FEDERAL COURT OF AUSTRALIA

Hocking v Director-General of National Archives of Australia [2018] FCA 340

ORDERS

THE COURT ORDERS THAT:

1.    The originating application filed on 20 October 2016 be dismissed.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    These proceedings raise important issues concerning access under the Archives Act 1983 (Cth) (the Act) to a bundle of correspondence between the then Governor-General of Australia, Sir John Kerr, and The Queen or The Queen’s Private Secretary. The relevant documents, which are known as “Series AA1984/609” (AA1984/609), were placed in the custody of Australian Archives on 26 August 1978 by Mr David Smith, the then Official Secretary to the Governor-General. The records relate to one of the most controversial and tumultuous events in the modern history of the nation, namely Sir John Kerr’s dismissal of Prime Minister Gough Whitlam. It will be necessary to say something more later regarding the circumstances surrounding the lodgement of the records with Australian Archives. Sir John had ceased to be Governor-General in December 1977. The Act did not commence until 6 June 1984. Relevantly, however, it contains transitional provisions relating to records which were in the custody of Australian Archives prior to that time.

2    The applicant sought access to the documents under the Act. Access was refused by the National Archives of Australia (Archives) on 10 May 2016 on the stated basis that the documents were not “Commonwealth records”. Rather, they were said to be Sir John’s personal property which the Archives had custody of in accordance with the transitional and other relevant provisions of the Act. Archives said that it did “not have power or authority to give access…other than in accordance with the instrument of deposit and arrangements specified by the offices of The Queen and the Governor-General”.

3    The central question in the proceeding is whether or not the relevant records are Commonwealth records, with the consequence that public access to them would be governed by Div 3 of Pt V of the Act, and not the terms of the instrument (or letter) of deposit.

4    Under those terms of deposit:

(a)    the documents in AA1984/609 were described as the “personal and confidential correspondence” between Sir John and The Queen;

(b)    reference was made to “The Queen’s wishes and Sir John Kerr’s instructions” that the papers were to remain closed for 60 years until after the end of Sir John’s appointment as Governor-General, i.e. until after 8 December 2037; and

(c)    a further condition on access was that “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”.

5    The parties agreed that, in this judicial review proceeding, it was unnecessary for the Court to examine the documents in AA1984/609 in order to determine the issues.

Summary of background facts

6    On 10 July 2011, the applicant made an application under the Act for access to another bundle of records (M4513), which bundle comprised an almost complete copy of AA1984/609. Access to M4513 was declined by Archives on the basis that the documents were not Commonwealth records, but rather were said to be personal and private correspondence between The Queen and the Governor-General, access to which fell to be determined by instructions in the Instrument of Deposit. It is unnecessary in these proceedings to resolve any issues concerning M4513 as there is no challenge to that decision by Archives. Nevertheless, the facts relating to M4513 may inform the determination of some of the issues concerning AA1984/609.

7    On 31 March 2016, the applicant lodged a request for access to the documents comprising AA1984/609. Access was refused by Archives in a letter dated 10 May 2016, which stated that the documents were not a “Commonwealth record” and were not subject to the Act. Relevantly, the letter stated:

…

Records AA1984/609

5.    Record AA1984/609 was deposited on 8 September 1978. It is not a ‘Commonwealth record’ and is not subject to the access provisions under the Archives Act 1983 (Archives Act) for the same reasons as Record M4513.

6.    The mere fact that the documents may have connection with office of the Governor-General does not mean that such documents are the property of the Commonwealth. Nor is it correct to conflate the role of the Governor-General with that of ‘the Commonwealth’.

7.    Record AA1984/609 remains under the effective and immediate control of the Office of the Governor-General through the Official Secretary of the Governor-General. The NAA has custody of the record in accordance with ss 5(2)(f) and 6(2) of the Archives Act. It does not have power or authority to give access to the record other than in accordance with the instrument of deposit and arrangements specified by the offices of the Queen and the Governor-General.

8    It is common ground that this decision by Archives cannot be reviewed by the Administrative Appeals Tribunal (AAT). The present proceedings are in the nature of a judicial review of the decision dated 10 May 2016 pursuant to s 39B of the Judiciary Act 1903 (Cth). Notices were issued under s 78B of the Judiciary Act 1903 (Cth), on the basis that determination of whether AA1984/609 is a Commonwealth record as defined in the Act involves a consideration of the relationship between the Governor-General and the Commonwealth under the Commonwealth of Australia Constitution Act (Constitution), and the respective roles of, and the relationship and communication between, The Queen and the Governor-General under the Constitution.

(a) Agreed statement of facts

9    At this point, it is convenient to set out in full the parties’ agreed statement of facts:

Parties

1.    The Applicant is an academic historian and writer with a particular research interest in Gough Whitlam and the Whitlam federal government which held office from 1972 to 1975.

2.    The Respondent holds the office of Director-General of the National Archives of Australia (the Archives) under s. 7 of the Archives Act 1983 (Cth) (Act).

Background

3.    The office of Governor-General of the Commonwealth of Australia was held by:

(a)    Sir John Kerr from 1974 to 8 December 1977;

(b)    Sir Zelman Cowen from 1977 to 1982;

(c)    Sir Ninian Stephen from 1982 to 1989;

(d)    Mr Bill Hayden from 1989 to 1996.

4.    From 1973 until the commencement of s.6 of the Governor-General Act 1974 on 24 December 1984, Mr David Smith:

(a)    was an officer of the Prime Minister's Department in the Commonwealth public service; and

(b)    was Official Secretary to each of the Governors-General who held office in that period.

5.    From December 1984 to 1990 Mr Smith held the office of Official Secretary to the Governor-General pursuant to s.6 of the Governor-General Act 1974. An English Honour of Knight Commander of the Royal Victorian Order was conferred on Mr Smith on 19 August 1990.

AA1984/609

6.    On 26 August 1978 Mr Smith, in his capacity as Official Secretary to the Governor General lodged with the Archives the documents contained in Archives record AA1984/609 (AA1984/609).

7.    AA1984/609 comprises six parts which consist of the originals of correspondence received by, and contemporaneously made copies of correspondence sent by, the former Governor-General, Sir John Kerr (the Governor-General), or his Official Secretary, to and from The Queen by means of Her Private Secretary.

8.    The correspondence comprises letters and telegrams and certain attachments to that correspondence (for example, newspaper clippings and letters).

9.    The period of the correspondence between the Governor-General and The Queen is 15 August 1974 to 5 December 1977.

10.    The majority of the letters exchanged between the Governor-General (including by means of his Official Secretary) and the Queen (by means of Her Private Secretary) address topics relating to the official duties and responsibilities of the Governor-General. Some of the letters sent by the Governor-General (including by means of his Official Secretary) take the form of reports to The Queen about the events of the day in Australia. Certain of these letters 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.    Mr Smith by letter covering the original bundle instructed that those papers:

(a)    were to remain closed until after 8 December 2037; and

(b)    thereafter were not to be released without prior consultation with the Sovereign's Private Secretary of the day and the Governor-General's Official Secretary of the day.

12.    On 23 July 1991 the then official secretary to the Governor-General, Douglas Sturkey, instructed the Archives that, on the instructions of The Queen, the date of release of the original bundle had been amended to after 8 December 2027, subject to the approval of the Sovereign's Private Secretary and the Official Secretary to the Governor-General.

13.    By letter of 31 March 2016 the Applicant, by her solicitors, requested access pursuant to the Act to AA1984/609.

14.    Because all of the contents of AA1984/609 were within the open access period for the purposes of the Act, if any of the records contained in AA1984/609 were a "Commonwealth record" within the meaning of the Act, Part V of the Act applied to require the Respondent to:

(a)    give access to the document in accordance with that Part; or

(b)    make a decision refusing to grant access pursuant to Division 3 of Part V of the Act.

15.    The Respondent has not provided access to AA1984/609 in whole or in part for the reasons given in the letter from Archives to the Applicant dated 10 May 2016.

M4513

16.    Series M4513 Part 1 (M4513) is a near complete copy of Series AA1984/609. That is, the records of M4513 are photocopies of the personal and confidential correspondence between the Governor-General (or his Official Secretary) and The Queen by means of Her Private Secretary, and certain attachments to that correspondence (for example, newspaper clippings and letters).

17.    Sir John Kerr died on 24 March 1991.

18.    The widow of Sir John Kerr, Anne Dorothy Kerr (Lady Kerr) died on 16 September 1997.

19.    Ms Gabrielle Kibble, Sir John Kerr's eldest daughter, arranged for the Archives to collect records in 1998. Included among the records collected by the Archives pursuant to that arrangement was M4513 which was collected by the Archives in June 1998.

20.    On 29 March 2004 Stephanie Anne Bashford, the daughter of Lady Kerr, and executor of her estate, signed an instrument of deposit with the Archives by which she:

(a)    stipulated that those records deposited by her which were not subject to the access provisions of the Act (non-Commonwealth or private records) would be made available for public access when 30 years have elapsed from their date of creation; and

(b)    agreed that any records that had been deposited in the custody of the Archives by her before the date of that instrument were to be covered by the conditions set out in that instrument.

21.    On 9 March 2017, Ms Bashford signed a further instrument of deposit with the Archives which acknowledged certain matters and specified certain conditions with respect to the following records, described in the instrument as the "specified records":

Photocopies of the personal and confidential correspondence between the former Governor-General of Australia Sir John Kerr (or his Official Secretary) and the Queen by her Private Secretary in the period 15 August 1974 to 5 December 1977, and attachments to that correspondence, as contained in Australian Archives Series M4513.

22.    By the further instrument of deposit dated 9 March 2017, Ms Bashford specified that:

(a)    To the extent that, but for the 9 March 2017 instrument, her earlier Instrument of Deposit dated 29 March 2004 would apply to the specified records, she now stipulates that that instrument does not govern access to the specified records.

(b)    To the extent that the instrument of deposit made by Sir David Smith, dated 26 August 1978 as varied by the instrument of deposit made by Douglas Sturkey dated 23 July 1991, does not otherwise apply to the specified records, she now stipulates that access to the specified records is to be governed by, and take place in accordance with, the conditions set out in those instruments (i.e. as if those instruments did apply, of their own force and effect, to the specified records). Accordingly, access to the specified records is to remain closed until 50 years after the end of Sir John Kerr's appointment as Governor-General, i.e. until after 8 December 2027; and thereafter their release is subject to the approval of the Sovereign's Private Secretary and the Official Secretary of the Governor-General.

23.    The Applicant has an interest in accessing AA1984/609 being the interest of a professional historian who has published widely on matters the subject of some of the documents which constitute AA1984/609; and who intends if and when any of those records be published to use them to write and publish further on those matters.

(b) Some additional relevant evidentiary matters

10    Three lever arch folders were jointly tendered by the parties. The applicant also tendered a Supplementary Tender Bundle, primarily in response to a new document which was added belatedly to the Joint Tender Bundle by Archives as Tab 15A (see further [14] below).

11    The tendered documents which were of primary focus in the parties’ submissions were as follows.

12    First, on 22 September 1976 Sir John Kerr wrote to The Queen’s Private Secretary, Sir Martin Charteris, on the subject of Sir John’s papers. The letter is marked “Personal and Confidential” and, omitting formal parts, it is 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 in the relatively near future – indeed whenever I 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.

…

13    Secondly, Sir Martin responded to Sir John’s letter in a letter dated 8 October 1976. It is also marked “Personal and Confidential” and, omitting formal parts, is in the following terms:

This letter is in reply to yours of 22nd September which, as you say, was of a different kind from our usual correspondence. I need hardly say that I hope most sincerely that you will live for many years but none the less it is obviously wise for you to make suitable arrangements for your papers and particularly those documents relevant to your Governor-Generalship.

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.

14    Thirdly, the then Prime Minister, Malcolm Fraser, wrote a letter dated 18 October 1977 to Sir John Kerr as Governor-General relating to a proposal to introduce archives legislation. The letter was tendered by Archives during the course of the hearing without objection and was added to the Joint Tender Bundle as Tab 15A. In light of the significance attached to the letter by Archives, it is convenient to set it out in full, omitting formal parts:

Ministers have under consideration introduction of an Archives Bill. The detail of this is set out in a Submission from the Minister for Administrative Services – Submission No. 1731. There will be reference to a Governor-General in the Bill and I write to inform you of this and to draw your attention to the general purport of the proposed legislation.

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.

15    Fourthly, by a letter dated 18 November 1977, the then Director-General of Australian Archives, Professor R G Neale, wrote to Mr David Smith in his capacity as Official Secretary to the Governor-General. Omitting formal parts, the letter is in the following terms:

This is just a short note to confirm the subject of our conversation last Tuesday morning.

On the question of the transfer of Sir John’s papers, as I remember it, it was agreed that both the originals and the copies of the papers would be transferred to the custody of the Australian Archives and that I would arrange for the copies to be forwarded by Foreign Affairs safe hand to a London address to be determined when Sir John has finalised his London arrangements. I am to wait upon your initiative in these things, you will let me know when you wish me to take custody of the papers and you will let me know when the copies should be despatched to London, the actual despatch I will arrange with Foreign Affairs. I would just add that I can guarantee the security and the privacy of the papers placed in the custody of the Archives.

I understood that Sir John is taking with him to London a collection of his non-sensitive personal papers and that there is no immediate intention to place these papers in the custody of the Archives.

I would hope that at some future date when Sir John no longer has any use for these papers, that they too could be placed in the custody of the Archives where they could be administered in relation to all other papers generated during Sir John’s incumbency of his present position.

The question of access. Given 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. I assume that any variation from these rules will be determined by discussions in London.

I would, however, like to stress one matter and that is, I suggest the desirability of Sir John making adequate and suitable provision for the disposition of the sensitive papers in case of death or incapacity. This applies particularly because Sir John will be retaining custody of the copies for some time. It might be possible, for example, if Sir John uses a bank vault for security deposit of these copies, that in case of death or incapacity, the papers should be either placed in the custody of or retained by the bank in order that they might be transferred securely into the custody of either the Australian Archives or the Royal Archives at Windsor. It would, of course, be preferable from the Australian point of view that the copies be returned to the Australian Archives rather than that they should be placed in the Royal Archives. This again could readily be arranged through the services of the couriers of the Department of Foreign Affairs.

I will take whatever action is necessary as soon as I hear from you on any of the above matters.

16    Fifthly, by a letter dated 23 December 1977 and written on Government House letterhead, Mr David Smith wrote to Sir John Kerr. He referred to an “accompanying box” which contained the “first two parts of the original file”. It is evident that Sir John was in London at the time (having ceased to be Governor-General on 8 December 1977). The letter describes Mr Smith’s activities in copying Sir John’s papers with a view to sending copies to Sir John in London. Omitting irrelevant parts, the handwritten letter stated:

The copying is taking longer than I expected, and hence the delay in getting this lot off to you. I can copy only at night, and not all have been available, as you will appreciate. The process is slowed down considerably by some of the larger news-paper cuttings on the file. I am dealing with these by making a series of copies of larger sheets, so that parts of the text are repeated on more than one page. At least this ensures that you get the full text. Where I have been unable to avoid doing it, I have had to resort to photo-reduction.

17    Sixthly, by a handwritten letter dated 3 June 1978, also written on Government House letterhead, Mr Smith wrote again to Sir John and informed him that “the task is done”. This is plainly a reference to the copying of Sir John’s papers. Mr Smith apologised for having underestimated the number of hours needed to “do the job”, as well as the number of free hours he had at the copying machine “when no-one else was about” and when he (Mr Smith) was in Canberra. At the end of the letter, Mr Smith wrote:

The 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, i.e. 60 years after you left office…

18    Seventhly, and significantly, by a letter dated 26 August 1978, also written on Government House letterhead, Mr Smith lodged a bundle of documents with Australian Archives. Omitting formal parts, his letter (which is referred to herein as the letter of deposit) stated:

This package contains the personal and confidential correspondence between the Right Honourable Sir John Kerr, A.K., G.C.M.G., G.C.V.O., K.St.J., Q.C., 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, i.e. 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.

19    Eighthly, by a letter dated 3 March 1980 and marked “Personal”, Sir John (who was in London at the time) wrote to Mr Smith on Sir John’s personal letterhead. His letter included the following paragraph:

I would also be grateful if you could let me know what the terms were upon which the Palace correspondence was lodged in the National Archives. I think you told me that it was upon the condition that they should not be opened for 60 years after I left office. I was over at the Palace the other day talking to Sir Philip Moore, and, in passing, he made the point that archives of this kind are regarded as being the property of the Queen and that there is no 60-year rule. They can never be opened to the public or to anyone without the Monarch’s approval. When you advise me of the basis of deposit with the National Archives, I shall tell Philip Moore the position, and it may be that some change in the instructions to the Archives may be necessary.

20    Ninthly, Mr Smith replied to Sir John in a letter dated 20 May 1980. The letter is marked “Personal”, and is written on Government House letterhead. Mr Smith set out the instructions which he had given to the Director-General of Australian Archives (as the institution was then known) when he lodged Sir John’s papers with him. Mr Smith confirmed that he had consulted with Sir Philip Moore before lodging the papers and stated that “the caveat” was a result of that consultation. Mr Smith’s letter also contained the following paragraphs:

As to the correspondence which you left behind after asking Michael Wilmot to pack those papers which you wished to take with you, they have remained as part of the official records of the Governor-General’s Office. At the present moment, they are still held here at Government House in our own file storage, but this is only because the Archives Office has asked all Commonwealth Departments and Authorities to hold their own archival material until the Archives Office gets its new building. Irrespective of where the papers are physically kept, they are now part of the official records of this office, and the Official Secretary of the day is responsible for their safe custody. The advice which I have received from Sir Geoffrey Yeend is that I have no authority to release these or any other papers from the official records.

Sir Geoffrey has explained to me that, in the case of former ministers who have left their official papers and correspondence in the custody of the Archives Office, there is an understanding that each former minister may be given access to his own former papers for the purposes of subsequent research and writing, in order to refresh his recollection, but that these papers may not be handed over to him.

21    Tenthly, by a letter dated 15 December 1983, the Acting Director-General of Australian Archives wrote to Sir John in London in response to a letter dated 10 November 1983 from Sir John. The subject of the correspondence, as raised by Sir John, was whether archival material in Sir John’s possession could be brought back to Australia from London at Commonwealth expense on the basis that it, or substantial parts of it, would then be available for Australian Archives. The following paragraph is included in the Acting Director-General’s letter (emphasis added):

In my view, it is important that such arrangements be made for its storage, preservation and accessibility as are appropriate to both the official and personal components. Of course, it will be necessary for any such arrangements to take account of the provisions of Archives legislation which was passed in October. Briefly, the position will be that all private and personal material including direct and personal correspondence with the Queen, is exempt from the provisions of the legislation. Any official material is subject to provisions covering disposal, access and storage.

Although the Act was passed in October 1983, it did not commence until 6 June 1984.

22    Eleventhly, it is evident that the 60 year embargo period referred to in the letter of deposit was subsequently reduced to 50 years following a decision by The Queen. By a letter dated 23 July 1991, the then Official Secretary to the Governor-General (Mr Douglas Sturkey) wrote to the Director-General of Archives and referred to “sealed packages”, which had been forwarded to Archives containing the personal and confidential correspondence of Sir Ninian Stephen, Sir Zelman Cowen and Sir John Kerr respectively with The Queen. The letter contained the following paragraphs:

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.

23    Twelfthly, shortly thereafter, the Director-General of Archives responded to Mr Sturkey’s letter dated 23 July 1991. He confirmed that the requirements regarding the “sealed packages” held by Archives of correspondence between the three Governors-General with The Queen would be observed. The letter included the following paragraphs:

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.

Records of Lord Casey, including those referred to above, were transferred to our office in Melbourne after the deaths of Lord and Lady Casey by his former secretary, in accordance with arrangements made with the Department of the Prime Minister and Cabinet. There are three folders (4.5 cm thick in total), held in secure storage, containing correspondence with The Queen or her Private Secretary. I am arranging for these to be sealed and brought to Canberra, and to have directions attached that the package should remain closed until after 30 April 2019 and that thereafter access should only be with the approval of the Sovereign’s Private Secretary and the Official Secretary to the Governor-General.

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.

24    As noted above, the applicant tendered, without objection, a Supplementary Tender Bundle in response to the tender by Archives of Prime Minister Fraser’s letter dated 18 October 1977 to Sir John Kerr (see [14] above). The key documents in the Supplementary Tender Bundle were as follows.

25    First, there is a letter dated 16 December 1974 written by Ms Patricia Daw, who was the Personal Assistant to Lady Hasluck, Sir Paul Hasluck’s wife. Ms Daw’s letter relates to Sir Paul’s papers between the period 1969-1974. They include a document signed by Sir Paul which described his papers as being collected in five separate groups. Group 1 is describes as follows:

Copies of despatches written by the Governor-General for the information of Her Majesty the Queen and the acknowledgments made of them by the Private Secretary to the Queen. The originals are now the property of the Queen and the permission of Her Majesty or Her successor has to be obtained before the documents can become public.

26    Secondly, the applicant tendered various Cabinet Minutes relating to the Archives Bill 1977. The Cabinet Minute dated 1 November 1977 attached a Submission from the then Minister for Administrative Services in respect of the Archives Bill 1977 (Submission no. 1731). That Submission stated that with respect to the majority of records in the custody of the Australian Archives, the Bill proposed to allow public access to be granted after a period of 30 years from when the record was created. The following exception was then noted in paragraph 5:

It was considered, however, that it would be inappropriate for some classes of records to be subject to these compulsory transfer and access provisions. The classes of records identified were those:

•    of the Governor-General or of a former Governor-General;

•    in the possession of the Senate, the House of Representatives or a Parliamentary Department;

•    in the possession of a Court or the registry of a Court;

•    of the Cabinet; and

•    of the Executive Council.

27    The Submission added that with respect to these classes of records, the Bill proposed that Australian Archives have authority to make arrangements with those persons controlling the custody of such records, to accept custody, and to administer the access rules determined between Australian Archives and the custodian of the records.

28    These proposals were reflected in cll 18 and 21 of the Archives Bill 1977, a copy of which was attached to the Cabinet Minute dated 1 November 1977.

Relevant statutory provisions summarised

(a) Some additional relevant legislative history to the Act

29    Before summarising the key relevant provisions of the Act, it is desirable to say something briefly about the legislative history. Prior to 1983, the Archives operated through administrative arrangements, or executive directions, of the Commonwealth and without any direct statutory underpinning.

30    The Archives Bill was introduced in the Commonwealth Parliament in 1978. The then Attorney-General, Senator Durack, made reference in the Explanatory Memorandum to that Bill to “special provision” having been made for the records of the Governor-General, the Parliament, the Courts, the Cabinet, the Federal Executive Council and Royal Commissions. He added that these records may be transferred to the custody of the Archives on terms and conditions agreed on by the Archives and the person responsible for the custody of the records.

31    This Bill was referred to the Senate Standing Committee on Constitutional and Legal Affairs (together with the then companion Freedom of Information Bill). In its report, the Committee noted at p 339 that there was a British practice that Royal documents were not made available until 60 years had elapsed since the documents were created. It added that this period may suggest the need for a special provision to be made in the legislation for a category of documents comprising correspondence between the Governor-General and The Queen. Otherwise, the Committee rejected the approach in the Archives Bill for addressing the records of the Governor-General.

32    An amended Bill, the Archives Bill 1981, was introduced after consideration of the Committee’s report. It was expressly provided in cl 18 that, subject to cl 21, the provisions in Pt V relating to dealings with Commonwealth records and access to Commonwealth records did not apply to the records of the Governor-General or a former Governor-General. Clause 21 provided for the making of regulations which could result in those provisions in Pt V applying to what otherwise would be exempt records, including records of the Governor-General or of a former Governor-General. The Bill also proposed that persons having control of exempt records could enter into arrangements with Archives to have or retain the custody of such records. During the Senate debate on that Bill, the opposition moved an amendment to subject all records of the Governor-General to the open access provisions and without there being any special provision for such records.

33    The applicant submitted there were some indications that the Government apparently supported the amendment. The basis for this submission is unclear. The Committee debate on the Archives Bill 1981 on 17 February 1982 contains the following relevant exchanges:

Senator DURACK –

…

I turn to the substance of the amendment moved by Senator Tate. The Bill as proposed proceeds on the basis that records of certain institutions will not be assigned to the Archives for custody purposes. The amendment proposes to extend the definition of a Commonwealth institution in a way which would cut across the policy which has been adopted by the Government. The intention has been that Executive Council records and records in relation to the Cabinet, the parliamentary departments and the courts generally would not be assigned to the custody of Archives. The reason for that is the special nature of such records. The records of the Executive Council and of the Governor-General are in a particularly sensitive and special category and arrangements have been in place for some time in relation to their custody. The United Kingdom Government and the Queen would have a very close interest in those records, and different arrangements are made in the United Kingdom from those made here. For instance, Palace records, I understand, have a closed access period of 60 years, not the 30 years under the arrangements here.

Senator TATE – We have made provision for that.

Senator DURACK – Yes, I know, but the Government does not agree with that provision. We would prefer to retain the present arrangements rather than have the regulation-making power which, I understand Senator Tate to say, a later amendment will give…

34    As it happened, the Archives Bill 1981 was not enacted. Following a change of government, in 1983, the new Attorney-General (Senator Evans), introduced a further Archives Bill which was ultimately passed in October 1983 and became the Act. As noted above, the Act commenced on 6 June 1984.

35    It is significant to note that, in his Second Reading Speech to the 1983 Archives Bill, the Attorney-General said (emphasis added):

The 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.

(Senate Hansard, 2 June 1983, p 1184).

36    It might also be noted that the Bill as introduced in the Parliament was amended by the insertion of what later became s 6(3). Section 6(3) provided that the provisions of Pt V of the Act applied to access to any record which is a “Commonwealth record” as defined in the Act, notwithstanding the terms of any private instrument of deposit under s 6(2). The Explanatory Memorandum to the Archives Bill 1983 stated at p 12 that the purpose of s 6(3) 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”.

(b) Key provisions of the Act summarised

37    The objects of the Act are set out in s 2A. They include providing for a National Archives of Australia, whose functions include “preserving and making publicly available the archival resources of the Commonwealth”.

38    It is relevant to note the following definitions in s 3(1) (all the definitions are subject to any contrary intention):

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

Commonwealth record means:

(a)    a record that is the property of the Commonwealth or of a Commonwealth institution; or

(b)    a record that is to be deemed to be a Commonwealth record by virtue of a regulation under subsection (6) or by virtue of section 22;

…

record means a document, or an object, in any form (including any electronic form) that is, or has been, kept by reason of:

(a)    any information or matter that it contains or that can be obtained from it; or

(b)    its connection with any event, person, circumstance or thing.

Note:    For the definition of document, see section 2B of the Acts Interpretation Act 1901.

39    The “open access period” in relation to a record, other than for a Cabinet notebook or a record containing Census information, is set out in s 3(7). In the case of a record which came into existence before 1980, the open access period is 1 January in the year that is 31 years after the creation year.

40    Archives is established under s 5, which provision also describes its functions. Subject to the Act, the functions relevantly include:

…

(e)    to have the care and management of Commonwealth records, other than current Commonwealth records, that:

(i)    are part of the archival resources of the Commonwealth; or

(ii)    ought to be examined to determine whether they are part of those archival resources; or

(iii)    are required to be preserved (other than permanently preserved); and

(f)    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; and

…

(j)    to make Commonwealth records available for public access in accordance with this Act and to take part in arrangements for other access to Commonwealth records; and

…

41    The powers of Archives are set out in s 6. Subsections 6(2) and (3) are both relevant to the proceeding:

…

(2)    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.

(3)    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.

42    Part V deals with Commonwealth records. Sections 18 and 19 provide that, subject to some exceptions, Divs 2 and 3 of Pt V do not apply to records in the possession of the Senate, the House of Representatives, a Parliamentary Department, or records in the possession of a court or a registry of a court. There is no similar express provision in relation to records in the possession of the Governor-General. Special provision is made in ss 22 and 22A for records of Royal Commissions and Cabinet notebooks.

43    As noted above, Div 3 of Pt V concerns access to Commonwealth records. It is relevant to note ss 31(1A), (1) and (2):

31    Records in open access period to be publicly available

(1A)    This section applies to a Commonwealth record that:

(a)    is in the open access period; and

(b)    is in the care of the Archives or in the custody of a Commonwealth institution; and

(c)    is not an exempt record.

(1)    Subject to this Part, the Archives must cause the record to be made available for public access.

Note:    Arrangements under section 64 for a person (other than the Archives) to have custody of a Commonwealth record must enable the Archives to meet its obligations under this subsection.

(2)    If the record is in the custody of a Commonwealth institution, the institution must make such arrangements with the Archives as will enable the Archives to meet its obligations under subsection (1) in relation to the record.

Note:    If the record is material of the Archives, the arrangements referred to in subsection (2) must be included in the arrangements under section 64 for the Commonwealth institution to have custody of the record.

…

44    Section 33 describes what are “exempt records”. They include a Commonwealth record if it contains information or matter the disclosure of which under the Act would constitute a breach of confidence (s 33(1)(d)), as well as information or matter the disclosure of which under the Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person) (s 33(1)(g)). Furthermore, it is provided in s 33(2) that a Commonwealth record is an exempt record if it is of such a nature that disclosure of the record would be contrary to the public interest.

45    Section 36 deals with forms of access and provides as follows:

36     Forms of access

(1)    Where the Archives is required by this Part to cause a record to be made available for public access, any person is, subject to this Part, entitled to access to the record.

…

46    Section 40 deals with notification of decisions in respect of applications for access.

47    Division 4 deals with review of decisions, both by way of an internal reconsideration by Archives and by the AAT. As noted above, the parties agree that there is no right of review by the AAT in respect of the documents here.

48    Section 70 contains transitional provisions. It provides as follows:

70    Transitional

(1)    A reference in any law of the Commonwealth or of a Territory, or in any agreement or arrangement, made before the commencement of Part II, to the Commonwealth Archives Office, to the Archival Authority or to the authority concerned with the preservation of the archives shall, in respect of any time after the commencement of Part II, be read as a reference to the Archives.

(2)    Notwithstanding Part II, arrangements in operation immediately before the commencement of Part II relating to the disposal or custody of Commonwealth records may continue in operation until the Director-General otherwise directs.

(3)    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.

Submissions

(a) Applicant’s submissions summarised

49    The applicant submitted that the reference to “Commonwealth record” in s 31(1A) of the Act is a jurisdictional fact upon which the duty in s 31(1) and the correlative right in s 36(1) depend. This was not disputed by Archives. I will proceed on that basis.

50    The applicant identified the following three remaining issues for determination:

(a)    Are records of the Governor-General which are “Commonwealth records” within the meaning of the Act limited to administrative records of the official establishment of the Governor-General?

(b)    Is one or more of the records constituting AA1984/609 a “Commonwealth record”?

(c)    In the alternative to question (b), did Archives exceed its jurisdiction by reasoning that AA1984/609 did not contain “Commonwealth records” because it was not the property of the official establishment of the Governor-General?

51    The applicant submitted that the matters relevant to statutory construction in this case included the following:

    “Commonwealth record” is relevantly defined in s 3 to mean a record that is the property of the Commonwealth or of a Commonwealth institution;

    the definition of “record” in s 3 focuses upon the physical object, being a document for example, as opposed to the information which is recorded;

    “Commonwealth institution” is defined relevantly in s 3 to include the official establishment of the Governor-General, as well as other bodies such as the Executive Council and a Federal court. The notion of a “Commonwealth institution” is relevant to the operation of duties etc created by Div 2 of Pt V of the Act;

    because a body such as the official establishment of the Governor-General cannot own property, if a record is the property of the Commonwealth, it is a “Commonwealth record” irrespective of whether it is also the property of a Commonwealth institution.

52    The applicant submitted that it is no part of the function of the Governor-General to act as a delegate or agent of The Queen; rather ss 2 and 61 of the Constitution confer Vice-Regal status. The applicant relied upon the record of proceedings of the 1926 and 1930 Imperial Conferences in support of her submission that:

(a)    the form, content of and participants in communications with The Queen concerning the government of Australia have been regarded, by no later than 1930, as matters to be determined by the government of the Commonwealth of Australia; and

(b)    communications with The Queen concerning the appointment of a Governor-General (and his or her recall) are matters which the government of the Commonwealth of Australia agreed with other imperial governments were to be the subject of communication between The Queen and the Australian Prime Minister.

53    The applicant described AA1984/609 as involving various parts, consisting of the originals of letters and telegrams and certain attachments received by, and contemporaneously made copies of correspondence sent by, Sir John Kerr or his Official Secretary to and from The Queen by means of her Private Secretary between 1974 and 1977. The applicant submitted that the practice of providing periodical briefings to The Queen was viewed by Sir John as a duty of his office as Governor-General. She submitted that both Sir John and his Official Secretary, Mr David Smith, regarded the correspondence as official, not personal.

54    The applicant contended that the following inferences could be drawn from the limited evidence before the Court regarding the contents of the records comprising AA1984/609:

(a)    Sir John’s letters to The Queen constituted a regular reporting by him of events of his Governor-Generalship;

(b)    included in the bundle is a letter dated October 1975 from The Queen’s Private Secretary (Sir Martin Charteris) to Sir John concerning the approach which The Queen would take in the event that she were advised by her Australian Prime Minister to recall Sir John;

(c)    the bundle included a letter from Sir John to The Queen in which he reported that Prime Minister Whitlam had raised with both Sir John and the visiting Prime Minister of Malaysia the prospect that Prime Minister Whitlam would advise The Queen to recall Sir John;

(d)    the bundle included another letter from Sir John to The Queen in which he recounted his recollection about a discussion he had with Prime Minister Whitlam which resulted in the termination of Mr Whitlam’s commission; and

(e)    the bundle also included detailed reports of what happened with respect to the supply crisis of 1975.

55    The applicant submitted that the Court should find that the documents in AA1984/609 are solely concerned with the government of the Commonwealth and include communications concerning the possible recall of the Governor-General and advice from the Prime Minister concerning those matters.

56    The applicant’s core submission was that communications by Constitutional office-holders and the performance of their office concerning the government of the Commonwealth are communications engaged in for the purpose of the body politic and belong to the Commonwealth as a body politic. In other words, any such written communications are Commonwealth property.

57    The applicant highlighted the history of the lodgement of Sir John’s papers with Australian Archives. Some of these actions occurred prior to the commencement of the Act. There was an arrangement that all of Sir John’s papers would be lodged with the then Australian Archives and, presumably, be administered in accordance with the official policy relating to such papers. At Sir John’s request, Mr Smith made copies of the Palace letters and sent them to Sir John in London. The documents comprising AA1984/609 were lodged with Australian Archives by Mr Smith under cover of a letter dated 26 August 1978, i.e. prior to the commencement of the Act (see [18] above).

58    The applicant emphasised that Mr Smith did not assert that the documents were the property of any person other than the Commonwealth. In the letter of deposit, Mr Smith described the package as containing the “personal and confidential correspondence” between Sir John and The Queen. He stated that Sir John’s instructions and The Queen’s wishes were that the papers were to remain closed for 60 years and that access should be given after that time only after consultation with The Queen’s Private Secretary and the serving Governor-General’s Official Secretary. The applicant submitted that Sir John only learned of the last condition in February 1980. She submitted that Mr Smith imposed the condition and exercised a property right in the material.

59    The applicant submitted that through the then Secretary of the Department of Prime Minister and Cabinet (Sir Geoffrey Yeend), the Commonwealth also asserted Commonwealth ownership in other correspondence of Sir John, which is reflected in Mr Smith’s letter dated 20 May 1980 (see [20] above). Post the 20 May 1980 letter, Commonwealth officials considered that all records of Sir John’s time as Governor-General should be lodged with Australian Archives. On 10 November 1983, Sir John offered to lodge 9 cartons (later revised to 11 cartons) of papers with Australian Archives. Sir John said in a letter dated 7 February 1984 that noone but himself or an authorised person should have access to those papers. The 11 cartons were sent to Australian Archives but when Sir John learned on 8 August 1984 that the Act (which had only just recently commenced) applied to any Commonwealth records among his papers, he progressively withdrew many of the cartons until, by 15 April 1987, only one remained. Ultimately it too was removed and returned to Sir John’s Private Secretary shortly after his death in 1991. These cartons do not include the records which are the subject of these proceedings. The applicant submitted, however, that the history of the 11 cartons suggests that they were owned by Sir John and that it should be inferred that he did not consider that he could withdraw AA1984/609.

60    The reduction of the embargo period from 60 to 50 years is explained in a letter dated 23 July 1991 (see [22] above). The letter was written by the then Official Secretary to the Governor-General. As noted above, the reduction resulted from a decision made by The Queen. The applicant submitted that the Official Secretary was exercising a property right in AA1984/609 in implementing this change.

61    In support of her alternative case, the applicant challenged Archives’ view that the Act only applies to records that form part of the official establishment of the Governor-General. The applicant submitted that Archives applied the wrong test because the question of whether a document is the property of the Commonwealth is not answered by whether it is either a personal and confidential communication or a formal official communication. Accordingly, the applicant submitted that the statement of reasons given by Archives indicated that it had exceeded its jurisdiction.

62    As noted above, the applicant tendered without objection the Supplementary Tender Bundle. It included a copy of a Cabinet Minute relating to the draft Archives Bill in October 1977. It was submitted that the material indicated that there was an assumption that the records of former Governors-General were Commonwealth records (see [26] above). The applicant submitted that this is what Prime Minister Fraser had in mind when he wrote his letter to Sir John (see [14] above).

63    Mr A P Whitlam QC, who appeared with Mr T Brennan for the applicant, submitted that, on the approach of Archives, unintended and unacceptable consequences would flow. This was because, if the correspondence between the Governor-General and The Queen remained the property of the Governor-General or the beneficiaries of his or her estate, this would mean that, in the case of Sir John Kerr, his executrix would be entitled to ask for the official records to be returned to her as the estate’s property and that she could do with them whatever she wished, including selling them at auction.

(b) Archives’ submissions summarised

64    Archives made the following core submissions:

(a)    The relevant records are not the property of either a “Commonwealth institution” or the “Commonwealth” under general law, but rather are the personal property of Sir John. It is unnecessary to determine what proprietary interests The Queen has in the records if the Court accepts that the records are the property of Sir John and are not Commonwealth records. If the records are found to be the property of the official establishment of the Governor-General, an issue would arise as to whether they are also jointly owned with The Queen.

(b)    The text, context (including relevant conventions) and the legislative history of the Act show that it was never intended that personal and private correspondence between the Governor-General and The Queen would fall within the definition of a Commonwealth record.

(c)    The relevant records are held by Archives pursuant to an arrangement under ss 5(2)(f), 6(1)(c) and 6(2) of the Act, which arrangement is based upon the records being Sir John’s personal property. Although the records were lodged with Archives before the Act commenced, Sir John’s arrangement is covered by s 6(2) by reason of the transitional provisions in s 70(3).

(d)    For these reasons, the records are not “Commonwealth records” and are not subject to the access provisions under Div 3 of Pt V. Instead, access is determined by the terms of the letter of deposit.

65    On the proper construction of the Act, Archives emphasised a property-based approach to the definition of “Commonwealth records”. Archives submitted that it was not intended that the Act would apply to records not owned by the Commonwealth, or a Commonwealth institution, under the general law. Accordingly, the existence of property rights in a record by a person or an entity other than the Commonwealth, or a Commonwealth institution, meant that the record is not a Commonwealth record within the statutory definition, so Archives submitted.

66    On the meaning of the term “official establishment of the Governor-General”, Archives emphasised that there is no definition of that concept in the Act, nor is that a phrase employed elsewhere in Commonwealth legislation, including the Governor-General Act 1974 (Cth) (Governor-General Act). Archives submitted that the expression refers to persons who assist and support the Governor-General’s performance of official duties, i.e. the Official Secretary and his or her staff. This aligns the expression with the cognate expression “the Vice-Regal establishment”, as referred to in Peter Boyce’s text, The Queen’s Other Realms, Federation Press, 2008 at pp 140-141 and 184-185. Prior to amendments to the Governor-General Act in 1984, the Official Secretary had been an officer of the Australian Public Service seconded to the Governor-General's staff from the Department of the Prime Minister and Cabinet. Further amendments in 1999 created the Office of the Official Secretary to the Governor-General, which has the task of assisting the Governor-General under s 6(3). The nature of that “assistance” was discussed by the High Court in Kline v Official Secretary to the Governor-General [2013] HCA 52; 249 CLR 645 (Kline) at [13]. Archives submitted that the reasoning in Kline does not support the proposition that non-official records of personal and private correspondence between the Governor-General and The Queen are the property of the official establishment of the Governor-General. I will return below to discuss Kline noting, however, that it related to the proper construction of different legislation.

67    In any event, Archives submitted that the Governor-General is not relevantly a “Commonwealth institution” and that the Act treats the Governor-General as different from the Commonwealth and other organs of government which are included in the term “Commonwealth institution”. Archives submitted that the correspondence did not involve the exercise of the executive power of the Commonwealth by Sir John under s 61 of the Constitution, but rather involved Sir John acting personally and privately.

68    Mr T Howe QC, who appeared with Mr C Lenehan and Ms D Tucker for Archives, took the Court to extensive material relating to the practices of previous Governors-General concerning personal correspondence between the Vice-Regal and The Queen.

69    The excursus started with Lord Stonehaven, who was Governor-General from 1923 to 1930. He took his personal correspondence with him and it was tracked down by the National Library in 1968. At that time Archives was part of the Department of Prime Minister and Cabinet. Archives pointed out that the tracking down was done not by its predecessor (Australian Archives), but by the National Library. The documents were in the possession of Lord Stonehaven’s son. The correspondence was treated as the personal property of the Governor-General, so Archives submitted.

70    There were seven Governors-General in the period 1930-1965. The Court was asked to infer that each would have periodically briefed The Queen. Archives holds no records of any of these seven Governors-General. Thus Archives contended that it should be inferred that such correspondence was not regarded as Commonwealth records.

71    Lord Casey was Governor-General from 1965 to 1969. Archives submitted that it may be inferred that Lord Casey took his papers with him at the end of his term as Governor-General and that his property then passed to his widow when he died. Lady Casey died in 1983. Although the precise date is unclear, Lord Casey’s former secretary lodged Lord Casey’s papers with Archives, presumably prior to 1991 and after the Act commenced. Archives contended that the express reference to the 60 year period in the instrument of deposit suggests that it was considered at the time that Lord Casey’s papers were not Commonwealth records, otherwise the 30 year rule would have applied. Archives also emphasised that the Department of Prime Minister and Cabinet did not oppose the 60 year period being part of the arrangement under which Lord Casey’s papers were handed to Archives.

72    Archives submitted that it was significant that a similar approach was taken by Sir Paul Hasluck, as is reflected in the arrangements of deposit of his papers and the distinction which was drawn there between the 30 and 60 year periods. Sir Paul lodged a locked case which contained three categories of documents. The first category was described as Royal correspondence. Under the arrangement, this category attracted a 60 year period, as opposed to the 30 year period for the other categories, which were apparently regarded as Commonwealth records.

73    There was a meeting between Sir Paul Hasluck and the Director-General of Archives on 4 November 1986, which is approximately two years after the Act had commenced. Archives submitted that the Director-General’s letter dated 6 November 1986 makes clear that Sir Paul viewed the Royal correspondence as not being a Commonwealth record nor the property of the official establishment of the Governor-General. The instrument of deposit concerning Sir Paul’s records expressly distinguishes between the 30 year and 60 year constraints. There is a reference in the schedule to the instrument of deposit to the “sealed briefcase of papers”.

74    Archives submitted that this material is relevant to the issue of the state of mind of the particular individuals involved, who regarded the relevant material as the personal property of the relevant Governor-General, and not the property of either the Commonwealth or the successor Governor-General. Emphasis was placed on the fact that Sir Paul was the immediate predecessor to Sir John, that he had a particular interest in the subject matter of archives, was viewed as an expert in the area, and that he considered Royal correspondence to be his personal correspondence. Reference was also made to a lecture given by Sir Paul in 1972, which was later published in 1979, with particular reference to Sir Paul’s statement concerning the strictly confidential nature of his notes of conversations with the Prime Minister. It was submitted that it should be inferred that Sir Paul held the same view in respect of his communications with The Queen.

75    As to the papers in AA1984/609, Archives submitted that the Court should find that the material was provided by Mr David Smith, acting in his official capacity as Official Secretary, but also as agent of Sir John. Emphasis was placed on the fact that the materials were not lodged by Sir Zelman Cowen, who was Sir John’s successor as Governor-General when Mr Smith provided the papers to Archives.

76    Archives drew attention to the different approach which was taken concerning correspondence to and from a Governor-General with persons other than The Queen. This was said to be reflected in Sir John’s letter dated 3 March 1980 (see [19] above) and Mr Smith’s reply (see [20] above).

77    Archives relied on the approach taken by Sir Zelman Cowen, as is reflected in a letter dated 14 June 1984 and written by Mr Smith as Official Secretary to the Governor-General, i.e. 8 days after the Act commenced and two years after Sir Zelman had finished his term as Governor-General. That letter is a letter of deposit with Archives of what is described as “personal and confidential correspondence” between Sir Zelman and The Queen. The letter of deposit contained, in substance, the same two paragraphs as in the second and third paragraphs of the letter of deposit dated 26 August 1978 in respect of Sir John’s papers (see [18] above).

78    Archives submitted that there was no evidence to suggest that any Governor-General after Sir Ninian Stephen (1982-1989) lodged any Royal correspondence with Archives. Sir Ninian’s correspondence with The Queen was lodged under an arrangement made pursuant to s 6(2) of the Act and was not viewed as Commonwealth records. Archives also referred to the current view in the United Kingdom that such material is not caught by the Act.

79    As to the relevance of Senator Evans’ statement in the Second Reading Speech to the 1983 Archives Bill that the Bill did not apply to the Governor-General’s “private or personal records”, Archives submitted that this should not be read narrowly as referring only to entirely personal matters like birthday cards, bank statements etc.

80    Summing up, Archives’ primary submissions were as follows:

    the Vice-Regal correspondence with the Crown is highly sensitive and unique in character;

    consideration has to be given to the fact that there is counterpart correspondence in the United Kingdom, where such correspondence is closely protected. It should not be assumed that the Australian Parliament would have intended to disturb that state of affairs or create an inconsistency between the position in the two countries;

    the notion of the correspondence being totally confidential and not the property of the Commonwealth is consistent with convention;

    all interested persons viewed such correspondence as the personal property of the Governor-General, namely the various Governors-General themselves, Buckingham Palace, the official establishment of the Governor-General and the Commonwealth itself; and

    under general property law, the correspondence cannot be regarded as the property of the Commonwealth. The 1977 Archives Bill was subsequently changed so as to distinguish between the Governor-General and the official establishment of the Governor-General. If there was any intention to change the common understanding, there would have been clearer language or some reference in the extrinsic materials.

81    Mr Howe QC submitted that the presumption of regularity applied so that, in the absence of evidence to the contrary, it should be presumed that the relevant various Directors-General had authority to enter into the arrangements with various Governors-General concerning the custody of correspondence to and from the Palace. Mr Howe QC then went a step further and submitted that it should be presumed that the Director-General was satisfied that none of the correspondence in AA1984/609 was a “Commonwealth record” when custody was accepted in August 1978.

82    Finally, Mr Howe QC submitted that, in briefing The Queen in writing, the Governor-General was not exercising the powers in s 61 of the Constitution, but was rather acting in his in personam capacity and dealing with his property, possibly in common with The Queen who may also have a proprietary interest.

(c) Applicant’s submissions in reply summarised

83    The applicant filed two written submissions in reply. They may be summarised as follows.

84    The applicant challenged Archives’ approach to the proper construction of the definition of “Commonwealth record” in s 3 of the Act and, in particular, the emphasis it placed upon the definition of the concept of “property”, with the consequential effect that the definition “Commonwealth institution” must refer to institutions that hold property. The applicant submitted the relevant provisions operated by reference to both ownership and provenance.

85    The applicant submitted that Archives also erred in suggesting that if a person has a right to enforce an obligation of confidence in respect of information contained in a record, that person thereby has a property interest in the record. The applicant emphasised the need to distinguish between the physical object which is a record, as opposed to the information which it contains.

86    The applicant challenged Archives’ submission that it was relevant to take into account the convention that communications between The Queen and the Governor-General were confidential. The applicant submitted that the convention was obscure and was inappropriate to create inter partes rights and obligations or to assist in statutory construction.

87    The applicant submitted that Mr David Smith lodged AA1984/609 with Australian Archives in his capacity as Official Secretary to the Governor-General and that this arrangement was outside the scope of ss 6(2) and 70(3).

88    The applicant’s second set of written submissions in reply addressed the documents in the Supplementary Tender Bundle. The documents were relied upon by the applicant as providing historical context for the drawing of any inferences concerning the wishes, understandings or expectations of persons concerning documents of former Governors-General. While accepting that when the Act was enacted there undoubtedly existed an official establishment of the Governor-General, headed by the Official Secretary, and constituted by Government House staff answerable to the Official Secretary, the applicant submitted that there was serious doubt whether any departing Governor-General before Sir Paul Hasluck would have considered the Official Secretary to be a suitable repository for important official documents.

89    The applicant submitted that there were no records of any Governor-General in Archives prior to Lord Casey and that the records of six earlier Governors-General were held by the National Library. The applicant challenged Archives’ position regarding Lord Stonehaven’s papers in the absence of any evidence that the papers came to his son by way of testamentary disposition. Rather, the applicant submitted that significance should attach to the absence in Australia of any official archives repository at that time.

90    Submissions were also made by the applicant in respect of the documents of Lord Casey and Sir Paul Hasluck. As to the latter, the applicants submitted that Sir Paul made no claim to ownership of Palace correspondence and said that the originals were the property of The Queen and her permission had to be obtained for them to be made public. In contrast, Sir Paul claimed a personal property interest in category 2 documents in the sealed briefcase.

91    The applicant contended that the correspondence between Sir John and Sir Martin Charteris in 1976 supported her submission that Sir John perceived the Palace letters to be public property and subject to governmental control, and that Buckingham Palace was the governmental institution with authority to exercise that control. It was also said that Sir John was wrong to assert that previous Governors-General had taken copies of the correspondence to and from The Queen with them, referring to Sir Paul Hasluck’s lodgement of the documents in category number 1 in the locked briefcase.

92    The applicant emphasised the policy which was agreed between Professor Neale and Mr David Smith in November 1977.

93    The applicant submitted that subsequent dealings with Sir John’s records are consistent with the Commonwealth (through Sir Geoffrey Yeend) and Mr Smith regarding correspondence left by Sir John with the Official Secretary as forming part of the official records of the Governor-General’s office.

94    The applicant also made submissions concerning the subsequent dealings with the records of other Governors-General, including Sir Paul Hasluck, Sir Zelman Cowen and Sir Ninian Stephen.

95    The applicant addressed the issue of whether there is a general law principle which establishes that correspondence generated by a Governor-General in the performance of his or her office is owned by the Commonwealth and not the Governor-General personally. It was stated that there is no authority in either Australia or Britain which is directly on point.

96    The applicant was critical of Archives’ reliance of principles of agency in the context of the contention that the Act should be construed to exclude from the scope of Commonwealth records any records created or received by public officers in the performance of their office unless they were acting as an agent or employee of the Commonwealth or a Commonwealth institution in creating or receiving the record. In particular, the applicant contended that documents generated or received by the Governor-General in the performance of his or her office are owned by the Commonwealth, noting that the Governor-General is a public officer.

97    In his final oral reply, Mr Whitlam QC emphasised the need for caution in drawing too much from the practices of Governors-General in Australia who were British. He emphasised that merely because correspondence is sensitive and personal in nature does not mean that it ceases to be a Commonwealth record. He drew attention to [10] of the agreed statement of facts. He submitted that the reference to “arrangements” in Prime Minister Fraser’s letter dated 18 October 1977 simply reflected the intended position at that time by reference to cl 21 of the 1977 Archives Bill, but the scheme then changed when the Act commenced.

98    As noted above, Mr Whitlam QC contended that the consequence of acceptance of Archives’ construction would be that the executrix could now assert property rights in respect of the correspondence which had been lodged by Mr David Smith on Sir John’s behalf.

Analysis

99    It is convenient to address the dispute between the parties by reference to the broad framework provided by the three issues identified by the applicant as requiring resolution, as set out in [50] above.

(a) Are records of the Governor-General which are “Commonwealth records” within the meaning of the Act limited to administrative records of the official establishment of the Governor-General?

100    The terms of this question present several difficulties, which largely arise from the high level of generality at which the question is expressed. It is predicated on a broad assumption that at least some records of the Governor-General (apart from administrative records of the official establishment of the Governor-General) are in fact “Commonwealth records” without any clear description of what particular records of the Governor-General fit that description, or why they are properly viewed as “Commonwealth records”. Nor does the question reveal what is meant by the phrase “administrative records” of the official establishment of the Governor-General, noting that this phrase does not appear in the Act. I think it best to defer further consideration and determination of the first question until after the second question. The second question does not suffer from the kinds of difficulties presented by the broad and unparticularised terms in which the first question is expressed. Resolution of the second question also has implications for the first question.

(b) Is one or more of the records constituting AA1984/609 a “Commonwealth record”?

101    Whether one or more of the records comprising AA1984/609 is a “Commonwealth record” within the meaning of the Act turns on whether any such record is the “property” of either the Commonwealth or “the official establishment of the Governor-General”. As noted above, the records comprising AA1984/609 were not put before the Court. Accordingly, the question must be answered on the assumption that all the records in that bundle are correspondence in the form of letters or telegrams between Sir John Kerr acting in his capacity as Governor-General and The Queen (including through Her Majesty’s Private Secretary), while noting that it is also the agreed position of the parties that some of the correspondence had attachments, such as newspaper clippings (see sub-paragraphs [7] and [8] in [9] above).

102    The term “property” is not defined in the Act. As Archives pointed out, the adoption in the Act of a property-based definition, as opposed to one based on provenance, appears to be deliberate. In its report entitled Australia’s Federal Record: A Review of the Archives Act 1983 [1998] ALRC 85, the Australian Law Reform Commission (ALRC) noted at [8.13] that the drafting history of proposed legislation relating to archives between 1974 to 1983 reflected a shift from an “administrative provenance definition” to a property-based definition. The ALRC observed that, following the drafting of the 1974 Archives Bill (which contained a provenance-based definition), successive drafts of the proposed legislation in 1974-1975 “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”.

103    Although it is unnecessary for the purposes of this proceeding to attempt an exhaustive meaning of the word “property”, I accept Archives’ submission that the reference to “property of” in the definition of “Commonwealth record” picks up the concept of ownership as ordinarily understood under the general law. This view is supported by the following relevant features of the Act.

104    First, the Act itself differentiates between concepts of “possession” (see ss 18-20); “custody” (s 21); “access” (ss 28 and 31) and the concept of “property” in the definition of “Commonwealth record” in s 3(1).

105    Secondly, a construction of the Act which would have it apply to records which were not owned under the general law by the Commonwealth or by a Commonwealth institution would give rise to serious intrusions upon fundamental property rights. For example, Archives is authorised to dispose of or destroy “Commonwealth records” under s 6(1)(h).

106    Thirdly, it is significant that the Act does not contain a provision for just compensation in respect of any acquisition of property, which may suggest that the Act authorises no interference with the property rights of persons other than the Commonwealth or a Commonwealth institution.

107    For the following reasons, I find that, at all relevant times, the documents comprising AA1984/609 were the personal property of Sir John Kerr and were not the property of the Commonwealth (I will defer for the moment the alternative case as advanced by the applicant that the documents are the property of the official establishment of the Governor-General).

108    First, Sir John considered that he, personally, owned the records, as is reflected in his letter dated 22 September 1976 to Sir Martin Charteris (see [12] above). This letter contains expressions such as “my will”, “my papers” (which appear twice), “my other papers”, “papers which are exclusively mine”, “if I were to die”, “I would not wish to leave this correspondence in Government House. Each Governor-General takes with him such material”, “your records” (referring to The Queen's counterpart records) and “allow [the material] to go into the custody of my literary editors” on certain specified conditions. These expressions strongly suggest that Sir John regarded the correspondence to and from the Palace to be his personal property and which were to be dealt with in accordance with his instructions, including by way of testamentary disposition if not disposed of before his death. Sir John’s view that the papers were his personal property is further reflected in the fact that, in his letter dated 3 March 1980 to Mr Smith, Sir John foreshadowed the possibility that there might need to be “some change in the instructions to the Archives” regarding the Palace correspondence.

109    Secondly, Sir John chose to consult The Queen in order to ascertain Her wishes as to his disposition of the Palace correspondence kept by him, and in which The Queen had a reciprocal interest because Her Majesty was a party to that correspondence.

110    Thirdly, The Queen also appears to have considered that the subject records were owned by Sir John and were amenable to disposition in accordance with his instructions, including by way of testamentary disposition. In the letter dated 8 October 1976 from The Queen’s Private Secretary to Sir John (see [13] above), there are references to “your papers” in each of the 4 paragraphs of that letter. I also consider that the reference in that letter to the first Lord Stonehaven’s son offering to hand over the former Governor-General’s papers is an indication that the son had succeeded to ownership of those papers upon his father’s death.

111    Fourthly, after consultation with The Queen (through her Private Secretary), it was Sir John’s decision to place the correspondence to and from the Palace in the custody of Australian Archives. This was done against a background of the advice he had received regarding the disposal of these and other papers relating to his time as Governor-General.

112    Fifthly, the caveat in the final paragraph of the letter of deposit regarding consultation even after 60 years had lapsed was added by Mr Smith after he had consulted with Sir Philip Moore, The Queen’s Private Secretary at the time. Sir John Kerr was advised of the addition of the caveat in Mr Smith’s letter dated 20 May 1980 to him (see [20] above). This is not inconsistent with Sir John viewing these papers as his personal property, notwithstanding that he recognised that The Queen also had a strong and particular interest in them.

113    Sixthly, the Commonwealth, through the then Director-General of Archives, recognised that the subject records were Sir John’s personal property, as is reflected in the correspondence set out in [15] above and the references therein to “Sir John's papers”; “his non-sensitive personal papers” (which the Director-General considered should also be placed the custody of Australian Archives), and the reference to the “desirability of Sir John making adequate and suitable provision for the disposition of the sensitive papers in case of death or incapacity”. These references indicate an acceptance by Australian Archives of Sir John's ownership and complete powers of disposition in respect of the “sensitive papers”.

114    Seventhly, the circumstances surrounding the copying of Sir John’s papers by Mr Smith at Sir John’s request, and the subsequent provision of those copies to Sir John, are also consistent with Sir John’s ownership. Although 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.

115    Eighthly, the records in AA1984/609 were dealt with differently from other forms of correspondence sent to and from Sir John after the events of 11 November 1975 and while he was still Governor-General. It is evident from Mr Smith’s letter dated 20 May 1980 to Sir John that a particular view was taken in respect of certain correspondence to and from the Governor-General with persons other than The Queen. Mr Smith described such records as “part of the official records of the Governor-General’s Office”. He said that, in his capacity as Official Secretary of the day, he had responsibility for the safe custody of such documents. Mr Smith also referred to advice he had received from Sir Geoffrey Yeend that Mr Smith had “no authority to release these or any other papers from the official records” (see [20] above).

116    Ninthly, the passing of ownership of M4513 in accordance with the terms of Sir John's will, the ultimate disposition of those records by the executrix of Lady Kerr’s estate (Ms Bashford), and correspondence passing between Ms Bashford and the Archives concerning that disposition (which make repeated reference to Sir John's “personal papers”, “Sir John's papers”, and “Sir John's material”), reflect a shared recognition of Sir John's original ownership of those records.

117    Tenthly, the following material supports the view that, conventionally, correspondence between a Governor-General and The Queen has been regarded as unique and does not give rise to a property interest on the part of the Commonwealth:

(a)    this view was taken with respect to personal and confidential correspondence passing between The Queen and Lord Stonehaven, who was Governor-General between 1925-1930;

(b)    the same view was taken with respect to personal and confidential correspondence passing between The Queen and Lord Casey when he was Governor-General from 1965-1969;

(c)    the same view was taken with respect to personal and confidential despatches between Sir Paul Hasluck and The Queen or her Private Secretary, as is recorded in a letter dated 6 November 1986 to Sir Paul from the then Director-General of Archives (Mr B Cox);

(d)    Sir John advised The Queen in 1976 that “Each Governor-General takes with him such material”. That is persuasive contemporary evidence of an established practice, as at 1976, which is redolent of ownership;

(e)    Sir John's asserted ownership of the subject records in 1976 appears to have been accepted by The Queen (see the letter to Sir John from Sir Martin Charteris at [13] above) and the Commonwealth itself, acting through the Director-General of Archives (see Professor Neale’s letter dated 18 November 1977 to Mr Smith at [15] above);

(f)    the same view was taken with respect to the personal and confidential correspondence passing between The Queen and Sir Zelman Cowen (Sir John's successor) from 1977-1982 (see the references in the correspondence summarised at [22] above); and

(g)    the same view was taken with respect to the personal and confidential correspondence passing between The Queen and Sir Ninian Stephen (Sir Zelman's successor) from 1982-1989 (see the summary of the letter dated 23 July 1991 at [22] above) and the letter of deposit dated 31 August 1990 relating to Sir Ninian’s papers, which included “personal and confidential correspondence with Buckingham Palace during Sir Ninian’s term of office as Governor-General of Australia”. There is an express statement in that letter of deposit that the records were being lodged with Archives under special arrangements in accordance with s 6(2) of the Act.

118    Finally, although not determinative of the issues of statutory construction, it is relevant to note that the construction advanced by Archives produces an outcome which is broadly consistent with the special archival arrangements concerning Royal correspondence in the United Kingdom. In that jurisdiction, such correspondence, together with other private and personal records of The Queen, are housed in the Royal Archives. Access to them is governed by specific agreements. The Freedom of Information Act 2000 (UK) does not apply to such records. Of course, the relevant provisions of the Act in Australia must be construed in accordance with well settled principles guiding the task of statutory construction and not with a view to reflecting the position in the United Kingdom. Having said that, however, recognising that both The Queen and the Governor-General have a mutual interest in the ownership and disposal of their personal correspondence and also having regard to the conventions described above, clear and explicit language would be required to produce an outcome which involved significantly different rules of access applying to such correspondence in the two jurisdictions. For the reasons given above, on its proper construction, the Act produces similar outcomes in the two jurisdictions.

119    I do not accept the applicant’s core submission to the effect that the correspondence comprising AA1984/609 should be viewed as the property of the Commonwealth simply because its subject matter relates to the performance of the Governor-General’s role and function. First, in my respectful view, that submission adopts an unduly broadbrush approach to the role and responsibilities of the Governor-General. The position of the Governor-General involves the exercise of a wide range of powers and functions, some of which involve conduct and actions taken other than on the advice of the Prime Minister, a Minister or the Executive Council. Notably, in Kline, the plurality drew attention to some of the unique features of the role of Governor-General when their Honours said at [38]:

38.    The Governor-General, in common with judges, takes an oath to undertake his or her functions without fear or favour. However, as mentioned, the position of the Governor-General calls for the exercise of a multiplicity of powers and functions, many (but not all) of which are undertaken in public, and some (but few) of which involve making decisions other than on the advice of a Minister or the Executive Council.

120    Secondly, I accept Archives’ submission that the personal and private correspondence between a Governor-General and The Queen does not involve the Governor-General exercising the executive power of the Commonwealth within the meaning of s 61 of the Constitution. For the reasons given above, that correspondence has a strong sui generis quality which places it apart from much of the other correspondence sent or received by a Governor-General.

121    Thirdly, I do not consider that resolution of the issues in these proceedings is assisted by reference to authorities in the United States of America which were relied upon by the applicant, concerning the ownership of Presidential materials and tape-recorded conversations involving President Nixon (see, for example, Nixon v Sampson 389 F. Supp. 107 (1975) and Nixon v Administrator of General Services 433 US 425 (1977)). Different constitutional and statutory considerations, as well as well as different conventions, inform the view which has been taken there to the effect that, as a general principle of law, records which are generated, created, produced or kept by a public official in the administration and performance of the powers and duties of a public office belong to the government and may not be considered the private property of the official.

122    Fourthly, however, nor do I accept Archives’ submission that the presumption of regularity has some meaningful operation in these proceedings (see [81] above). Archives submitted that the presumption applied so as to produce the result that the various Directors-General who entered into arrangements with various Governors-General concerning the custody of correspondence between a Governor-General and The Queen had authority to enter into those arrangements and, moreover, it should also be presumed that each of those Directors-General held a satisfaction that those records were not the property of the Commonwealth. The presumption of regularity is discussed in cases such as Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164, where McHugh JA said:

The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office… R v Brewer (1942) 66 CLR 535 at 548… And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg [1973] VR 583.

In the circumstances of that case, absent evidence to the contrary, McHugh JA was prepared to apply the presumption of regularity to prove that the secretary of the Western Lands Commission, who executed the grant of a permissive occupancy of land under the Crown Land Consolidation Act 1913 (NSW), had been duly delegated to do so by the Minister acting under s 17A of that Act.

123    The presumption has been considered in other cases where the issue has arisen as to whether it can be presumed that a decision-maker, including a delegate, has been properly appointed and made a valid decision notwithstanding the absence of formal evidence of the person’s appointment (see, for example, Ray v Superannuation Complaints Tribunal [2004] FCA 1120; 138 FCR 548 per Goldberg J).

124    I accept that the presumption of regularity has a potentially wider operation in public law. For example, in Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; 170 CLR 649, Gaudron J made the following observations at [22] and [23] in the context of a claim in a judicial review challenge that notices issued by the Deputy Commissioner of Taxation under what was then s 264 of the Income Tax Assessment Act 1936 (Cth) had been issued for an improper purpose (footnotes omitted):

22.    It was put on behalf of the respondents that the onus of establishing that a decision was made for an improper purpose lies on an applicant for judicial review and that in the present cases that onus had not been discharged. In particular, it was put that, in determining whether the onus had been discharged, a court should proceed by application of the presumption, embodied in the Latin expression omnia praesumuntur rite et solemniter esse acta, that all things have been done correctly and solemnly. To the extent that presumptions are usefully brought to bear where reasons are provided for decisions the subject of an application for an order of review under the ADJR Act, it may be that the relevant presumption is that embodied in the Latin expression omnia praesumuntur legitime facta donec probetur in contrarium. That presumption, which applies to official acts, is that all necessary conditions and formalities have been satisfied until the contrary is proved. See Jowitt's Dictionary of English Law, 2nd ed. (1977), at p 1283.

23.    The ADJR Act does not make express provision as to the onus of proof in respect of grounds of review. In Brunetto v. Collector of Customs, it was said by Toohey J., in relation to s.5(1)(c) of that Act, that "it is incumbent on the applicant to demonstrate lack of jurisdiction". Given that there is nothing in the ADJR Act to displace the general rule that it is for an applicant to establish his or her case, the statement in Brunetto is undoubtedly correct, both as to the ground there under consideration and as to the other grounds of review provided by that Act. More particularly and bearing directly on the present cases, there is nothing in the ADJR Act to displace the common law rule that a person impeaching the exercise of a power on the basis of improper purpose bears the onus of establishing that issue. See, for example, as to the common law rule, Municipal Council of Sydney v. Campbell. And, where the subject matter of a decision falls squarely within the terms of a statutory provision, then, in the absence of evidence establishing improper purpose or evidence displacing all possible permitted purposes, it must be accepted, simply because of the absence of such evidence, that the decision was made for a purpose for which such decisions might properly be made. It is only if the purpose attending the decision must be ascertained by inference from other facts that a presumption of regularity has a role to play. An improper purpose will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power. See Reg. v. Inland Revenue Commissioners; Ex parte Rossminster per Lord Diplock at p 1013.

125    Although Gaudron J was in dissent, I respectfully consider that her Honour’s observations represent the law.

126    As mentioned above, however, I do not consider that the presumption of regularity assists in resolving the issues in dispute in these proceedings. The applicant did not dispute that the various Directors-General were duly appointed and would enter into valid arrangements for the purposes of s 6(2) of the Act. Moreover, the issue of whether or not correspondence the subject of such an arrangement was properly viewed by the Director-General as not being the property of the Commonwealth (or the property of a Commonwealth institution) falls to be determined by the Court applying appropriate principles of statutory construction relating to the Act. This task is not constrained by the presumption of regularity. It is difficult to see how the presumption of regularity applies in the particular circumstances here so as to establish the Director-General’s satisfaction or state of mind that AA1984/609 was not “a Commonwealth record” as contended by Archives, when there was no statutorily-based archives legislation in place in August 1978.

127    Fifthly, I do not consider that Archives’ construction of the Act should be rejected because, on the applicant’s submission, this construction means that the documents comprising AA1984/609 remain the property of Sir John Kerr forever and could, for example, be retrieved and then destroyed or otherwise disposed of by, for example, Ms Bashford. As noted above, the documents constituting M4513 were provided to Archives in June 1998 by Sir John’s eldest daughter, Ms Gabrielle Kibble. Subsequently, Ms Bashford (who is Sir John’s stepdaughter and executrix to Sir John’s widow, Anne Dorothy Kerr), signed various instruments of deposit with the Archives relating to M4513. The applicant submitted that this demonstrated that there was potential for AA1984/609 to be retrieved from Archives and destroyed, or otherwise disposed of, irrespective of the clear national interest in those documents.

128    There are several difficulties with that submission. First, in her affidavit dated 9 March 2017, Ms Bashford made clear that when she deposited some of Sir John’s papers with Archives on 29 March 2004, it was not her intention or understanding that her instrument of deposit applied to private correspondence passing between Sir John and Buckingham Palace. Secondly, as Mr Whitlam QC acknowledged, insofar as the documents comprising AA1984/609 are concerned, it could be assumed that, by 29 March 2004, Sir John’s estate had been fully administered (noting that Sir John died on 24 March 1991 and Lady Kerr died on 16 September 1997). Thirdly, the scenario painted by Mr Whitlam QC failed to take into account The Queen’s own interest in the disposal of the documents comprising AA1984/609. Accordingly, I do not consider that this scenario stands in the way of accepting Archives’ construction as correct.

129    Sixthly, I do not accept the applicant’s submission (as outlined in [59] above) that an inference should be drawn that Sir John considered that he could not withdraw AA1984/609 from Archives, in contrast with his retrieval of 11 cartons of other papers which he had lodged with Archives. There is no evidence to indicate that any of the 11 cartons included correspondence of the character of the documents constituting AA1984/609. Indeed, an inference might be drawn that Sir John was content to have AA1984/609 remain in the custody of Archives because of the special arrangements regarding access to them, as reflected in the correspondence summarised above.

130    For these reasons, the second question, insofar as it relates to whether any of the records constituting AA1984/609 are the property of the Commonwealth, should be answered “no”.

131    As mentioned above, the resolution of the second question assists with resolving the first question, to which I now return.

132    As is evident from the analysis of the second question, historically and conventionally, a distinction has been drawn between correspondence between a Governor-General and The Queen arising from the performance of the duties and functions of the office of Governor-General and correspondence between the Governor-General and other persons arising from the performance of those duties and functions. The distinction is clearly drawn in Mr Smith’s letter dated 20 May 1980 to Sir John (see at [20] above). The sui generis nature of correspondence between The Queen and a Vice-Regal representative is not, however, confined to Sir John himself. It is reflected in the evidence summarised above relating to the arrangements made by other Governors-General in relation such correspondence, including Lord Casey, Sir Paul Hasluck, Sir Zelman Cowen and Sir Ninian Stephen.

133    In my respectful view, it is both unwise and unnecessary to seek in these proceedings to exhaustively define what papers or records of a Governor-General are “Commonwealth records” on the basis that they are Commonwealth property. In light of the assumption that all the records in AA1984/609 comprise correspondence between Sir John Kerr acting in his capacity as Governor-General and The Queen (and/or Her Majesty’s Private Secretary), and it is those records alone which are the subject of the applicant’s relevant request for access under the Act, it is sufficient to determine that, for the reasons given above, those records are not “Commonwealth records”, as found by Archives.

134    As noted above, the alternative way in which the applicant contends that the documents comprising AA1984/609 are “Commonwealth records” is because they are the property of a Commonwealth institution, being the official establishment of the Governor-General. I will now address that alternative case, which also overlaps to an extent with the terms of the second question.

(c) In the alternative to question (b), did Archives exceed its jurisdiction by reason that AA1984/609 did not contain “Commonwealth records” because it was not the property of the official establishment of the Governor-General?

135    In substance, the alternative issue raised by the applicant is whether the records comprising AA1984/609 are Commonwealth records because they are the property of a Commonwealth institution, namely the official establishment of the Governor-General. For the following reasons, I consider that this issue should also be answered in the negative, for the purposes of both this question and the second question.

136    First, the word “property” should be given the same meaning when juxtaposed with the concept of “the official establishment of the Governor-General” as it has when juxtaposed with the concept of “the Commonwealth”. Accordingly, for the reasons given at [102] to [106] above, the reference to “property of” picks up the concept of ownership as ordinarily understood under the general law. Secondly, it is notable that the definition of “Commonwealth institution” in s 3(1) of the Act refers to the concept of “the official establishment of the Governor-General”, as opposed to the “Governor-General” or even “the office of the Governor-General”. As noted above, the phrase “the official establishment of the Governor-General”, which is undefined, appears to be unique to this Act.

137    The task is to construe those words. The relevant principles of statutory construction are conveniently reflected in the following passage from the recent judgment of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 (SZTAL) at [14] (footnotes omitted):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

138    It is significant that, in contrast with all the other “Commonwealth institutions” specified in s 3(1), the only one which has a qualification to it is that relating to “the official establishment of the Governor-General”. All the rest refer to the particular institution as a whole and without qualification, e.g. “the Executive Council”, “the Senate” and “a Department”. This strongly suggests that the qualification is intended not to encompass the broader institution which is reflected in the concept of “the Governor-General”.

139    I accept Archives’ submission that the qualification “official establishment” refers to persons who assist and support the Governor-General’s performance of official duties, namely the Official Secretary and his or her staff. The history of the position of Official Secretary is outlined in [66] above, noting also that the non-statutory position of Official Secretary to the Governor-General existed for decades prior to the amendments passed in 1984 and 1999. The effect of s 6 of the Governor-General Act is to create the statutory office of Official Secretary to the Governor-General and s 6(2) provides that the Official Secretary, together with the staff employed under s 13 (who then become members of the Governor-General’s staff) constitute “the Office of Official Secretary to the Governor-General”. The function of that Office is “to assist the Governor-General” (s 6(3)).

140    The effect of this construction is that the Governor-General himself or herself is not relevantly a “Commonwealth institution” or “the Commonwealth” itself. In my view, this outcome is supported not only by the text of the Act, but also by contextual considerations. Those considerations include the legislative history to the Act, although some care needs to be taken in this regard because, as noted above, that legislative history may not reveal a consistent approach to the question of the extent to which archives legislation should apply to the Governor-General’s records. The first Bill, the Archives Bill 1977, proposed that a different approach be taken to the records of a Governor-General and his Office, and records of the executive government. This is reflected, for example, in Prime Minister Fraser’s letter dated 18 October 1977 (see [14] above) and Senator Durack’s reference to special provision having been made for the records of, inter alia, the Governor-General (see [30] above).

141    It appears that a different view was taken in the Archives Bill 1981. The opposition moved an amendment to subject all records of the Governor-General to the open access provisions, but this Bill was never passed (see [33]-[34] above).

142    I do not consider that it is appropriate to construe the Act as passed by reference to the then opposition’s proposed amendment to an earlier Archives Bill. The Act plainly draws a distinction between the records of the official establishment of the Governor-General and the Governor-General himself or herself. In my view, the intention was to have the provisions of the Act, dealing with such matters as the open access period, apply to records of the official establishment of the Governor-General, but to leave to any particular Governor-General the option of placing his or her private or personal records with Archives under arrangements pursuant to s 6(2). To the extent that any such records were also “Commonwealth records” as defined in s 3(1), s 6(3) was inserted to ensure that the provisions relating to “Commonwealth records” applied to such documents even though they happened to have been included in personal papers deposited with Archives under a s 6(2) arrangement.

143    I do not accept the applicant’s submission that the Act should be construed by reference to what Senator Evans said in his Second Reading Speech, when he referred to the legislation not applying to the Governor-General’s “private or personal records” and that this is a very limited category of documents, such as Christmas and birthday cards, bank statements etc. That approach fails to take account of the fact that there has generally been an acute appreciation of the special character of correspondence between the Governor-General and The Queen, an appreciation which was undoubtedly heightened by the events leading up to the dismissal of Prime Minister Whitlam on 11 November 1975. That appreciation is reflected not only in Prime Minister Fraser’s letter dated 18 October 1977 (see [14] above), but also in the Director-General’s letter dated 18 November 1977 (see [15] above).

144    Finally, in my view, Kline provides additional support for this construction. Of course, Kline did not raise the proper construction of the Act, but rather the proper construction of the companion Freedom of Information Act 1982 (Cth) (the FOI Act). Moreover, there are clear differences between the FOI Act and the Act when it comes to dealing with documents or records relating to the Governor-General. Most notably, the Governor-General is not a “prescribed authority” for the purposes of the FOI Act. Under s 6A of the FOI Act there is a right of access under the FOI Act to a document of the Official Secretary where “the document relates to matters of an administrative nature”.

145    Without losing sight of those important textual differences between the FOI Act and the Act, it seems to me that some of the observations of the High Court plurality in Kline provide broad guidance in resolving of some of the matters in dispute between the parties concerning the Act and its application to certain records of the Governor-General.

146    First, the plurality in Kline (French CJ, Crennan, Kiefel and Bell JJ) stated at [33] that a matter of “considerable contextual significance” in resolving the issues there concerning access under the FOI Act is the fact that the Governor-General is not subject to the operation of that legislation. This was because that office did not fall within the definition of an “agency” or “prescribed authority”. The High Court also drew attention to the fact that neither the Parliament nor Justices of the High Court were subject to that legislation. Their Honours observed at [33] that:

… certain individuals, including the Governor-General, who hold independent offices pursuant to the Australian Constitution or a federal enactment, requiring the impartial discharge of the powers and functions of such office, are not subject to the operation of the FOI Act.

Similarly, the Governor-General is not subject to the operation of Act, however, it does apply to the official establishment of the Governor-General (as to which see further below).

147    Secondly, matters of “textual significance” which were emphasised by the plurality in Kline include the fact that certain provisions of the FOI Act (namely ss 6A(1),  5(1) and (6)) reveal “a plain intention to constrain the extent to which the FOI Act pursues its purposes and objects against persons (or entities) providing administrative support to individuals who hold independent offices and are not subject to the operation of the FOI Act” (at [36]). The same may be said in respect of the Act and the distinction which is drawn there between, for example, the office of Governor-General and the “official establishment of the Governor-General”.

148    Thirdly, the plurality noted at [37] that the FOI Act did not pursue its objects at any cost, but rather, struck a balance between exposing some government processes and activities to increased public participation and scrutiny while exempting other government processes and activities in order to secure a competing or conflicting public interest in non-disclosure. Similar observations may be made in respect of the Act.

149    Fourthly, the plurality noted at [38] that the position of the Governor-General “calls for the exercise of a multiplicity of powers and functions, many (but not all) of which are undertaken in public, and some (but few) of which involve making decisions other than on the advice of a Minister or the Executive Council”. These observations are equally applicable here.

150    Fifthly, at [39], the plurality described the Governor-General’s responsibility for the administration of the Order of Australia as “a sui generis role” which required “full and frank assistance to the Governor-General from the Council for the Order”. In turn, the Council required full and frank assistance from the Office of the Official Secretary to the Governor-General. The same may be said in respect of the unique role of the Governor-General in providing personal briefings to The Queen, which briefings are made by the Governor-General without reference to, or advice from, the government.

151    Sixthly, consistently with the exclusion of the Governor-General from the operation of the FOI Act, the plurality concluded that the class of documents which are not “of an administrative nature” related to the discharge of the Governor-General’s “substantive powers and functions”, as opposed to “matters of an administrative nature”, which connoted documents which concern the management and administration of office resources (at [41]). Similar implications might be drawn from the fact that the Act focuses on the records of the “official establishment of the Governor-General” as opposed to the position of Governor-General itself.

152    Seventhly, it is appropriate to say something briefly concerning the phrase “administrative records” in the context of records of the official establishment of the Governor-General. As noted above, this phrase is not used in the Act although a similar phrase appears in the FOI Act, as discussed in Kline. The phrase does appear, however, in a document titled “Access Examination Manual” which is published by Archives (November 2014) for the guidance of its staff in making access decisions under the Act. At page 149, under the heading “Personal and private correspondence between the Governor-General and the Palace”, the Manual states:

The Archives Act brings the records of the official establishment of the Governor-General under its coverage. Records of the official establishment are essentially the records of the Office of the Governor-General. These administrative records are treated in the same way as other Commonwealth records subject to the Archives Act.

Personal and private correspondence from the Governor-General to the Monarch is not covered by the Archives Act.

153    It is significant that there is no reference in Archives’ letter dated 31 March 2016 (see [7] above), in which brief reasons were given for the decision to refuse access, to the issue whether the documents constituting AA1984/609 are “administrative records”.

154    The applicant submitted that it should be inferred from the reasons given by Archives for denying access to the documents constituting M4153 that Archives reasoned that the only records of the Governor-General that are brought under the Act are administrative records of the official establishment of the Governor-General. It was further contended that this same reasoning was employed in denying access to AA1984/609 because, in the letter dated 10 May 2016, it was stated that this bundle of documents was not a “Commonwealth record” and is not subject to the access provisions under the Act “for the same reasons as Record M4153”.

155    In my respectful view, the applicant’s submissions on this matter are based on a false premise. There is nothing in either statement of reasons to suggest that Archives viewed the characterisation of records as being “administrative records of the official establishment of the Governor-General” as relevant to its decision on access. I do not accept the applicant’s submission that it should be inferred that Archives applied the wrong test in its reasons for refusing access to AA1984/609.

156    For these reasons, I do not accept that Archives exceeded its jurisdiction in determining that the records constituting AA1984/609 are not the property of the official establishment of the Governor-General. The third question should be answered in the negative.

Conclusion

157    For these reasons, the originating application filed on 20 October 2016 should be dismissed. The parties were agreed that, in these circumstances, there should be no order as to costs.

Associate:

Dated:    16 March 2018