By Dr George Venturini  

Cont from Part 9

69. There was a parallel to the Freedom of Information Act 1982 (Cth), which came in at the same time, where the Governor-General was not an agency, but the Official Secretary of the Governor-General was. Here it was a similar kind of demarcation where the official was in, but the person was out of, the operation of the statutory regime.
70. The respondent submitted that looking at that kind of demarcation and recognising that s 3(2) contemplated that there would be such a thing as property of the official establishment of the Governor-General, the kinds of material that one would ascribe to that category were things like proclamations, regulations under laws made by the Parliament, records of formal advice to the Federal Executive Council, formal appointments of a Minister of a department of state under s 54 of the Australian Constitution, appointments or removals of other officers under s 67 of the Australian Constitution, all being a range of powers or functions that the Governor-General exercised in an obviously official way involving a deployment of power. And that would normally be the product of advice submitted to the Governor-General through the office from the Executive government of the day. That was the main significance of the primary judge’s finding, at [120], that here the Governor-General was not exercising Executive powers: it had negative significance in that it was not a function of that kind that the Court was now concerned with.
71. The demarcation that had been drawn between the official establishment and the Governor-General included at least personal letters written by the Governor-General to The Monarch. The legislative history showed that it was that category of correspondence that seemed to have been the particular driver for a partial exclusion of the Governor-General from the Archives Act. So the category that the Court was concerned with was front of mind for Parliament at the time.
72. The respondent submitted the exclusion might well go further than Palace correspondence: tasks that were undertaken by the Governor-General personally himself or herself without being responsive to advice from the Executive government and without the need for extensive support from the official establishment were the kinds of things that Parliament was endeavouring to recognise were the personal or private property of the Governor-General. That would include not just Palace correspondence but other personal correspondence, diaries the Governor-General might have kept, perhaps speech notes of speeches that the Governor-General wrote for himself or herself. Documents of that kind did not readily fall within the undefined notion of the official establishment that Parliament chose to adopt.
73. A further textual consideration, the respondent submitted, that bore on the question was that the definition of “Commonwealth record” focused on the property being “the property of the Commonwealth or of a Commonwealth institution” which pointed towards the conclusion that the Act was concerned only to render a Commonwealth record property where the Commonwealth had the full and complete ownership of the record under the general law, rather than some lesser proprietary interest in it.
74. If that were not the case, the Act would operate most strangely because, for example, the Archives had the power under s 6(1)(h) of the Act to authorise the disposal or destruction of Commonwealth records. If the property could be anything other than the exclusive property of the Commonwealth archives, the Archives Act would authorise destroying proprietary interests of other persons.
75. The representative function of the Governor-General, the respondent submitted, did not involve any communication of an intergovernmental kind from the British Government to the Australian Government. It was a representative role in relation to the person occupying the hereditary status as sovereign of the United Kingdom identified in covering clause 2 of the Australian Constitution and representing that person as The Monarch but as Monarch who had no role and no powers that they could perform within Australia.
76. The respondent submitted the words “person” or “personal” were to be understood in that way. References to “personal” in this context did not mean “private” and did not mean “not in an official capacity”. It suggested it was not right to draw a dichotomy between the personal and the functions of the Office. The function of the Office might have a personal dimension in representation of the person as Monarch of Australia. Although the records concerned the way that the Governor-General was carrying out his functions at the time, and in that general sense concerned his functions, they nevertheless correctly carried the description personal and confidential communications with The Monarch.
77. The respondent submitted the special character of the functions of the Governor-General were recognised and examined by the High Court in Kline. The respondent submitted the line-drawing exercise that Kline was concerned with was of a parallel kind to the problem before this Court. At [34], the High Court recognised that the processes and activities of government which were opened to increased scrutiny by the Freedom of Information Act did not include those associated with the exercise of the Governor-General’s substantive powers and functions. Some of the functions were of a sui generis kind and needed to be exercised in private. The respondent also referred to [77] of Kline per Gageler J.
78. The respondent submitted that here, similarly, the evident intention not to bring the Palace records within the scope of the Archives Act over the various iterations of the Archives Bill prior to its enactment likewise compelled the conclusion that the records should not be held to be Commonwealth records.
79. The source of the pieces of paper did not answer the question and what was more significant was that what the Governor-General was doing was a unique function of a representative kind, but in the unusual representative circumstance that existed as between The Monarch and the Governor-General where there was no capacity to direct and no ongoing function in Australia: that interaction was of a kind that was personal not in the sense that it did not involve in some sense the performance of functions, but because the particular function that was involved for the Governor-General was aptly described as “personal”.
80. That, the respondent submitted, was what the primary judge meant when he was talking about the sui generis character of the relationship. That was consistent with the way not just that Sir John Kerr regarded what was occurring, but the way that the Palace treated it and the way that the Archives treated it from the start. The respondent submitted the practice of the Archives constituted the Commonwealth acquiescing in the arrangement or the understanding of the source of property in these documents.
81. The respondent referred to the evidence given by Mr Mark Fraser by affidavit affirmed 3 February 2017. Mr Fraser was appointed to the position of Official Secretary to the Governor-General in June 2014. He deposed to his understanding that it was a matter of long-standing convention that correspondence between The Monarch and Her Governors-General across the 15 Realms outside the United Kingdom were private and confidential communications not forming part of any official government [record]. Underpinning the convention was the fundamental British constitutional principle that communications between The Queen and Her Ministers and other public bodies should remain confidential, and that the political neutrality of The Queen and the Royal Family, and the Royal Household acting on their behalf, should be maintained. By extension, Mr Fraser deposed, communications with the Vice-Regal representatives of The Queen also fell within the terms of this principle. This long-standing convention existed in order for The Sovereign and Her representatives in the Commonwealth Realms to communicate in confidence and thereby permitted and facilitated such communications.
82. The respondent submitted that Nixon v Sampson was of limited assistance because, ultimately, one had to drill down into the particular duties and functions in question. The fact that there was quite a close connection between the production of the record, on the one hand, and the duties and functions did not answer the property question, even applying the United States principles. Here, there was such a dramatic difference between the role of the Governor-General, particularly as it related to corresponding with the Monarch, and that of the President of the United States, that the Court’s approach to the tape recordings at issue in Nixon told this Court little, if anything, as to who owned the Palace correspondence.
83. The respondent also referred to United States v First Trust Company of St Paul [1958] USCA8 26; 251 F.2d 686 (1958), affirming First Trust Company of St Paul v Minnesota Historical Society 146 F. Supp. 652 (1956). That litigation concerned certain historical documents, being a series of original writings on miscellaneous scraps of paper of various sizes, describing the Lewis and Clark Expedition’s winter encampment near the mouth of the Missouri River in 1803-4 and a part of the Expedition’s subsequent exploratory journey on the Missouri River in 1804-5. In the Court of Appeals, Eighth Circuit, the court held that the trial court was not clearly erroneous in finding that the papers were written for Captain Clark’s private use only and that accordingly the government had not sustained the burden of proof establishing its claim to them. The court agreed with the opinion and order of the District Court, that the documents in question were the rough notes of Captain Clark, made by him for his personal use in subsequently preparing his own private diary and hence were not an official work product of the Lewis and Clark Expedition to which the United States could claim paramount title. An examination of the 67 documents in question indicated that while they did contain much data such as President Jefferson requested Captain Lewis to gather in his official record, they also carried a great many personal and private notations. Although Captain Lewis sent the Clark journals to President Jefferson, he gave him instructions as to limitations on their use which the President observed. The Court of Appeals said, at 691, that apparently not only Clark himself but Lewis and Jefferson believed the papers to be the personal property of Captain Clark.

Consideration

84. As a matter of first impression, it may seem strange that the Archives Act proceeds by reference to whether or not a record is the property of the Commonwealth. The matter was not argued on the basis of the ownership of the paper on which the records were written. Nor was it argued on the basis of copyright: compare Moorhouse v Angus & Robertson (No. 1) Pty Ltd [1980] FSR 231; and, on appeal, Moorhouse v Angus & Robertson (No 1) Pty Ltd [1981] 1 NSWLR 700. It was not suggested that the Commonwealth owned the copyright in the unpublished literary works, as made by, or under the direction or control of the Commonwealth: see Pt VII of the Copyright 1968 (Cth).
85. We have set out above at [62] the background to the statutory choice that was made by the Parliament.
86. In our opinion, the primary judge was correct, at [119], to reject the appellant’s submission that the records should be viewed as the property of the Commonwealth simply because their subject-matter related to the performance of the Governor-General’s role and function. To find a conclusion as to property on such a functional approach would be to introduce an administrative provenance definition, when that alternative had been rejected some years earlier.
87. There are contexts (such as the records of an agency relationship: see Watts P and Reynolds FMB, Bowstead and Reynolds on Agency (21^st ed, Thomson Reuters, 2018) p 284 [6-093]) where the law will provide a rule as to ownership of or access to documents by reference to the relationship of parties and their obligations and duties towards each other. In a unique constitutional, governmental and Vice-Regal context such as the office of the Governor-General, the question of property in documents is not answered by some simple rule transposed from other contexts.
88. To accept the appellant’s proposition of functional performance would be to hold that every record written by the Governor-General may, as a result of s 56, be made available by the Minister, or a person authorised by him or her, for public access. Such a result would be at variance with the objects and purpose of the Archives Act, in light of the relevant context we have summarised at [24]–[40] above.
89. A straightforward example to illustrate the point would be a personal diary. Such a diary might well relate to the author’s performance of his or her role or functions but that without more would not make the diary the property of the Commonwealth. In so saying we do not limit our consideration to the position of the Governor-General: it would extend to Ministers and other officers of the Commonwealth.
90. Relevant to the conclusion so far as concerns the Governor-General is the width of the proposition put by the appellant which would treat in the same way records relating to the wide range of powers and functions of the Governor-General, as referred to in Kline by French CJ, Crennan, Kiefel and Bell JJ at [11] and [38]:

Section 61 in Ch II of the Australian Constitution vests the executive power of the Commonwealth in the Queen and provides that such power is exercisable by her representative in Australia, the Governor-General. The grant of honours, once regarded as part of the prerogative of the Crown, is now encompassed in the executive power conferred by s 61. These proceedings are not concerned with any of the many powers or functions of the Governor-General which involve acting on the advice of the Executive Council. Whilst it is accurate to describe the role of the Governor-General as having evolved since Federation, Governors-General have exercised a range of constitutional, statutory, ceremonial and community responsibilities. The Governor-General’s role in respect of the Order reflects ceremonial and community responsibilities, as well as the Governor-General’s constitutional position as the representative of the Sovereign in Australia.

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.

(Footnotes omitted).

91. No doubt some of the records written by the Governor-General would be the property of the Commonwealth and one general example may be records of the exercise by the Governor-General of the executive power of the Commonwealth within the meaning of s 61 of the Constitution. It is to be recalled that, by that section, “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”
92. We would however place less emphasis than did the primary judge on what the Governors-General and their heirs and successors did in relation to the records relating to their office over the entirety of the period since Federation. This is because both the relationship between Australia and the United Kingdom and the relationship between The Queen and the Governor-General has developed over that period. The Balfour Declaration illustrates the point: and see Sue v Hill [1999] HCA 30; 199 CLR 462 at [76] per Gleeson CJ, Gummow and Hayne JJ.
93. It is to be recalled that the Balfour Declaration contained the following:

We proceeded to consider whether it was desirable formally to place on record a definition of the position held by the Governor-General as His Majesty’s representative in the Dominions. That position, though now generally well recognised, undoubtedly represents a development from an earlier stage when the Governor-General was appointed solely on the advice of His Majesty’s Ministers in London and acted also as their representative.

In our opinion it is an essential consequence of the equality of status existing among the members of the British Commonwealth of Nations that the Governor-General of a Dominion is the representative of the Crown, holding in all essential respects the same position in relation to the administration of public affairs in the Dominion as is held by His Majesty the King in Great Britain, and that he is not the representative or agent of His Majesty’s Government in Great Britain or of any Department of that Government.
(Footnote omitted).

Continued Wednesday – Medieval combat for ‘the Palace letters’ (part 11)

Previous instalment – Medieval combat for ‘the Palace letters’ (part 9)