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)