By Dr George Venturini

Continued from Part 10

94. As we have said, it is clear that the Archives Act includes within its field of operation a record that is the property of a Commonwealth institution, relevantly the official establishment of the Governor-General.
95. By analogy with Kline, we construe the legislation as not including as property of the Commonwealth what may be referred to, somewhat loosely, as the private or personal records of the Governor-General. The language is loose, and potentially misleading, because it suggests that the word “private” might mean no more than “confidential”.
96. We consider the primary judge was correct to conclude that the correspondence, and therefore the records under consideration, arose from the unique representative character of the relationship between The Monarch and the Governor-General where there was no capacity on the part of The Monarch to act or to direct. We would include in the Governor-General’s role and function the appointment and removal of a Prime Minister: see Twomey A, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018) at p 740, where Professor Twomey also observes: “The flow of power, however, does not work in reverse.” We understand that The Monarch, on the advice of the Prime Minister, appoints the Governor-General as her representative and may, on the advice of the Prime Minister, dismiss the Governor-General, but this does not affect our analysis of the nature of the relationship between The Monarch and the Governor-General while it subsists.
97. We accept the submission on behalf of the respondent that that interaction was of a kind that was personal, not in the sense that it did not involve the undertaking of actions referable to the respective status or office held by the participants, but because the particular body performing the act was doing so personally and not officially, in particular given the absence of capacity in the Monarch herself to act or to direct the Governor-General. We reject the approach that everything that a person who holds an office does is done by that person officially, even though, but for holding that office, the person holding the office would not be so acting.
98. We do not express a concluded view on whether or not all records that are records of the Governor-General, but are not records of the official establishment of the Governor-General, are not the property of the Commonwealth.
99. For these reasons, we do not accept that the records are the property of the Commonwealth for the reasons contended for by the appellant.
100. We reject the submission that the nature and incidents of the office of Governor-General are such that all records created or received by the holder of that office in its performance is property of the Commonwealth. Some records may be the property of the Commonwealth but the records presently under consideration are not.
101. We reject the submission that ss 2, 3 and 61 of the Constitution operate conformably with or reflect the constitutional settlement concerning the public and private property of the Sovereign in England and Wales. We see no utility in such a comparative exercise. As we have said, the answer to the present question is to be found in Australian law.
102. We reject the submission that the text or context of the Archives Act support a construction of that Act such that all records created or received by the Governor-General in the performance of his or her office are “Commonwealth records”. In our opinion, the Archives Act proceeds on the basis that the records presently under consideration were, at the time of the creation or receipt, and remain, the property of the person then holding the office of Governor-General and not the property of the Commonwealth.
103. The approach that we take as to the premise of the operation of the Archives Act accords, broadly, with the views of those participating in the contemporaneous events. What people think about who owns property, or who is entitled to property may or may not be decisive, or relevant, to answering any particular legal problem. Sometimes, an operative legal rule (whether statutory or belonging to the general law) will determine questions of ownership, irrespective of belief or assumption. Absent some supervening rule, however, what the only people who could have a claim to property in documents thought at the time (it would appear unanimously) does reflect not only a clear statutory premise of the Archives Act, but also who in truth was understood and agreed to have property in the documents.
104. Given our conclusions as to the central importance of the nature of the relationship between the Governor-General and The Queen, self-evidently the decision in Nixon, on which the appellant relied, is of no assistance: see [55] above.
105. We agree with what the primary judge said in this respect at [121] to the effect that different constitutional and statutory considerations, as well as well as different conventions, inform the view which has been taken there as to the position of the President: see [55] above.
106. It is not necessary to consider the appellant’s alternative argument as our conclusion does not depend on a dichotomy involving the official establishment of the Governor-General but upon the records in issue not being a Commonwealth record as defined. We are not persuaded that the primary judge did reason by reference to a false dichotomy at [135] and following. We note the conclusion of the primary judge, at [155], that there was nothing in the statement of reasons to suggest that the 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.

Conclusion and orders

107. We would dismiss the appeal. The appellant should pay the respondent’s costs in the sum of $30,000 in accordance with the Registrar’s order of 22 June 2018.

Justice Flick dissented for the following reasons:

108. The fundamental question dividing the parties is whether the documents in issue – being the documents contained in Archives record AA1984/609 – are properly to be characterised as “Commonwealth records” for the purposes of the Archives Act 1983 (Cth), namely whether the documents are the “property of the Commonwealth”. The relevant facts, together with the legislative background to the form of the current legislation, [have] been set forth by both the primary Judge and in the joint reasons of the majority. It need not be again repeated.
109. The documents in issue have been described in fairly general terms in the facts agreed between the parties. It is nonetheless on the basis of those agreed facts that the primary Judge (and this Court on appeal) is called upon to determine the proper characterisation of the documents. Those documents contain correspondence between the Governor-General and the Queen of Australia between 15 August 1974 and 5 December 1977. The majority of the letters “address topics related to the official duties and responsibilities of the Governor-General”. The description in the agreed statement of facts provides that at least some of the documents contain “personal and confidential correspondence” between the former Governor-General and the Queen, some of the letters taking “the form of reports to The Queen about the events of the day in Australia”. “Certain of [the] letters”, it has been agreed, “include attachments comprising photocopies of newspaper clippings or other items of correspondence, expanding upon and corroborating the information communicated by the Governor-General in relation to contemporary political happenings in Australia”. The documents relate to the period of time which includes the dismissal on 11 November 1975 by the Governor-General of a former Prime Minister of this country.
110. It is with great diffidence that concurrence cannot be expressed with the conclusions reached by the primary Judge or the majority. The conclusion of the majority that these documents “remain … the property of the person then holding the office of Governor-General and not the property of the Commonwealth” (at para [102]) is, with great respect, a conclusion which is not self-evidently correct. It is, with respect, difficult to conceive of documents which are more clearly “Commonwealth records” and documents which are not “personal” property. The documents include correspondence between a former Governor-General of this country, written in his capacity as Governor-General, to the Queen of Australia in her capacity as Queen of Australia, concerning “political happenings” going to the very core of the democratic processes of this country.
111. Any conclusion, be it the conclusion of the majority or the present conclusion, is one which is primarily to be reached by reference to the legislative context under consideration, namely the Archives Act and the Constitution of Australia. Any consideration of the historical context in which property may be regarded as the personal property of the Queen or of her Governors-General may be interesting but is ultimately not decisive.
112. No provision of the Archives Act, as finally enacted, expressly addresses the question of whether records of the Governor-General fall within the ambit of that Act. Nor does the legislative history preceding the Act provide any assistance in the resolution of that question. Although the position occupied by Governors-General and the manner in which their correspondence with the Queen has been treated over the years was the subject of consideration, no part of either the second reading speeches which preceded former Bills or the second reading speech preceding the Bill which became the current version of the Act provide any real support for the conclusion of the majority. Nor does the report of the Senate Standing Committee on Constitutional and Legal Affairs concerning aspects of the Archives Bill 1978.
113. Such legislative background provides no reason, with respect, to construe the statutory phrase “Commonwealth record” as defined in any manner other than in accordance with the natural and ordinary meaning that that phrase would otherwise convey – read in the context and consistent with the purpose of the Archives Act – and certainly not in any restrictive manner or in any manner dependent upon distinctions not drawn by the Archives Act itself.
114. Nor does the position occupied by the Governor-General provide any reason to reach a contrary conclusion. Under the Constitution, the office of the Governor-General is established by s 2 as being the Queen’s “representative in the Commonwealth” and “subject to [the] Constitution” the Governor-General may exercise “such powers and functions of the Queen as Her Majesty may be pleased to assign to him”. The Governor-General nevertheless performs many functions, some of which may be traced back to the Constitution and some of which may be more ceremonial, having no Constitutional or statutory source: cf. Kline v Official Secretary to the Governor-General [2013] HCA 52 at [11], [2013] HCA 52; (2013) 249 CLR 645 at 653 per French CJ, Crennan, Kiefel and Bell JJ. Other than by reference to an agreed fact that some of the correspondence is characterised as “personal and confidential”, there is no evidence (and certainly no agreed fact) that there was any relationship between the Queen and the then Governor-General other than that set forth in the Constitution.
115. Although it may readily be accepted that the Queen has no capacity to control or influence the Governor-General in the exercise of Constitutional functions (cf. Sue v Hill [1999] HCA 30 at [78] and [82][1999] HCA 30; , (1999) 199 CLR 462 at 496 to 497 per Gleeson CJ, Gummow and Hayne JJ), the fact remains that there is a relationship between the Queen and the Governor-General established by the Constitution. Nor does the position occupied by the Governor-General or any absence of any ability to control the exercise of Constitutional functions throw any light on whether a communication is a “personal” communication. If anything, the position itself and the subject matter (it is considered) would more clearly indicate that the correspondence remain records of the Commonwealth.
116. Concurrence cannot be expressed with the submission of the Respondent, being the submission accepted and relied upon by the majority, “that that interaction [between the Queen and the Governor-General] was of a kind that was personal, not in the sense that it did not involve the undertaking of actions referable to the respective status or office held by the participants, but because the particular body performing the act was doing so personally and not officially” (at para [97]). Other than by reason of the fact that correspondence was between the Queen and the person who for the time being occupied the position of Governor-General, there is no real explanation or reason for concluding that they were writing “personally”. To accept that some of the correspondence was described as “personal and confidential” is not a sufficient basis to conclude that the correspondents were acting in their personal and not official capacities. Indeed, to accept a submission that the Queen and the Governor-General were not “acting … officially” seems to deny the very positions each occupied. And the dichotomy advanced in submissions between “property of the Commonwealth” and “personal property” is apt to mislead. There is no reason why correspondence which has been written in a “personal” capacity may not also be the “property of the Commonwealth”.
117. Not all documents or correspondence exchanged between Governors-General and the Monarch are necessarily, however, “Commonwealth records”. The title or position of the correspondents and the understanding or intention of those engaging in such correspondence is not determinative. Nor is the subject-matter of the correspondence determinative.
118. With the benefit of hindsight, it is respectfully considered that the question now to be resolved may not have been best resolved by reference to an agreed statement of facts. Much may depend upon the manner in which such correspondence is expressed and the precise subject matter being addressed. One or other of the documents in question may be potentially characterised as “personal property”. A conclusion that “newspaper clippings” sent to the Queen are “personal” property is a conclusion with little merit. “[R]eports” to the Queen and correspondence addressing “political happenings” attract different consideration. Without separately considering each such document, it is difficult to characterise the documents as “personal” rather than as documents going to the very heart of the Constitutional system of government of the Commonwealth and forming part of the records of the Commonwealth. Whether any particular document is an “exempt record” by reason of s 33 of the Archives Act because disclosure may (for example) “constitute a breach of confidence” (s 33(1)(d)) is an entirely separate question and a question which did not, and does not, arise for present determination.
119. Notwithstanding the constraint imposed by the manner in which the proceeding progressed, it is nevertheless concluded that the documents and correspondence, considered as whole and as described in the agreed statement of facts, remain “Commonwealth records”. That conclusion is reached by reference to the positions occupied by the Queen and the Governor-General; the functions being discharged by the Governor-General; the nature of the correspondence as described in the agreed statement; the subject matters being addressed; and the importance of that subject matter to the Constitutional system of government of this country. To regard those documents as “personal” property, with great respect to those who hold a contrary view, is a conclusion which cannot be supported.
120. The appeal should be allowed.”

Not many readers could be persuaded that the package in dispute “contains the personal and confidential correspondence between the Right Honourable Sir John Kerr, A.K., G.C.M.G., G.C.V.O., K.St.J., Q.C., Governor-General of the Commonwealth of Australia from 11 April 1974 until 8 December 1977, and Her Majesty The Queen,” as the majority put it. Such correspondence is sui generis, said the majority – Latinising.

Good. The reader who has survived thus far, may be offered a line from one of Horace’s Epistles, actually 1, xviii, 15,which runs like this: “Alter rixatur de lana saepe caprina”, and could be translated as: “one often quarrels about goat’s wool.” A freer translation could be: “Do not waste your time over worthless matters.” made fun of those who lost time quibbling predominantly and pedantically on trivial and stupid issues, similar to goat’s wool which had no commercial value.

In fact, once it had been sheared, that wool appeared in hard, intricate, difficult to untangling; And once spun with great difficulty, it was prickly, rough and shaggy, for nothing easy to work and unpleasant to wear.

The issues of ‘caprine wool’ in short, cost only practical and mental fatigue, without actually giving any valid and concrete result.

Traveller has had more than a smattering in the law, albeit at a continental university. Because not entitled to be regarded as ‘learned in law’- as the courtly expression states – Traveller put a question to a learned barrister, And the question went like this: “Suppose that at the beginning of the dispute, safely before the lawyers – who are officers of the court, aren’t they? – started duelling over the meaning of this and that section of the Archives Act – were to agree that the judge should open the package and satisfy himself as to the nature of the correspondence by reading it, would the case have been resolved more quickly and more economically?”

The question revealed Traveller’s limited knowledge of ‘common law’ and displayed a certain ignorance of the position that judge have in common law countries: they are ministers of a quasi lay religion which casts them as detached from the Hoi polloi, the ‘commoners’, the ‘plebeians’, and their lawyers. The suggestion also ignored that Professor Hocking’s lawyers, who were acting pro bono, had already committed the cause to a ‘case stated’ procedure. Had Hocking demanded that the judge see the content of the package the Archives, quite likely would have objected. A well provided client may insist that the lawyer use every available method to exhaust the finances of a pro bono assisted adversary. Archives could have stalled proceedings for years on technicalities.

Three judges appeared weaklings in defence of The Monarch. Justice Flick dissent is short, clear, courageous and un-ambiguous. Can anyone miss the ringing of the bell at para. 110: “It is, with respect, difficult to conceive of documents which are more clearly “Commonwealth records” and documents which are not “personal” property. The documents include correspondence between a former Governor-General of this country, written in his capacity as Governor-General, to the Queen of Australia in her capacity as Queen of Australia, concerning “political happenings” going to the very core of the democratic processes of this country.”? [Emphasis in original]

Is special leave being sought?

Continued Saturday – Adjunct imperialist clowns (part 1)

Previous instalment – Medieval combat for ‘the Palace letters’ (part 10)