By Dr George Venturini

A ‘Commonwealth record’ is defined as any record which is the property of the Commonwealth, but the term does not extend to such material in a collection maintained by the Australian War Memorial, the National Library of Australia or the Australian National Gallery.

The Australian Archives will have the power to seek the deposit in its custody of other records closely associated with the origin, history and functioning of the Commonwealth Government and to take steps to ensure that such material is properly preserved.

Special provision is made for certain Commonwealth records separate from those of the Public Service and associated Government agencies. The provisions of the legislation will apply to the records of the official establishment of the Governor-General, but not to his private or personal records… Special arrangements have been made in order that the provisions of the legislation can be applied to records of the Parliament and the courts by means of regulations, in terms consistent with the constitutional relationship between the Executive Government and the Parliament and the courts.
(Senate Hansard, 2 June 1983, page 1183 left hand column and page 1184, left hand column.)

(Emphasis added.)

40. It was the Archives Bill 1983 which was enacted.

The facts

41. It is appropriate first to consider the arrangements by which the records came to be in the custody of Australian Archives as existing before the Archives Act came into force in order to consider the operation, if any, of s 6(2).
42. According to the parties’ agreed statement of facts, set out by the primary judge at [9]:

…

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

…
11. Mr Smith by letter covering the original bundle instructed that those papers:

(a) were to remain closed until after 8 December 2037; and
(b) thereafter were not to be released without prior consultation with the Sovereign’s Private Secretary of the day and the Governor-General’s Official Secretary of the day.

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

…

43. The primary judge set out, at [18], the letter of deposit, which stated relevantly:

This package contains the personal and confidential correspondence between the Right Honourable Sir John Kerr, A.K., G.C.M.G., G.C.V.O., K.St.J., Q.C., Governor-General of the Commonwealth of Australia from 11 April 1974 until 8 December 1977, and Her Majesty The Queen.

In accordance with The Queen’s wishes and Sir John Kerr’s instructions, these papers are to remain closed until 60 years after the end of his appointment as Governor-General, i.e. until after 8 December 2037.

Thereafter the documents are subject to a further caveat that their release after 60 years should be only after consultation with the Sovereign’s Private Secretary of the day and with the Governor-General’s Official Secretary of the day.

44. The primary judge, at [3], identified the central question in the proceeding as 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.
45. The appeal was conducted on the same basis. That is, if the records were the property of the Commonwealth and thus a Commonwealth record as defined, the effect of the arrangements referred to in s 6(2) would be displaced. The appellant submitted that if she proved ownership by the Commonwealth, s 6(3) was one of the reasons why there should have been review by the primary judge of the approach taken by the Archives.
46. Important to the arguments of the parties, and one foundation of the appellant’s submissions, was the following agreed fact:
47. The majority of the letters exchanged between the Governor-General (including by means of his Official Secretary) and the Queen (by means of Her Private Secretary) address topics relating to the official duties and responsibilities of the Governor-General. Some of the letters sent by the Governor-General (including by means of his Official Secretary) take the form of reports to The Queen about the events of the day in Australia. Certain of these letters include attachments comprising photocopies of newspaper clippings or other items of correspondence, expanding upon and corroborating the information communicated by the Governor-General in relation to contemporary political happenings in Australia.
48. At [132], the primary judge said that historically and conventionally, a distinction had 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 sui generis nature of correspondence between The Queen and a Vice-Regal representative was not, however, confined to Sir John himself. It was reflected in the evidence relating to the arrangements made by other Governors-General in relation to such correspondence, including Lord Casey, Sir Paul Hasluck, Sir Zelman Cowen and Sir Ninian Stephen. This view, apparently well-known and accepted by the Executive, was discussed by the primary judge at [117].

The submissions of the parties

48. The appellant submitted that on the facts in this case property could not be at one and the same time the property of both the former Governor-General and of the Commonwealth.
49. It was not left to inference or speculation as to the circumstances in which the pieces of paper with markings on them, that is, the chattels, came into existence. The records as a matter of fact comprised the originals of correspondence from the Queen or her Private Secretary to the Governor-General and copies of the Governor-General’s correspondence in the other direction.
50. The appellant drew attention to what the primary judge said at [107], as follows:

For the following reasons, I find that, at all relevant times, the documents comprising AA1984/609 were the personal property of Sir John Kerr and were not the property of the Commonwealth…

51. What the primary judge said following [107], the appellant submitted, did not comprise reasoning as to what followed as a matter of law in relation to property, including the subspecies of property called ownership, springing from the circumstances of the creation of those chattels. In other words, the appellant submitted, [108] and following were matters which were subsequent to the creation of the documents and which appeared to have been used by the primary judge as a kind of inferential or indirect support for his conclusion. As a matter of method it was striking that, when everything necessary to be known in the ordinary way to ascertain ownership was known, one did not either start or preferably finish with those matters. Although this was not private litigation, when there was in private litigation a dispute about ownership, it was rarely useful and never decisive that one of the disputing parties maintained that they owned the property. Admissions against interest were one thing. Statements simply out of court asserting the contested issue to be determined in favour of the party asserting it out of court was neither here nor there.
52. The appellant submitted that those records, those chattels, became, upon their creation and given the circumstances of their creation, the property of the Commonwealth of Australia. It was a question for a court of law to determine the property, that is, the ownership of papers created in the circumstances such as these were created. The self-evident concern as to the special nature of this correspondence did not speak to property.
53. The appellant submitted that no convention had been shown that Governors-General could take away as their own papers correspondence with The King or The Queen. It was doubtful, the appellant submitted, whether in any factual sense there was any convention of a kind which was either justiciable or capable of being given effect to for the purposes of the justiciable question of property which was the issue here. What was significant was the high political importance with resultant possibilities concerning access or publication of those communications. This was nothing really to do with property and paper; but to do with the content.
54. The appellant pointed to the following matters as showing Commonwealth property in the records, posing the question: “Do these facts characterise these documents as property of the Commonwealth?”:

(a) first, the nature and incidents of the office of Governor-General of the Commonwealth are such that all property created or received by the holder of that office in its performance is property of the Commonwealth of Australia;
(b) secondly, ss.2, 3 and 61 of the Constitution operate conformably with the constitutional settlement concerning the public and private property of the Sovereign in England and Wales; and records of a public nature which are the property of the Queen are “Crown property” which cannot be dealt with by the Queen as personal property;

(c) thirdly, the text, structure and legislative history of the [Archives Act] and the secondary materials support a construction of the Act such that all records created or received by the Governor-General in the performance of his or her office are “Commonwealth records”; but which avoids subjecting the Governor-General personally to any obligation to part with possession of such documents including to the National Archives; and

(d) fourthly, the construction for which the Appellant contends is consistent with directly analogous United States authority applying the common law of property and chattels to presidential records which had been decided during the debates concerning enactment of the [Archives Act].

55. The appellant relied on Nixon v Sampson 389 F. Supp. 107 (1975). In that case Judge Richey of the United States District Court, District of Columbia, held that former President Nixon did not own the “Presidential materials and tape recordings”, which were estimated to comprise 42 million items. The court applied the general principle in United States v First Trust Company of St Paul [1958] USCA8 26; 251 F.2d 686 (1958) that that which is generated, created, produced or kept by a public official in the administration and performance of the powers and duties of a public office belonged to the government and may not be considered the private property of the official. The court held, relevantly, that former President Nixon’s assertion of ownership was refuted by the very concept of the Office of the President in that the President was a servant of the people and did not embody the nation’s sovereignty, which remained at all times with the people.
56. The appellant referred to its (so-called) alternative case to the effect that the primary judge erred in creating a false dichotomy between the Governor-General and the official establishment of the Governor-General in order to determine the issue, this being judicial review.
57. The primary judge, the appellant submitted, erred because he should have sent the matter back to the decision-maker to proceed by asking the right question, not informed by a false dichotomy. This was not developed in oral submissions.
58. At [142], the primary judge had said:

…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.

59. The respondent submitted that the records were a category of document that at the time the Archives Act was framed was very much in the mind of the Parliament and which ultimately found expression in part of the definition in s 3, being the reference to the official establishment of the Governor-General.
60. The scheme of the Act, particularly in the definition of the archival resources of the Commonwealth in s 3(2), acknowledged that there would be documents that should form part of the Archives because they were important to the history or the government of Australia, but were not Commonwealth records. The evidence before the Court was that since Sir John Kerr, all of the Governors-General had proceeded on the footing that their papers were records of that very kind, which was why they had been submitted to the Archives pursuant to s 6(2) of the Archives Act to be held by the Archives pursuant to special arrangements, and not subject to the access provisions in Pt V.
61. If the appellant were right, the respondent submitted, then from the moment these records came into existence, it had been within the hands of the Prime Minister and Minister to release them publicly. That was the effect of s 56. But the idea that immediately upon a change of government all of the records of this kind could be disclosed at the discretion of the Executive government of the day was one, the respondent submitted, that should not lightly be embraced.
62. The respondent submitted that some of the appellant’s submissions focused upon whether records were of a kind made or received in the conduct of the affairs of the office of the Governor General. This was to adopt the provenance criterion which had been rejected in the enacted form of the Archives Act, as noted by the Australian Law Reform Commission in Report No 85, Australia’s Federal Record: A Review of Archives Act 1983, as follows:

8.13 The use of a property based definition such as that in section 3(1) is not universal in archival legislation. The most common alternative is an administrative provenance definition, such as was proposed in the original drafting instructions for the Archives Bill in 1974. The suggested formula was ‘all records of any kind made or received by any Australian [ie Commonwealth] Government agency in the conduct of its affairs’. However, successive drafts of the Bill in 1974–75 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. Anecdotal evidence from those involved in drafting the legislation is that the property definition was preferred because

• ownership was a term which was generally understood and which defined clearly a body of material to which the legislation would apply
• as owner of the records the Commonwealth already exercised many of the rights (for example, in relation to custody, disposal and public access) proposed to be included in the legislation
• if a definition other than that of ownership was to be adopted, confusion might arise between records which fell within the definition in the legislation and those over which the Commonwealth claimed a right of ownership
• the strong opposition in some quarters to the inclusion in the legislation of provisions for the recovery of Commonwealth records made a property definition desirable so that recovery could be pursued outside the legislation on the basis of common law ownership rights.

63. The kinds of rights that the Archives Act identified for particular regulation where a record was a Commonwealth record were possession, disposition, destruction, transfer. Those were the rights that the Act fixed upon as relevant to the regime that it created. The respondent submitted that those were the matters to which the Act directed attention when one asked the question –does particular property belong to the Commonwealth? Was it property of the Commonwealth? Or was it property of someone else, here the Governor-General?
64. The respondent submitted the primary judge looked at a range of considerations that bore upon both how the documents came into existence but also how they had been treated in the past, whether it had been a practice for Governors-General to take these documents with them when they left office. That was, the primary judge thought, persuasive and it was reflective of the notion that the right to possess the document asserted by all of these previous Governors-General as they left office was one important indicium when one looked to ownership.
65. To the extent that the function of the office holder, which would be relevant on a provenance definition, bore on the question, the question was not as stark as: “did the property come into existence in the performance of a function or duty of the office?” because that would be to shift completely to a provenance based definition. It was not the test that the Act adopted to require the Court or the Archives to look at the content of each document and assess whether what was being written in that document was connected with the discharge of functions. The ownership question was a different one and did not depend upon an analysis of that kind.
66. In paragraph (a) of the definition of “Commonwealth institution”, unlike all of the other paragraphs in the definition where the whole of the relevant body was brought within the definition of a Commonwealth institution, Parliament did not choose there to say: means “the Governor-General”, but instead: means “the official establishment of the Governor-General”. That phrase was not defined in the Act and was not used in any other Commonwealth legislation. It was not a term of art, and could therefore only be sensibly given meaning by reference to the statutory context and legislative history. At [139] of the reasons of the primary judge, the respondent submitted, the Court accepted the submission advanced by the Archives below that the official establishment referred to persons who assisted and supported the Governor-General’s performance of official duties, namely, the Official Secretary and his or her staff.
67. The respondent submitted Parliament was contemplating that there would be a demarcation between the official establishment on the one hand and the Governor-General personally on the other.
68. The principal task of statutory construction, the respondent submitted, was to identify where that line was to be drawn. It would not be to read these definitions coherently to say that documents which were not part of the official establishment of the Governor-General nevertheless were brought within the Act because they were property of the Commonwealth objectively.

Continued Saturday – Medieval combat for ‘the Palace letters’ (part 10)

Previous instalment – Medieval combat for ‘the Palace letters’ (part 8)