By David Ayliffe  

Nothing makes you feel your age more than trying to deal with a telephone/internet company about a problem. I’ve known 20-year olds who have aged decades just from one small attempt at resolving a billing dispute. Met one just the other day in a nursing home. Thought he was well into his 80’s but when he kept taking selfies in strange positions I started to wonder. Apparently his experience of Telstra customer service not only aged him prematurely but when he lost the plot entirely “telco dementia” set in. They say, it can’t be treated you know.

The trouble is that whilst I will exaggerate a little in this piece, most of you phone and internet users reading it will see no exaggeration at all, and that is such a worry. I can see you quietly nodding in agreement.

So, what’s the problem?

In my case I began writing this whilst in the very act of trying to communicate to customer service and sort out my minor problem with my wonderful telco Telstra. “Telstra, can’t help but love you … but!

Sarcasm? Don’t be silly. And of course, no exaggeration intended.

Today my casual chatting (as I write) – and some people say guys can’t multi task – is to a succession of Telstra robots and employees after visiting the Telstra shop where I was told that what Telstra personnel had told me wasn’t correct and they knew better.

It’s OK. I don’t really mind today. I’ve decided I’m not going to get angry and I’ll use this writing exercise as a distraction. After all, it’s not the staff I’m dealing who are to blame. It’s the men and women that I can’t talk to – the people at the top driving their Porsches, travelling first class and luxuriating in offices with wonderful views.

No, I’ve got plenty of time. I’m only 65 and I’m not planning to die for a while. I am in fact hoping to live and work till I’m 90 when I’m determined I will retire whether I want to or not. Being one of the few with not enough super on which to retire, I’m determined not to be a burden on the Government as I remember oh so well the pleadings and preachings of a previous treasurer of this Imperial outpost, the formerly Honorable Joe Hockey and his illustrious leader (“Sir Philip of Australia, Duke of Edinburgh” now also formerly Honorable Tony Abbott who encouraged all of us not to be leaners on society but lifters. Speeches that are enshrined in Hansard and our hearts.

Joe and Tony, I want you to know wherever you are in Washington or at the beach or wherever else, I’m lifting, oh I’m lifting hard, and I’m not going to stop.

Sorry I digress.

It was all my fault in the beginning. And probably at the end too.

I dropped my phone and cracked the screen. The Samsung S9 is a beautiful piece of equipment but like me, it doesn’t work well with a cracked screen. So, with the phone screen cracked, my head began to reel in dollar signs. Then comfort flooded me… No worries, I thought. Three years ago I decided it was time to not be a leaner on Telstra, that poor mega rich company in Australia, but a lifter. So instead of continuing on a buy plan where Telstra provided me with the phone and data and I paid a monthly fee and then at the end of the period they talked me into upgrading to the next wizz bang creation for another two year period, I decided to do something just a little bit different.

The salespeople were so convincing when they offered a Lease Plan. Fantastic. Not only would I have the same service, and phone that I would have on the other plan, but at the end of the plan I wouldn’t have to worry about what to do with the old phone that I owned when it was replaced by a new one because I wouldn’t own it at all. Brilliant. I would simply give it back to Telstra. Would I save money? No. Once again the sales person was very helpful I wouldn’t save money – after all what is money worth in our economy anyway? – no I would have the opportunity of upgrading to the next wizz bang phone after only 18 months and with just a small $200 cost added to my bill. Wonderful eh! Or if I was patient I could have a new phone and new plan at the end of the current plan where, remember, I would have the benefit of not owning the phone I had leased for that period and simply giving it back.

Now, if you are feeling confused perhaps that was my excuse when I elected to go for this plan. The biggest benefit I thought at the time was the replace or repair concept that meant if something went wrong – say, I dropped the phone – it would be replaced or repaired at no cost.

Wonderful. So, if I haven’t lost you already you might recall this brings me to the predicament that has kept me on the phone or text to different Telstra robots and minions over the last several weeks.

Through all this time I was so confident that the Telstra I loved so much wouldn’t let me down. They had my back. I just didn’t realise they had my balls as well!  You see, something happened between the last Lease Plan and the current one. Probably my fault I’m sure, but, it seems that my repair or replace option was no longer current and that’s why my negotiations with them took on Trumpian proportions – where, in the end it wasn’t me but Telstra (“do I have a deal for you”) who win every time.

This prompted me to make several calls to contact one of the Telstra robots who always ask my name, my number, the colour of my underpants and whether I have had a bowel action this morning, before they put me through to a human being.

My discussion today did have a relatively happy ending. Not so of course if I couldn’t drive or was infirm which you will see later.

I have made several attempts to resolve this problem and what has angered me before, and rather amused me today was the fact that every call meant I had to start at the beginning because there seemed no easy record of my complaint for staff or robots to access.

Most of the human beings you deal with appear to be very nice people. Certainly the ones you text don’t seem to exhibit any personality flaws, but then again it is hard with text to determine a personality at all, let alone gender, hair colour or nose rings.

I’m not going to bore you with the succession of conversations, texts etc that have gone on over many weeks now. Suffice to say I went to the Telstra Shop in Ringwood today to drop off my phone for the repair that billing staff had told me in August that they would cover because of the misunderstanding over my errant repair or replace policy. It had taken me a little while to find someone who could lend me a phone for the period as the shops no longer provide loan phones. (Remember those days…nostalgia hurts eh).

I had to have a loan phone even if only for a few days to run two small businesses that help me keep on lifting for Joe, and not leaning on Australia. I work as a disability support worker – trying to help others not lean too much – and I’m a Marriage Celebrant where I try and give couples a lift up into their happy future. (Dad joke. Not very good!)

The employee in the shop told me that despite my protestations that I had been told my phone could be repaired at cost to Telstra, even if billed to me first, was not possible. The phone on a Lease Plan would be replaced with a new phone and a new plan.  I objected I don’t want a new plan. I don’t want to be with Telstra when this plan ends. I want to run a business with carrier pigeons or Morse code or some other form of communication like SHOUTING rather than deal with Telstra – even though it’s “Telstra, can’t help but love you… but!

All of this prompted me not to get upset or angry as I might have in the past, after all, who was to blame the person in front of me or the people I can’t speak to in their (spiritually speaking) ivory towers.

No, as soon as I got in the car I made a hands free call to Telstra for my hour long drive home where I spoke to a few robots, who sounded very nice but I soon learned were recorded voices who asked me my name, my number, the colour of my underpants and whether I had had a bowel action this morning, before they put me through to a human being.

I stayed on that call with various people and robots, none of whom had records of my previous discussions even though my phone and name had been provided to each one. Finally, the line dropped, and I just drove home quietly without talking to robots or humans and was happy indeed. Perhaps it was God.

Then after reaching home I did what a text had told me to do. I went to my computer where I logged in to the Telstra web page and then chatted with another person who I discovered was a robot because of the questions about my underpants and bowels. Once again, even when chatting (not talking) – and so you understand clearly “chatting” is not chatting, it’s texting – I was put through to my first human being on text of the afternoon. I know this because I asked whether the person was human or not and Mark replied that he was, and not only that but, “100%”. That was encouraging because some of my family might question whether I’m 100% human. Anyway, with each person I had to explain (type) my story over and over again to be sure they understood what my problem was. And I worked very hard to keep myself calm, at peace and in control all through it. After all, Cody, Mark, Gerard and James were not the problem. The problem was the people I couldn’t speak to who were too busy enjoying the views from their lovely offices, travelling first class and driving their Porsches or equivalents.

The people I spoke to were also Testra customers (as one of them told me) so they knew not only how to endure the suffering of others, but to suffer themselves. Although I’m sure being insiders they would have found easier ways to solve their problems than me.

It was James who finally brought the curtain down. He not only managed to find the original record of my conversation on August 23rd (19 days before) about this issue and the resolution proposed at the time, which I now know couldn’t work, but he then found a way to fix it properly. So, as soon as I can, I will take the offending phone to a Samsung shop where the screen will be repaired. I will ask their assistance in setting up the loan phone I have from a friend or use one of theirs so my aged and disabled clients can still enjoy my assistance and those planning weddings can still be wed.

And Telstra will be in its tower watching us, and all will be well with the world.

With all the ongoing frustrations of modern life I’m afraid I can’t help but wonder how different things could be. A few years ago, I met a man who had similar struggles with Telstra and his response was different to mine. He started his own small Telco to onsell products provided by Telstra and others and maintain an Australian based support network to ensure that problems that arose could be dealt with swiftly. His company was so easy to deal with and made happy customers as easily as rabbits make rabbits.

He ran the company for a few successful years. There’s a lot of money in telephones and associated services and finally sold to another company and I’ve since lost track of what has happened with them.

It seems incredible to me that a company as large as Telstra can’t operate more efficiently and with greater benefit to us, who literally, pay the bills.

I think my scenario could have worked much better. Let me dream a little. It could have been something like this:

It is August 23rd this year when I make my first call to Telstra to get help in regard to my broken screen problem. A pleasant-sounding voice answers. I will discover that this is a robot. More specifically it is a recorded voice linked to computer programs.  I’m asked whether the call is for 1. New Business (Sales), 2, Technical Support and 3. Accounts and 4. Something else. 

I’m tempted to select 1 for new business knowing that the carrot of making a sale will mean faster response time, but no, I select 4. for ‘Something else’ and the Robot then asks me for my name and phone number after which the call is redirected. Immediately, my phone number and name has been forwarded to a human being who is able to see details of my account and any reason for the call that I have already given. Importantly, the person will see a summary of my previous interactions too, if any, with Telstra, and so may ask me whether those were resolved satisfactorily as this may well be the reason for the call. If that is not the case they proceed to ask how they can help. Rather than several calls, several robots, and several customer representatives each of whom have to ask me to repeat my details and my problem to them –  with this system, any department at Telstra that answers my call and has these details forwarded to them will be able to see the problem and know whether they can help or whether it needs to be forwarded to another department. I hope this is making sense. It’s called communication, and Telstra and its competitors are all in, (surprise, surprise), the communications game.

Put simply if modern technology was used appropriately by modern companies the experience of customers dealing with those companies could be handled much more easily and overall be much more sweet to the taste.

When the last woman I spoke to on 23rd August proposed a resolution to my problem that involved Telstra shops, perhaps communication of that resolution could have been automatically forwarded to the shop of my choice and staff there would have had the opportunity of advising that it wouldn’t work. This would have saved me hours of further negotiations and time and fuel in travelling to and from the Telstra shop or indeed other shops. It certainly would have been good for my mental health. 

Of course, this is not only a telecommunications company problem. Similar issues occur with many companies who happily take our money and provide little by way of customer service in return. I could mention government departments but don’t want to depress you completely.

*****

I wonder whether anyone has ever done time and management studies, or cost accounting on organisations like Telstra and their customer service? In my case alone the problem was not huge however I guess I spoke to up to a dozen people over those weeks and chatted to half a dozen. How much does all that cost? Yet this was just a broken screen on a mobile phone for heaven’s sake. I could have paid for it to be fixed, even though I don’t own and will never own this phone under its current plan and it would have been settled much more quickly. This would in fact have been a lot easier for me, but was it the right thing to do. What then of the major issues that people have and the difficulties they have in getting a satisfactory outcome. I think of some of my intellectually disabled clients who talk about how hard it is to get their problems understood when they have an issue with a mobile phone, an internet provider or (forgive me) Centrelink! The cost to the community of corporate and government stupidity must run into the billions and then there’s another question that arises.

In chatting with James the last of my Telstra customer service people today I wrote: “Would love to know if Telstra provides excellent mental health support for you and your team. You must need it!” I wasn’t being rude and James thanked me for my concern and replied that yes Telstra does and supports the “Are you OK” campaign.

That’s great but I really wonder how much Telstra as a workplace could be improved by greater efficiencies and a better communication mechanisms across departments and to customers as well. The cost savings financially and emotionally could be enormous. Again, this is not just about Telstra as there are many companies that I could name that could similarly be improved but Telstra as the leading communications company in Australia, should be leading the way.

Telstra, can’t help but love you … but, I’m on the lookout for a small to medium telco company that provides the sort of service that is still possible in the 21st century but eludes corporate giants that only want profits and don’t care how they get it.  If I can’t find one, maybe like my friend Damien I might start one. It can’t be that hard.

By Dr George Venturini  

Explicitly, Justice Griffiths declared that he could “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 Para. 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. (Para., 119).

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. (Para. 120)

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. (Para. 121).

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. (Para. 122).

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). (Para. 123).

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. (Para. 124).

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

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. (Para. 126).

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. (Para. 127)

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. (Para. 128)

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. (Para. 129).

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”. (Para. 130).

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

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 Para. 20). 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. (Para. 132).

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. (Para. 133).

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? (Para. 134).

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. (Para. 135).

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. (Para. 136)

The task is to construe those words. The relevant principles of statutory construction are conveniently reflected in the following passage from the recent judgement 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. (Para. 137).

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”. (Para. 138).

Justice Griffiths accepted “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)). (Para. 139).

“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 Para. 14) and Senator Durack’s reference to special provision having been made for the records of, inter alia, the Governor-General (see [30] above). (Para. 140).

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 Paras.33,34). (Para. 141).

Justice Griffiths did “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. (Para. 142).

Justice Griffiths did “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 Para. 14), but also in the Director-General’s letter dated 18 November 1977 (see Para. 15).” (Para. 143).

Finally, Justice Griffiths said, “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”. (Para. 144).

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. (Para. 145).

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). (Para. 146).

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”. (Para. 147).

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 (Para. 148).

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. (Para. 149).

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. (Para. 150).

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. (Para. 151).

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. (Para. 152)

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

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”. (Para. 154).

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. (Para. 155).

For these reasons, Justice Griffiths did 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.” (Para. 156)

Finally, on 16 March 2018, Griffith J. concluded:

“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.” (Para. 157).

Continued Saturday – Medieval combat for ‘the Palace letters’ (part 6)

Previous instalment – Medieval combat for ‘the Palace letters’ (part 4)

By Dr George Venturini  

Professor Hocking filed two written submissions in reply.

They may be summarised as follows:

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.

Furthermore, the applicant submitted the relevant provisions operated by reference to both ownership and provenance. (Para. 84).

Additionally, 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. (Para. 85).

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.

Professor Hocking submitted that the convention was obscure and was inappropriate to create inter partes rights and obligations or to assist in statutory construction. (Para. 86) and 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). (Para. 87).

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. (Para. 88).

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. (Para. 89).

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. (Para. 90).

Importantly, 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. (Para. 91).

The applicant emphasised the policy which was agreed between Professor Neale and Mr. David Smith in November 1977. (Para. 92). 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. (Para. 93).

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. (Para. 94).

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. (Para. 95).

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. (Para. 96).

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 (Para. 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. (Para. 97).

As already noted, 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. (Para. 98).

Justice Griffiths proceeded to analyse the case.

He thought that it was 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, and as set out in Para. 50.

The issues before the Court were:

“(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?

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. (Para. 100).

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

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-Para. 7, 8 and 9). (Para.101).

Justice Griffiths then proceeded to examining the meaning of the term ‘property’. “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”.” (Para. 102).

Justice Griffiths found it unnecessary for the purposes of the proceeding to attempt an exhaustive meaning of the word “property”, but he was prepared to ‘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 – he said – is supported by the following relevant features of the Act. (Para. 103)

“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). (Para. 104).

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). (Para. 105).

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.” (Para. 106).

For the following reasons, Justice Griffiths found 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 (He intended to 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). The reasons for his finding were as follows:

“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 Para. 12). 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. (Para. 108).

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. (Para. 109).

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 Para. 13), 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. (Para. 110).

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. (Para. 111).

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 Para. 20). 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. (Para. 112).

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 Para. 15 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”. (Para. 113).

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. (Para. 114).

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 Para. 20). (Para. 115).

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. (Para. 116).

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 Para. 15);

(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 Para. 22); 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. (Para. 117).

Finally, although not determinative of the issues of statutory construction, Justice Griffiths found it 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. (Para. 118).

Continued Wednesday – Medieval combat for ‘the Palace letters’ (part 5)

Previous instalment – Medieval combat for ‘the Palace letters’ (part 3)

Media Release

Edith Cowan University (ECU) will further its formidable expertise in cyber security, computer science and digital citizenship with the launch of a new research institute.

The Institute for Securing Digital Futures will bring together the University’s strengths across a number of related fields to work towards protecting Australia’s interests in an increasingly connected world.

It will focus on linking research across five key areas where ECU already conducts world-leading study:

• Artificial intelligence and autonomous systems
• Critical infrastructure security
• Combating cyber-enabled crime
• Digital citizenship and human behaviour
• Secure systems

The new institute will build on the successes of ECU’s existing Security Research Institute, which is recognised as a world leader in cyber security research.

ECU Deputy Vice-Chancellor (Research) Professor Caroline Finch AO said the launch of the Institute for Securing Digital Futures was the latest step in ECU’s journey to becoming a research-intensive university producing world-class research.

“ECU has determined that the landscape of our digital future is an area in which the University already has considerable research strength and the capacity to further grow this academic muscle through additional investment and the promotion of cross-disciplinary study,” Professor Finch said.

“In no other field is change occurring more rapidly than it is in the digital domain. It is impacting every aspect of human existence at an exponential pace and so it’s absolutely vital that we closely examine those impacts; that we stay ahead of the curve by designing the curve ourselves.”

Making a difference for all Australians

The new institute will be led by Tony Marceddo, who joins ECU from cloud provider Vault Cloud and numerous positions in the defence, intelligence, space, cyber and communications sectors.

“The Institute for Securing Digital Futures will focus ECU’s significant research strengths in this area toward solutions that will make a difference to everyday Australians,” he said.

“I’m looking forward to engaging with business, industry and government to work on solving pressing issues in our digital environment.”

The Institute for Securing Digital Futures is the first of four new University wide research centres that will be launched by ECU as part of its enhanced focus on producing world-class research.

By Dr George Venturini  

On 20 October 2016 Professor Hocking applied to the Federal Court of Australia for the release of a bundle of letters between Kerr and the Queen, which release had been denied by the National Archives of Australia (Archives) on 10 May 2016 on the stated basis that the documents were not “Commonwealth records”.

The events which had brought the parties before the Federal Court were as follows: on 10 July 2011 Professor Hocking made an application under the Archives Act 1983 for access to a 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.

On 31 March 2016 Hocking 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:

“… 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.

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’.

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.”

The case was heard on 31 July 2017 and 6 September 2017.

As Griffith J. wrote in his judgment, “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.” (Hocking v. Director-General of National Archives of Australia [2018] FCA 340, Para. 8).

The contention of the Archives was that the documents “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”. (Id., Para. 2).

The central question in the proceeding was whether or not the relevant records were 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.

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”. (Paras. 3 and 4).

Appearing for Professor Hocking (hereafter ‘the applicant’), Mr. A. P. Whitlam QC, with Mr. Brennan 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. (Para. 49)

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? (Para. 50).

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.” (Para. 51).

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.” (Para. 52).

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. (Para. 53).

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.” (Para. 54).

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. (Para. 55).

The applicant’s core submission was that communications by constitutional officeholders 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. (Para. 56).

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 Para. 18). (Para. 57).

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. (Para. 58).

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 Para. 20).

“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.” (Para. 59).

The reduction of the embargo period from 60 to 50 years is explained in a letter dated 23 July 1991 (see Para. 22). 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. (Para. 60).

In support of her alternative case, the applicant challenged Archives’ view that the Act only applies to records which 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. (Para. 61).

It had already been noted that 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 Para. 26). The applicant submitted that this is what Prime Minister Fraser had in mind when he wrote his letter to Sir John (see Para. 14). (Para. 62).

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. (Para. 63).

Appearing for the Archives, Mr. T. Howe  QC,  a member of AGS, a group within the Australian Government Attorney-General’s Department providing legal services to government by way of assisting  the Attorney-General in the role of First Law Officer, as well as advising the Executive Government and all Commonwealth agencies, with Mr. C. Lenehan and Ms. D. Tucker, 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.” (Para. 64).

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. (Para. 65).

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. (Para. 66).

At this point Griffith J. promised that he would have further returned to discuss the Kline case noting, however, that it related to the proper construction of different legislation.  (Para. 66).

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. (Para. 67).

Mr. T. Howe QC took the Court to extensive material relating to the practices of previous Governors-General concerning personal correspondence between the Vice-Regal and The Queen. (Para. 68).

Mr. Howe began his lengthy excursus by referring to 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.“

In that case, 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. (Para. 69).

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. (Para. 70).

“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.” (Para. 71).

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. (Para. 72).

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”. (Para. 73).

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.” (Para. 74).

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. (Para. 75).

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 Para. 19) and Mr. Smith’s reply (see Para 20). (Para. 76).

“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 Para. 18). (Para. 77).

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.” (Para. 78).

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. (Para. 79).

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. (Para. 80).

“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.” (Para. 81).

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. (Para. 82).

Continued Saturday – Medieval combat for ‘the Palace letters’ (part 4)

Previous instalment – Medieval combat for ‘the Palace letters’ (part 2)