twomey, "Peering into the Black Box of Executive Power: Cabinet Manuals, Secrecy and the Identification of Convention", in Varuhas and Stark (eds), The Frontiers of Public Law (2019) 399 at 410-411.

258. Secondly, the precedents in relation to the manner in which vice-regal records are handled are, at best, "thin"[298]. The respondent's overstatement of the position of some of the relevant actors has already been mentioned. More fundamentally, some of the thin precedents relied upon by the respondent would support a wider convention than that relied upon by the respondent, extending to all correspondence between the Governor-General and the Queen, whether or not it was confidential. For instance, only "some" of the correspondence between Lord Casey and the Queen or her Private Secretary, which he took with him at the end of his term as Governor-General, was confidential[299].

     [298]Twomey, "Peering into the Black Box of Executive Power: Cabinet Manuals, Secrecy and the Identification of Convention", in Varuhas and Stark (eds), The Frontiers of Public Law (2019) 399 at 410.

     [299]Hocking v Director-General of National Archives of Australia (2018) 255 FCR 1 at 14 [23].

259. In addition to the weakness of the precedents, there is also the lack of evidentiary support for the submission that the behaviour of the relevant actors is attributable only to a belief in an underlying norm that the original correspondence was personal and was not official. For instance, even if Sir Paul Hasluck believed that he held property rights to the exclusion of the Commonwealth in the personal and confidential correspondence between him and the Queen during his tenure as Governor-General, there is no evidence to suggest that he saw those property rights as arising due to an understanding that correspondence with the Queen must be treated as non-institutional. A similar point was made by the Director-General of the Australian Archives in evidence to a committee consideration of the draft Archives Bill about the practice of public servants and Ministers in treating official papers as if they were personal records. Even if this were not done knowingly, the Ministers could not be said to have reached a conclusion by critical reflection. The Director-General said this[300]:

     "The papers of Lord Bruce, for example, are called personal papers. They are copies of every cable sent by Bruce and received by Bruce while he was in office in London, every record of conversation he had with every ambassador and with every British official, and of records, of which he should never have made, of debates which took place in the British War Cabinet. There is nothing whatsoever private or personal about them. They are copies of official records and in the [Archives Bill] sense they are copies of Commonwealth records ... Many other Ministers have followed this practice and they have kept in their offices complete sets of copies of correspondence crossing their desk".

     In the report of the Committee the view of the Australian Archives was recorded that "in many of the collections of personal papers of former ministers and officials there were records which might be the property of the Commonwealth"[301].

     [300]Australia, Senate, Standing Committee on Education and the Arts (Reference: Archives Bill) 1978-79, Official Hansard Transcript of Evidence (1979) at 42-43.

     [301]Australia, Senate Standing Committee on Education and the Arts, Report on the Archives Bill 1978 (1979) at 9 [3.9].

260. Thirdly, there is "no adequate reason" for the convention proposed by the respondent[302]. No coherent principle could justify a convention that title to the originals of final correspondence, created and received as part of official duties, should vest in a holder of high public office to the exclusion of the Commonwealth. The principle of loyalty which underlies public office, and which precludes public officers from benefiting personally from their office[303], points to the opposite conclusion. Indeed, as the appellant observed, the effect of the convention suggested by the respondent is that the more controversial the correspondence the more wealth that would be created for the Governor-General.

     [302]Twomey, "Peering into the Black Box of Executive Power: Cabinet Manuals, Secrecy and the Identification of Convention", in Varuhas and Stark (eds), The Frontiers of Public Law (2019) 399 at 411.

     [303]For instance, see The Earl of Devonshire's Case (1607) 11 Co Rep 89a [77 ER 1266]; Hornsey Urban Council v Hennell [1902] 2 KB 73 at 80; Attorney-General for Hong Kong v Reid [1994] 1 AC 324 at 330. See also Re Day [No 2] (2017) 263 CLR 201 at 250-251 [174]-[179], 272-273 [270]-[271].

261. The respondent relied upon a letter, dated 1 February 2017 and written in an attempt to clarify the position prior to the trial in this matter, from the Official Secretary to the Governor-General to the Private Secretary to the Queen. In that letter, the Official Secretary said that his understanding was that "it is a matter of long-standing convention that non-official correspondence between the Monarch and Her Governors-General across the 15 Realms outside the United Kingdom are private and confidential communications, not forming part of any official government records". It was asserted that the reason for the convention was to enable the communication between the Queen and the Governor-General to be in confidence and thereby to permit and facilitate such communication. The reply from the Private Secretary to the Queen was no doubt written with considerable care and with the expressed permission for the letter to form part of the "official submissions to the Court". It did not acknowledge that the communications were "non-official" or that they did not form part of any official government records. The convention to which the Private Secretary referred was "a convention of confidentiality ... necessary to protect the privacy and dignity of the Sovereign and her Governors-General, and to preserve the constitutional position of the Monarch and the Monarchy".

262. The confidentiality of the correspondence to which the Private Secretary referred is entirely consistent with the marking of the correspondence between the Queen and the Governor-General as "personal and confidential". That labelling convention was explained in documentary exhibits from trial concerning correspondence from State Governors to the Queen through the relevant Secretary of State on general affairs in the State. The labelling convention was explained as requiring the use of "confidential" to describe correspondence which, although part of official despatches on general affairs in the State, contained the views of the Governor and not of their Ministers and the use of "personal and confidential" to describe correspondence that was confidential and also contained personal observations of a general nature.

263. Confidentiality is not a reason that could justify a convention that correspondence passing between the Governor-General and the Queen is never created or received by the Governor-General officially nor retained as part of the institution of the official establishment of the Governor-General. Whether or not the correspondence is created or received officially, and whether or not it is retained institutionally, the confidentiality of such correspondence is protected by the general law of confidence[304]. It is also protected by the categories of exemption to which Senator Hamer referred during the hearings concerning the Archives Bill before the Senate Standing Committee, including as "information or matter the disclosure of which under [the Archives Act] could reasonably be expected to cause damage to the ... international relations of the Commonwealth"[305] or as "information or matter the disclosure of which under [the Archives Act] would constitute a breach of confidence"[306]. That protection, however, is neither absolute nor perpetual.

     [304]Earl of Lytton v Devey (1884) 54 LJ Ch 293 at 295, citing Pope v Curl (1741) 2 Atk 342 at 342 [26 ER 608 at 608].

     [305]Archives Act, s 33(1)(a). See Australia, Senate, Standing Committee on Constitutional and Legal Affairs (Reference: Freedom of Information), Transcript of Evidence, 13 December 1978 at 714-715.

     [306]Archives Act, s 33(1)(d).

264. The labelling convention of "personal and confidential" is also not inconsistent with a characterisation of the correspondence as official or with its retention institutionally. Indeed, the trial exhibits in this matter include correspondence, disclosed under the open access provisions of the Archives Act, between Sir Paul Hasluck, the Governor-General prior to Sir John Kerr, and the Private Secretary to the Queen concerning quintessentially institutional matters such as the employment relationships in the official establishment of the Governor-General. That correspondence was marked "Personal and Confidential". And even if it was once confidential it is no longer so: "a person who sends a communication to a public officer, relative to the public business, cannot make his communication private and confidential simply by labeling it as such. The law determines its character, not the will of the sender."[307]

     [307]Egan v Board of Water Supply of New York (1912) 98 NE 467 at 470.

     Extreme consequences

265. The respondent submitted that a legal rule to govern the application of the meaning of "property" was needed because the consequence of permitting title to the original correspondence to be held by the Commonwealth would be that the correspondence "could be inspected within government and/or publicly released at any time of the Government's choosing". The implicit suggestion that information about which the Queen has rights to confidence might be publicly released by the executive in breach of duties of confidence upon which the Queen imparted the information, or that the executive would assert the property right of the Commonwealth as a body politic to discover the content of the correspondence at any time of the executive's choosing, is the type of extreme consequence that is of little assistance in the interpretation of legislative provisions[308].

     [308]See Love v The Commonwealth (2020) 94 ALJR 198 at 289 [455] and the authorities cited there; 375 ALR 597 at 711-712.

266. In any event, it could hardly be supposed that confidences would be more likely to be protected if title to the correspondence were held privately, to the exclusion of the Commonwealth, so that the Governor-General personally could sell, publish or distribute the correspondence at any time. The respondent correctly observed that "no responsible Governor-General would ever do such a thing". But the reason this would not occur in Australia is the duty of loyalty that exists for original records kept of correspondence sent or received. This duty contrasts with the position in the United States, where Presidents do not regard themselves as "trustees for the American people" so that, absent voluntary arrangements for a Presidential Library, the institutional correspondence of a President can be sold "for a fancy sum" or can be the subject of arrangements, such as in the case of President Monroe, for publication with the profits to be divided among his daughters and son-in-law[309].

     [309]  Nixon v United States (1992) 978 F 2d 1269 at 1278.

     Conclusion

267. Orders should be made as follows:

     1.        Appeal allowed.

     2.Set aside the orders of the Full Court of the Federal Court of Australia made on 8 February 2019 and, in their place, order that:

     (a) the appeal to the Full Court be allowed;

     (b)the orders of Griffiths J made on 16 March 2018 be set aside and, in their place, it be:

     (i)declared that the contents of Record AA1984/609 ("the deposited correspondence") constitute Commonwealth records within the meaning of the Archives Act 1983 (Cth);

     (ii)ordered that a writ of mandamus issue to compel the Director-General of the National Archives of Australia to reconsider Professor Hocking's request for access to the deposited correspondence; and

     (iii)ordered that the Director-General of the National Archives of Australia pay Professor Hocking's costs at first instance; and

     (c)the Director-General of the National Archives of Australia pay Professor Hocking's costs of the appeal to the Full Court.

     3. The Director-General of the National Archives pay Professor Hocking's costs of this appeal.