Hocking v Director-General of the National Archives of Australia [2020] HCATrans 4 (5 February 2020)

Last Updated: 5 February 2020

[2020] HCATrans 004

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S262 of 2019

B e t w e e n -

JENNIFER HOCKING

Appellant

and

DIRECTOR-GENERAL OF THE NATIONAL ARCHIVES OF AUSTRALIA

Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 FEBRUARY 2020, AT 10.02 AM

(Continued from 4/2/20)

Copyright in the High Court of Australia
MR DONAGHUE: Your Honours, can I follow up two matters from yesterday before resuming the submissions? The first relates to a question your Honour the Chief Justice asked concerning the relationship between accelerated access under section 56(1) and the exemption provisions. Our submission, in short – for reasons I will develop in a moment – is that the better view is that where the Minister in consultation with the Prime Minister causes public access to be available under section 56(1), the exemptions in section 33 are not relevant unless the class of documents to which access is provided under section 56 were to be defined in such a way as to make them relevant which we accept is possible.

So, the Minister could say, I will make access to this class – to any non‑exempt documents in this class available and that would be to define the class in such a way that it would be necessary to have regard to section 33. But, unless the class of documents were to be identified in that way, the exemptions are not relevant. The reason we say that requires me to take your Honours, first, to section 31 of the Act which is the first provision in Division 3 concerning access to Commonwealth records. Your Honours will note the heading for section 31:

Records in open access period to be publicly available

Section 31 applies only where the three conditions identified in subsection (1A) are all satisfied. So, the document has to be:

a Commonwealth record that:

(a) is in the open access period; and

(b) is in the care of the Archives or in the custody of a Commonwealth institution; and

(c) is not an exempt record.

So, by that means, that is the operative means by which the exempt record concept in section 33 comes in – if a document is an exempt record, the provision does not fall within section 31 and so under 31(1) Archives is not required to cause the record to be made available for public access.

If one goes to, on a couple of provisions, to section 35, “Identification of exempt records”, there are provisions for the Director‑General in consultation with the Minister to make arrangements for the determination process for whether or not Commonwealth records are exempt records. Looking at that in the open access period, it seems that the arrangements can be made – this is subsection (3):

may take place before the records concerned become records in the open access period.

But that seems to be directed to the idea that the Archives can get itself organised in advance by deciding on exemptions or not so that once the open access period expires then it is immediately possible to provide public access to any non‑exempt documents. Section 36(1) imposes an obligation, or rather creates an entitlement. So:

Where the Archives is required by this Part –

including by section 31:

to cause a record to be made available for public access, any person is –

again:

subject to this Part, entitled to access to the record.

Now, that is of course a reference to Part V. Part V includes section 56, albeit in a different division. Your Honours have already seen the terms of that provision. But section 56(1) relevantly involves a minister causing records to be available for public access. It does that in terms that make no reference to, or do not seem to incorporate any requirement to have regard to the exemption in section 33.

So, in our submission, prima facie, a person would have an entitlement by reason of 36(1) to have access to documents that are, to use the statutory language, available for public access, simply upon the Minister having caused the records to be available in that way. The section does not appear to call for or allow any further decision‑making process by the Director‑General of Archives of the kind that one sees contemplated in sections 31 and 35.

That reading, we submit, is supported contextually by section 57 of the Act, which is a provision that was mentioned yesterday which provides a defence to various kinds of actions that might otherwise be brought against Archives for making documents publicly available. 57(1A) is a deeming provision:

Where access to a record is given:

. . .

(c) by making the record available:

(i) under section 56(1), for public access; or

. . .

the access . . . shall be taken . . . as being a record required by this Part to be made available for public access.

So that section seems to contemplate that the making available of the record is taking place by reason of section 56. The other possible reading might have been that all 56 does is remove the requirement back in section 31. Your Honours will recall in 31(1A) there were three requirements that could have been ‑ it could, I suppose, be argued, that all 56 does is remove the open access requirement, but leaves the other two requirements in place, but that does not seem to be the way that section 57 approaches it. So that is the reason for the answer ‑ ‑ ‑

KIEFEL CJ: So you say the statute provides no protection where there is an accelerated access?

MR DONAGHUE: Because ‑ yes is the answer, because the decision to provide the accelerated access is required to be made at a very high level, in consultation with the Prime Minister, and it only applies in relation to documents owned by the Commonwealth. So effectively, if the Prime Minister says, with respect to a document owned by the Commonwealth, this document should be made available for public access, then it is. Otherwise, the Prime Minister could approve that arrangement and the document would never become available if it happened that an exemption applied, and that would defeat the decision‑making regime.

So that is the first issue. The second issue is your Honour the Chief Justice asked me about what material there was dealing with the circumstances in which the contemporaneously made copy of the documents, being the copy of the letters that Sir John sent, being the documents that form part of those in issue in this appeal were made.

Can I ask your Honours to go back to the appellant’s book of further material - I almost took your Honours to this yesterday, but did not in the end - to the document you see at pages 70 and 71. I think I took your Honours to the end of 70 and the top 71 with Sir John saying he felt it was important that for history’s sake the correspondence be available someday. But in the next paragraph, Sir John says this:

I did not in this conversation remind Philip that there had been a conversation between Charteris and myself in which he suggested that my copy of the correspondence, which contains the original letters from him and the carbon copies of mine to him, should go to the Australian archives.

So it seems that what happened was that the copy in issue was created simultaneously upon Sir John writing the letters by reason of the fact that he was making a carbon copy of them at the time, rather than by some subsequent process by which an agent went away and copied them using a photocopier or a matter of that kind.

Our submission is that your Honours should infer in the event that it becomes important that what Sir David was copying in the night when no one else was around, according to his notes at pages 52 and 55 of the respondent’s book of materials, were the carbon copies created simultaneously with the original drafting of the letters.

Now, your Honours asked a number of questions yesterday pertaining to the significance of the fact that Mr Smith had custody of the letters for a period of time from the end of Sir John’s tenure as Governor‑General through to his lodgement of the documents in the middle of the following year. The question I think revolved around the question of did that mean that they were in the custody of the official establishment so as to engage that limb of the “Commonwealth institution” definition.

Our submission on that is that custody is not enough to engage the definition and one simple reason we think that must be so is that if custody was enough then every document lodged with Archives would be a Commonwealth record because it would be within the custody of Archives which is part of the Commonwealth, and that cannot be right. That would immediately defeat section 6(2) of the Act which contemplates that some documents will be lodged with Archives that are not Commonwealth records and will be retained under other arrangements.

If lodgement with Archives was enough, by putting the document into the custody of the Commonwealth, then 6(2) is subject to 6(3). Section 6(3) of the Act says for a Commonwealth record, the access provisions trump the private access provisions and that would not make sense.

In our submission, your Honours see in the terms of section 3, the definition of “Commonwealth record”, not a reference to material that is in the custody of the official establishment or a Commonwealth institution, but a reference to:

property of the Commonwealth or of a Commonwealth institution –

meaning ownership of ‑ ‑ ‑

GAGELER J: Can I take you up on that at an appropriate time if you want to finish this submission, but I want to come back to that?

MR DONAGHUE: Yes. Your Honour, could I have a moment to finish this submission?

GAGELER J: Yes.

MR DONAGHUE: I made some submissions, particularly in answer to questions from your Honour yesterday about some of the complexities associated with the notion of ownership by non‑legal entities. Ultimately, your Honours do not need to resolve those complexities here for this reason – that these letters, in our submission, were – for reasons I have already developed – the property of Sir John when they were written. They were on the ordinary law of property as correspondence that he created.

Absent some attempt by Sir John to transfer property in the letters that he originally owned, whether to Sir David Smith, personally, or to the official establishment or to the Commonwealth body politic, and if there had been some intention of that kind, then your Honours would need to grapple with ‑ say, for example, Sir John had intended to transfer ownership to the official establishment ‑ then your Honours would need to grapple with, what does that mean because the official establishment does not exist as a legal entity and how do we give effect to that?

But, there is no evidence of any intention to transfer property to anyone and so your Honours do not get to the question of how could it have been transferred to a non‑legal entity. And we submit you do not get there for three reasons, and I will state them shortly. One, that, in our submission, it is clear law that the possession of a servant or agent is possession of the master or principal.

So if the servant or agent has actual possession – sorry, is the possession of the master, and it is the master who is regarded as having actual possession, not just the right to possession. And without giving it to your Honours, one authority for that is Penfolds Wines v Elliott [1946] HCA 46; (1946) 74 CLR 204 at 216, Chief Justice Latham.

That is relevant because the finding at 114 in the primary judge’s reasons that Sir David was acting as Sir John’s agent would suggest that by reason of that principle alone, Mr Smith, having possession of the documents, was in law still Sir John’s possession and that, we submit, is not a surprising conclusion because if one thinks about this correspondence and how closely held it was, there was really no one else that Sir John could have asked to copy them.

Unless he was going to copy them himself, the only other person who was within the tight circle of confidence associated with this correspondence was Sir David. So the trial judge’s conclusion that Mr Smith was acting as the agent for Sir John is unsurprising. So that is the first basis.

The second basis is that even if Mr Smith was not an agent of Sir John, in our submission, it is clear law that the possession of a chattel by a person who is not a servant or an agent, with the consent of the owner, generally gives rise not to a transfer of title, but to bailment. The bailor remains the owner of the property; amongst many authorities, Penfolds Wines v Elliott again, this time at 225, Justice Dixon.

And the third reason is that even if both of those reasons were wrong, for a gratuitous transfer of title to occur ‑ and there is no suggestion that anyone paid Sir John ‑ there has to be delivery and intention to transfer ownership of the chattel. Now, that intention can exist before or after the transfer, but the intention has to be found and, in our submission, not only is there no evidence of such an intention here, the evidence is very strongly to the contrary of any such intention, and if I could give your Honours two or three references. First ‑ all in the respondent’s book of further materials.

GORDON J: Sorry, could you say that again please, Mr Solicitor, the reference?

MR DONAGHUE: The reference, yes. The respondent’s book of further material, first at 41, page 41. I think I have taken your Honours to a different version of this perhaps in the core appeal book before. But looking, now that your Honours have gone to it, in 41 at about point 8 on the page, the second last paragraph halfway down, Sir John says writing to the Queen’s Private Secretary:

I would not wish to leave this correspondence in Government House. Each Governor‑General takes with him such material.

So that is contemporaneous, or roughly contemporaneous evidence of Sir John not intending to leave the records with Government House. Then a few pages on at page 56 in the same book, this is one of the handwritten letters from Mr Smith about the copying process. And this is the one written at the end, in June 1978, so you will see the first line:

The task is done –

And the task having been done, if you then go over the page to page 56, to the second half of the page, the task is done:

The files will now be sealed and lodged with the Director‑General of Archives –

So Sir David – I keep calling him Sir David – Mr Smith at the time had the custody of the records, in our submission, to do a job, the copying process upon which he reported, and then he said the files will now be lodged with Archives. And when they were lodged in the instrument of deposit, which is at 59 of the same book, in the middle paragraph, what Mr Smith said:

In accordance with the Queen’s wishes and Sir John Kerr’s instructions –

Now, if Sir John had transferred ownership of these records he was in no position to give instructions as to their disposition. So, in our submission, all of the evidence is against the idea that there was any transfer of property and for that reason your Honours should not attribute any significance to the fact that Mr Smith had custody. Your Honour I have asked you to wait a while.

GAGELER J: No, thank you. Is it convenient now?

MR DONAGHUE: Yes, indeed.

GAGELER J: In Telstra Corporation v Commonwealth [2008] HCA 7; 234 CLR 210 at paragraph 44 there is a statement with reference to Yanner and Eaton to the effect that the word “property” is used in different senses in legal discourse and that sometimes it is:

helpful to speak of property as a “bundle of rights” –

and sometimes it is more useful to identify property:

as “a legally endorsed concentration of power over things” –

Now, implicit, I think, in your presentation of the argument is the former approach to property as a bundle of rights. The difficulty, of course, which you recognise is that to have rights you need rights bearers, so it is very difficult to talk about a bundle of rights when you do not have legally competent persons who can exercise those rights, but it is meaningful to talk about a legally endorsed concentration of power when you look at the category of institutions that fit within the definition of “Commonwealth institution”.

The nature of the power might be different from institution to institution, but it is meaningful, I think, to talk about, within those institutions – various institutions of government – there being a legally endorsed power to dispose of documents. I just wanted to get your reaction to that way of construing the word “property” in this context. It seems to me to make sense of the definition.

MR DONAGHUE: Your Honour, I accept that there is force in that. I would submit in response that it is reasonably clear, not just from the Act itself, but from the Law Reform Commission report that I took your Honours to yesterday, that when the property‑based definition was adopted, part of the reason was that it was thought that it would be possible with respect to Commonwealth records not in the custody of a Commonwealth institution, to bring an ordinary action in an ordinary court to recover the Commonwealth property that was in the possession of someone else. So the concept “property of” was being used at least sufficiently to engage that set of rights.

Now, I do not think that is inconsistent with what you Honour is putting to me because it may well be that property even understood as a concentration of power would sufficiently enliven the capacity to bring the common law court action that would be necessary to recover the power. So I do not pose that as a possible reading. But whether a legally endorsed concentration of power or a bundle or rights, one does need - someone needed to exercise the concentration of power or the rights.

Now, it may be, as your Honour says, that, for a non‑legal entity one can more easily accommodate the exercise of the concentration of power by an officer within the Department, and perhaps that does obviate some of the conceptual confusions. Of course, some Commonwealth institutions are legal entities, and so the problem does not arise there, but there is a difficulty with those who are not.

The alternative is simply to say that where the capacity to exercise that concentration of power does reside in the Department, the Department is part of the Commonwealth, what our friends call the “two limbs” of the definition are actually substantially coextensive, and so one could just say the Commonwealth itself as a body politic is able to exercise the rights. That is how we have been conceiving it, but I do not deny that your Honours’ approach would also be valid.

GORDON J: Can I put another ‑ consistent with that, put another view to you as well. If you look at section 3(5) of the Act.

MR DONAGHUE: Yes, your Honour.

GORDON J: It says that:

a record held by or on behalf of the Parliament or a House of the Parliament shall be taken to be the property of the Commonwealth.

It is a provision which is a deeming provision, which on one view would support at least one view of what means “property” for the purposes of this Act, consistent with the way Justice Gageler put it to you. But the second thing is, it raises questions about what is the Commonwealth within the first limb of the definition of a record. It would seem to be that it may suggest that the “Commonwealth” there is narrower than the Commonwealth as a body politic and may be limited, for example, to the Executive. In other words, it is unnecessary, if it is broader than that, and if that is right, it may then suggest that the second limb is adding in bits to make sure that the Act covers those things which would be outside the Executive in order to ensure that the Act deals with Commonwealth records in a way which was always intended.

MR DONAGHUE: Your Honour, if the definition of Commonwealth institution had not included paragraph (e) and paragraph (g), in our submission, there would be more force in that reading.

GORDON J: It may be that it overreaches, but I accept that there is some overlap, but otherwise, why do you need 3(5)?

MR DONAGHUE: Well, your Honour, we would say more than just overlap, departments and authorities are ‑ that is huge overlap, that is most of the Commonwealth Executive has been put into this second limb. If property of the Commonwealth meant the Commonwealth Executive in the first, then Parliament has very substantially repeated itself. I accept, your Honour, that 3(5), because the ‑ ‑ ‑

GORDON J: It arose out of your submission yesterday where you said they were probably being overly cautious.

MR DONAGHUE: Yes. Well, they were making sure, in my submission, that at least all of the things identified in the definition of Commonwealth institution were understood to be within the phrase “the Commonwealth”, because if they did not make sure, it might easily have been that the provision could have been construed as not including the courts, and not including the Parliament. So I accept what your Honour says to that extent, but the difficulty is that if it was just to extend, it, in my submission, is hard to account for the inclusion of the departments and the authorities as understood as widely as they are.

EDELMAN J: I suppose there would also be the difficulty that if “the Commonwealth” really means the Commonwealth Executive in the context of “property of the Commonwealth”, then “Commonwealth institution” would need to be read as institution of the Executive and then one runs into the problems that, obviously, the courts or the Senate, the House of Representatives are not institutions of the Executive.

MR DONAGHUE: Yes, your Honour, indeed. Stepping back a little, it would be an egocentric word, “world view” for the Commonwealth to take the view that the only records that matter to the history of the nation are those that connect to the executive arm of government. It is clearly important to achieve the object of the Act to bring in the courts, to bring in the records of the Parliament and that, in our submission, would point towards the wider body politic notion so as to recognise that there are records important to the history of the nation to be found across the three branches of government.

GAGELER J: Can I just follow up on that? It is really a question I asked Mr Walker. Within a Westminster system, it has always been my understanding that it is the Executive Government, if any part of the government, which is capable of exercising rights of ownership. A court can be conferred with legal personality to hold and dispose of property. So, I suppose, can a House of Parliament but it would require legislation. Absent specific legislation of that nature, is it not the Executive Government alone that can exercise rights and ownership?

MR DONAGHUE: Your Honour, I am reluctant to embrace a submission that the Executive Government alone could take property from a House of Parliament on the basis that the property belonged to the Commonwealth as a body politic and, therefore, the Executive had control over it and, similarly, property of a court.

In my submission, I cannot point your Honour to any authority on that but that would seem to be a troubling proposition that the Executive was able – it must be the case that there are officers of the Commonwealth within Parliament and the courts. I think that would be controversial if they owned property. Then to subject it to the Executive’s control would, in our submission, entrench upon separation of powers considerations.

GAGELER J: There might be public law overlays but if you are talking about ownership of property, is it not always the case that one speaks about ownership being vested in and exercisable by the Crown in right of the relevant politic?

MR DONAGHUE: I think certainly historically that is so. I certainly accept – and I think I submitted yesterday – that there must be someone capable of exercising the rights in questions and one would ordinarily look to the Executive for that. But I am just – I am hesitating in part because this Court in Williams (No 1) made a point of emphasising the distinction between the Executive Government on the one hand and the body politic on the other and the fact that the Commonwealth has a power to do something the Court emphasised does not mean that the Executive has the power to do it. So, I am endeavouring to respect that line in the Court’s jurisprudence which, perhaps, shed a new light or a different understanding on the way that these things had previously been thought to work.

KIEFEL CJ: Mr Solicitor, while you are interrupted, could I just ask a point of clarification? The only documents with which this Court is concerned are those placed in the custody of Archives by, then, Mr David Smith, is that right ‑ ‑ ‑

MR DONAGHUE: Yes, yes.

KIEFEL CJ: ‑ ‑ ‑ which are referred to in Justice Griffiths’ judgment as series AA1984/609 – which is to say that we are not concerned with the bundle – the near complete set of M4513.

MR DONAGHUE: You are not, that is correct. That was in issue earlier, and is not now in issue. So yes, you are concerned with the documents lodged under the instrument of deposit at page 59 of the book of materials, which are the carbon copies and the originals from the Queen.

KIEFEL CJ: Thank you.

MR DONAGHUE: Your Honours, can I resume at paragraph 10 of our outline. I had taken your Honours yesterday to the tension that would exist between our friend’s law of public office concept and gifts to parliamentarians and I want to briefly touch on the interaction of that submission with the understood position in relation to records of judges.

The fact that there is an interaction between the Archives Act and the records of courts, including this Court, has been recognised by this Court, as your Honours would know, in the records authority that has been agreed between this Court and the Commonwealth Archives. The way one gets to that conclusion, there seem to be two possible paths – and this really touches on the exchange I have just been having with your Honours. One path would be simply that the courts, including this Court, are part of the body politic of the Commonwealth.

If that is not the right path, then the Court would only be within the ambit of the Act by reason of being a Commonwealth institution. And your Honours will recall that paragraph (f) says:

Commonwealth institution means:

. . .

(f) a Federal court or a court of a Territory –

It does not say “the Federal court”, it says “a federal court” in that way. And it is, we think, the proper reading of that provision that it is intended to embrace all Federal courts, including this Court.

But by one path or the other, it seems to be recognised that some documents of this Court are Commonwealth records. Now, obviously that is right with respect to published judgments, as your Honours this morning have pronounced judgment and published your reasons and the orders for doing so; they are entered into the records of the Court and they plainly thereafter are Commonwealth records. But equally it is, in our submission, obvious that in the course of discharging judicial office within chambers, there are many documents that never become published in that way, or that are never transferred outside of each individual Justice’s chambers.

So when any of your Honours ‑ if you were to write by hand, take a blank sheet of paper and commence to write a judgment, the document thereby created, in our submission, belongs to the judge personally. It can be added to, it can be altered, it can be shredded, if a new thought occurs to your Honours overnight, entirely as you see fit, without there being any external degree of control over that document by reason of the fact that it is a Commonwealth record.

If it is a Commonwealth record, it cannot be destroyed or dealt with entirely as one sees fit without some overlay. Similarly, memoranda between judges, memoranda to associates, draft speeches, all of those work products are connected with the discharge of judicial office but, in our submission, belong personally to the judge.

And that is, in our submission, a simple application of the Breen v Williams passages I took your Honours to yesterday. The fact that there is a connection between the production of documents and function does not mean that the person on behalf of whom the function is performed, here the Commonwealth body politic, is the owner of all of the work product prepared in the course of discharging that function.

If a solicitor, a doctor or a land valuer can create records when they are discharging their duties and they can own those documents personally even as against the client who paid for them to do the work, why would a judge be in a worse position as a matter of the application of the ordinary law? But notwithstanding the evident possibility that records of the kinds I just described might be fascinating from a historical point of view, of great interest to historians in the future and part of the archival resources of the Commonwealth, in our submission they are not Commonwealth records.

EDELMAN J: What is the difference then between the scope of authority or perhaps a narrow view of scope of authority test that you eschew, and your approach of an emanation of the Commonwealth, particularly in circumstances in which this Court has said in the NT Power Generation Case 219 CLR at 163 that the expression “emanation of the Crown” has been much criticised, and the earlier cases which had used the concept of an emanation had done so in the context of describing an ageless authority.

MR DONAGHUE: The difference that we are seeking to identify is a difference that recognises that while acting within the course of authority a public officer – whether a minister, a judge or the Governor‑General - will generate many documents. The notion of acting within authority in this context is really a public law concept, and I think that is how it has been used by our friends when they talk about discharging the functions of the Governor‑General’s office. They are linking that back to section 2 when they are saying this is a function that the Governor‑General performs in a public law sense.

But that connection to being within power or authority in a public law sense in our submission does not intersect with the ownership of documents produced, absent some principle that draws that link. The fact of being in power does not draw it. What we were seeking to do - and that is for the reason that I identified yesterday, that insofar as there is a law of public office that might, it is only about property created through the misuse of an office.

But we were seeking to acknowledge – albeit that on our submission it is not relevant on the facts here – that if it could be shown that in performing a particular function – or creating a particular document – the public office holder was acting as the body politic and an example of that would in my submission be the exercise of the judicial power of the Commonwealth when your Honours give judgment that then creates binding obligations for people who exercise governmental power.

EDELMAN J: Is that anything more than the final performance of an Act within the scope of responsibilities or authorities?

MR DONAGHUE: It is more because it is not only the final but the operative. It is the exercise of power, whereas prior to that point, to take I hope not an apocryphal example, I believe it is said that there were occasions when Justice Barton wrote a judgment and when judgments of this Court were delivered orally, would sometimes sit upon the bench and hear the Chief Justice give judgment and decide that there was no reason to act. So that rather than read the judgment that right up until that moment would have been about to be manifest as a public manifestation of the exercise of judicial power he put it away and said I agree.

Now, in our submission, there is no question that Justice Barton, if that be true, were performing his judicial office throughout that process, but he was entitled at any point, up to the publication of the judgment, to change his mind. And, in our submission, the Commonwealth never owned that draft, right up to that point, and it would have been open to his Honour, if he wished to do so, to take any such documents away, to destroy them so there was no historical record of them, or to keep them, when they would potentially have been of great historical interest later if to be found in the Archives.

So that is the distinction I am seeking to draw, but it ultimately does not matter in this case unless your Honours were to think that in the private and confidential correspondence with the Queen, in which Sir John engaged, that was an emanation of power in the sense that I have just identified, and the point of the final part of my submissions is to deny that link. So if your Honours accepted that submission then that would be sufficient.

Your Honours will no doubt be aware, and I will not take your Honours to it, but in the Records Authority agreed between this Court and Archives, which we have given your Honours at tab 70 of volume 5, it is expressly recognised that:

A Judge’s own papers may be disposed of as and when their owners or controllers deem appropriate. These records may be of great interest and value because they complement the Court’s records and have national importance as archival resources –

but nevertheless, they can be taken. So the notion that a judge will own papers, including but not limited to speeches and correspondence, in my submission, also draft judgments, is consistent with the way this Court has interacted with Archives.

NETTLE J: Mr Solicitor, in the case of a Government Department, before the final decision is made, there will be lots of backwards and forwards‑ing within the Department, memoranda records and so forth. On your test, would they be Commonwealth records?

MR DONAGHUE: Yes, all of them, because, assuming that they – well, all of them, to the extent that they were created by public servants, again on the application of Breen v Williams, documents created by an employee or agent belong to the principal. So that accounts, without any complication, for the vast majority of Commonwealth records, because, in our submission, if a departmental Secretary prepares a minute for the Minister saying, can you please consider one, two, or three, and if you agree, sign the attached letter, and the Minister signs the letter and then the file goes back again, the Minister has never owned those documents. They were not created by the Minister, so there is no complication there, they were created by employees on behalf of the Commonwealth body politic, and they are all owned thereby.

The only complexity ‑ and it was when I was seeking to draw this out yesterday that I perhaps created confusion – but, in our submission, it only gets any more difficult where the Minister is personally creating the documents, which would be a narrow category, and is, in that category, where, if the documents are usually even in that category, if it is an official document in the way of governments, there will be many copies of that official document and those copies would be Commonwealth records, one would expect. The reason the copies would be created would be to file, be filed.

But if the Minister personally creates a document as an emanation of the Commonwealth, we would accept that even then, the document would be a Commonwealth record. But if the Minister, by contrast, is not an emanation of the Commonwealth, is doodling in a Cabinet meeting or is provisionally drafting a speech, even an important speech to be given in the Minister’s personal capacity but then never gives that speech, in my submission, in that context, the document is created as the Minister’s and nothing ever happens to transfer ownership of that document to anyone else, so it stays the Minister’s document and it forms part of the Minister’s personal files, can be taken away by the Minister when the Minister leaves. That is the line we are seeking to draw.

NETTLE J: Will that work equally well if one were to accept Justice Gageler’s concentration of legal power, of disposition?

MR DONAGHUE: I believe it does, your Honour. At the moment, I cannot see why it would not work equally well.

NETTLE J: In that event, would one be able to say that true ownership, as it were, vests in the Crown in right of the Commonwealth, but the legal concentration of power, of disposition, vests with the particular Department or agency?

MR DONAGHUE: Yes. I am not sure exactly what vests means in that context but “is able to be exercised by” in relation to the documents. Most of the documents, in the way that I have just described to your Honour, but in the case of the ministerial speech that concentration of power never attaches to that document because the Minister created it him or herself and held onto it. So, that is how we submit that your Honour should approach it.

Your Honours, in the courts below – and I am now moving to paragraph 11 of our outline – our friends place some reliance upon one of the judgments in a complicated line of litigation concerning President Nixon’s papers. The particular judgment that they relied upon, Nixon v Sampson is, for reasons we have addressed in writing, not good law even in the United States.

But, can I ask your Honours to go very briefly to the case that does represent the law in the US, which is Nixon v United States, it is in volume 4, tab 34, 978 F.2d 1269 in 1992. It is a judgment of the US District Court of Appeal for the District of Columbia constituted by three justices, including Ruth Bader Ginsburg. The judgment of the court is given by Justice Edwards.

If I had time, your Honours, I would take you through this judgment in some detail because it is a truly fascinating judgment, as a historical document it is well worth a read. What it holds, as your Honours will see at 1270, and the bottom of the left‑hand column, what it was about was that Congress in 1974, just after President Nixon left office, passed an Act called the Presidential Recordings and Materials Preservation Act, or the PRMPA, which severely restricted former President Nixon’s rights to his presidential papers.

President Nixon challenged the validity of that Act. That challenge went up to the Supreme Court and failed. And it, having failed, President Nixon then said, well, the Act as now held to be valid involved an unconstitutional taking of his property, which entitled him to just compensation; there was an historic shipwrecks’ clause in the PRMPA. And this case was the appellate determination of President Nixon’s claim for compensation for the taking of his papers and he won because the court found that those documents were ‑ and you will see in the right‑hand column on 1270 about point 3:

Upon reviewing the long and unbroken history relating to the use, control, and disposition of presidential papers, we are convinced that Mr. Nixon had a well grounded expectation of ownership. In the light of this history, we hold that Mr. Nixon, like every President before him, had a compensable property interest in his presidential papers.

Now, what did they mean by “presidential papers”? You see that at the bottom of that page, referred to in shorthand as “the presidential papers”, containing:

information and communications covering official, political, and personal matters.

And then I think in footnote – they go on to talk about, in a little more detail, what was there. But it:

included correspondence of the President and his staff, reports relating to the political activities . . . copies of documents pertaining to the executive branch . . . drafts of speeches –

et cetera. And your Honours will see in footnote 4:

These documents were kept in either the “central files,” which housed materials relating to the general affairs of the Office, or the “special files,” which housed documents containing the President’s own handwriting or were otherwise considered the most confidential.

So it was a very wide category of indeed 42 million articles, it was much wider than the category in issue here, but it clearly included official documents, including official documents in the President’s own hand and yet the President owns them all.

Now, I do not have time to take your Honours through it, but there is a detailed examination of the history which reveals, amongst other things that presidents routinely in the United States take everything from their file room such that when – I think it records that when President Eisenhower took office, there was one document left for him in the White House which gave some instructions about what to do in the event of a nuclear emergency, but nothing else. All of the records were taken by the outgoing presidents as their personal property. This is not personal property of non‑trivial value because the history reveals - and you see this at 1278.

Sorry, your Honours, just before I get to this - our friends dismissed this case in part on the basis that they say it was not argued that the presidency is a public office or in the nature of a public office. But what was argued, you see at 1276, which was the left‑hand column at about point 6, halfway through paragraph [6]:

When confronted with the historical practice, the District Court concluded that previous Presidents were merely acting as custodians of what are essentially public records . . . The Government appears to have embraced this position on appeal. We reject it because it is flatly at odds with the historical record upon which it purports to rely.

So it was put, in effect, this is a public trust and all of these documents are part of the history of the nation. The court traced the history, which is obviously different but here we submit similarly clear in the past treatment of records by Governors‑General.

KIEFEL CJ: Mr Solicitor, is the relevance of this to draw some analogy between a convention respecting presidential property in the United States and that affecting the Governor‑General in Australia?

MR DONAGHUE: That is part of the relevance. So we are trying to do two things. One is that one sees a mode of reasoning adopted in this judgment that says in the case of a unique set of documents, part of the way we work out who owned them is by looking at the way they have been treated by the historical actors in the past who had records of this kind. To the extent that that mode of reasoning commended itself to your Honour, the evidence I referred you to yesterday about Sir John’s views, and the palace’s views, and the Commonwealth’s views would all bear on that mode of reasoning.

But we would also deploy it to resist the notion that there is something absurd or unthinkable – which is I think how it was put yesterday – about the notion that a public officer might get to keep records of the discharge of their office. Far from it being absurd or unthinkable it is the law in the United States in relation to the highest public officer of all, in circumstances where these records are so valuable that the arrangement that has developed – and you see this at 1278 – developed from a time of - Franklyn Roosevelt was the first, was that a deal has been done whereby the President who owns all of these valuable records will transfer them to the United States in return for the United States agreeing to build a library in honour of the President in which to house these materials and keep and look after them.

So that is the origin of the presidential library practice. It is a trade. In modern parlance I could call it a quid pro quo for the transfer from the President of this valuable asset to the government. So it is not, in our submission, absurd to recognise that the holder of a public office might have private property interests – including private property interests far exceeding in value those that the Governor‑General would have had.

I will not read it to your Honours but the dispositive or the final conclusions of the court which we do reply upon are mainly found at pages 1280 and 1281 and then the ultimate conclusion at 1284. At the top left of the page:

the District Court’s “public trust notion” is antithetical to the history of presidential papers. History, custom, and usage‑relating to former Presidents and to those dealing with former Presidents‑indicate unequivocally that presidential papers have been treated as the President’s private property.

Their Honours also note, in the course of this history I passed over, the same view in relation to members of Congress and members of the Supreme Court, all of them are regarded as keeping, having property rights in their own private papers.

GAGELER J: There is quite a story to be told about Sir Winston Churchill’s papers. Have you looked into that at all?

MR DONAGHUE: No, I have not, your Honour, no. I do not know if it is consistent or inconsistent with this.

GAGELER J: I am not sure either. But they had to have a – raise public funds to purchase them back from the family.

MR DONAGHUE: Well, indeed, very much consistent with the same idea. There is also, in the course of this discussion, an account of the practice of British ambassadors to the United States keeping records, very interesting records of their own views about the US administration, and owning those privately. So the history just does not support the idea, in this country or in the United States, and by the sound of it also in the United Kingdom, that documents generated by the holder of a public office thereby in some way belong to the body politic – and our friends are unable to bridge that gap.

Now, finally, your Honours, paragraph 12 of the outline and following, the specific position of the Governor‑General. Your Honours will, just to situate this in the context of our argument, our starting point is the common law relating to the ownership of correspondence. Sir John owned the correspondence, applying that common law.

That conclusion is buttressed by the convention that I addressed yesterday, by the common understanding of the parties, and we submit also by the drafting history. So it would only be if there is a constitutional or public law overlay or principle that alters that position that we submit your Honours could conclude that these letters are Commonwealth property.

In our submission, there is not anything about the representative role of the Governor‑General that would require any alteration to the position that should be arrived at, applying the principles that I have already identified. The occasion on which this Court has examined in most detail the responsibilities and office of the Governor‑General is in Kline v Official Secretary [2013] HCA 52; (2013) 249 CLR 645, and I do seek to take your Honours to that case. It is volume 3, tab 15 of the joint book.

This case, as your Honours are aware, concerned the FOI Act – so obviously a different Act to the Archives Act – but it is worth bearing in mind that the development of those Acts was tied together. They were developed in parallel, the FOI Act and the Archives Act, you have seen the Senate Constitutional Committee report that looked at both of those Acts at the same time and in the second reading speech for the Archives Bill - I will not take you back to it, but it is page 1183 - Senator Evans said that there had been a “carefully co-ordinated” approach between the Archives Act and the FOI Act, effectively on the basis that the FOI Act was dealing with access to documents in the first 30 years, and the Archives Act was dealing with access to the same documents thereafter.

So, while addressing a different legislative regime, there is that nexus. In the joint judgment of Chief Justice French and Justices Crennan, Kiefel and Bell, at paragraph 11, your Honours identified or discussed the role of the Governor‑General, linking to section 61 vesting the executive power in the Commonwealth and providing that it is:

exercisable by her representative in Australia, the Governor‑General.

Referring to the grant of honours, which was what was in issue in this case:

These proceedings are not concerned with any of the many powers or functions of the Governor‑General which involve acting on the advice –

That, we submit, is equally true here. These proceedings are not concerned with a function that involves 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.

And it is because of that diverse range of responsibilities that we submit, one cannot simply say if a document is connected to a function, then the Commonwealth owns the document. That will be true if the function is one where the Governor‑General is an emanation of the Crown, but not true in relation to any of the other functions of the kinds recognised there in paragraph 11. Moving on to paragraph 15, there was a distinction drawn in the FOI Act, which, rather than dealing with Commonwealth institutions, deals with agencies:

“agency” is defined to include “a Department” or “a prescribed authority” ‑

“prescribed authority” was defined:

to include the person holding, or performing the duties of, an office established by an enactment. Whilst neither the Governor‑General . . . nor the Office of the Official Secretary is “a prescribed authority”, the Official Secretary is, and is therefore an “agency” ‑

So there was a distinction drawn, bringing in part the Official Secretary, analogous, we say, to the official establishment, but not the Governor‑General personally. And that is a distinction which, as I will show your Honours in a moment, was regarded as significant in this judgment. Could I ask your Honours to move forward to paragraph 33, where you see that very point, so dealing in the dispositive part of the Court’s reasoning, early on it said at 33:

A preliminary consideration of ‑

What is said to be:

considerable contextual significance is that the Governor‑General is not subject to the operation of the FOI Act.

And at the end of that paragraph:

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.

So there, your Honours recognise the Governor‑General as the holder of an independent office, which is a characterisation that we submit is important in rejecting any notion that just because a document is connected to the Governor‑General’s functions, nevertheless the Commonwealth somehow owns them. In paragraph 34, the independence of the office is emphasised, about halfway down that paragraph:

Independence from government and the public is important in relation to the exercise of the various responsibilities of the Governor‑General . . . Furthermore, freedom from interference or scrutiny by members of the public (or other branches of government) is an essential ‑

Now there, said to be to:

the making of decisions in relation to the General Division of the Order.

But, in my submission, equally or more so in the function of direct correspondence with the Queen, who the Governor‑General here represents:

freedom from interference or scrutiny –

including by:

other branches of government ‑

That freedom would be, in our submission, profoundly undermined by any conclusion that all of the records that are connected to the performance of the functions of the Governor‑General immediately belong to the Commonwealth and could thereby be controlled by it. Moving on to paragraph 38:

The Governor‑General, in common with judges, takes note 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 power 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 Minister or the Executive Council.

There is the sui generis notion to which Mr Walker referred yesterday and which we also embrace. Finally, in paragraph 41, at the end of paragraph 41, picking up a comment your Honour Justice Keane made yesterday dealing here with the non‑application of the FOI ACT to various documents - it is at the end of that paragraph, the Full Court is said to have correctly:

apprehended this distinction in s 6A(1) correctly, referring to the latter class of documents as relating to the office “apparatus” which supported the exercise of the Governor‑General’s substantive powers and functions -

which we submit is an equally apt way of describing the Official Secretary. So, I have moved over that quickly but in our submission the paragraphs I have emphasised, particularly at 34, 38 and 39, are difficult to square with any notion that a connection with the performance of the functions of the Governor‑General given their sui generis character, given that some involve official exercise of powers but some do not, notwithstanding they are part of the Governor‑General’s functions could lead to some need to depart from the private law position that would allow the Governor‑General personal ownership of all records created personally by him that the Governor‑General chooses not to transfer to the official establishment.

So, as with the Minister, and as I answered to your Honour Justice Nettle, documents that are created by others and come in and out through a federal Executive Council process on ordinary property principles would never belong to the Governor‑General and so would not be captured by the argument I am now making.

Those documents belong and would always belong to someone else. If the Governor‑General prepares it him or herself but gives the document – perhaps in order to give it operative effect to the official establishment, or to be entered into the files of the official establishment – then property passes and it becomes a Commonwealth record. But if held closely and personally and never transferred – the Governor‑General never intends to transfer ownership – then at least in cases where the Governor‑General is not acting as an emanation of the Crown, the ownership stays where it starts. It stays with the Governor‑General.

None of that is altered by the representative character of the Governor‑General. Indeed it is, in our submission, confirmed by it, because, as your Honours have seen, I do not need to take you back to section 2, but the Governor‑General is there appointed to be the Queen’s - Her Majesty’s representative in the Commonwealth.

What that means has evolved over time. At the time of Federation, it gave a much greater role to the United Kingdom Government, but as a result of the Balfour Declaration and then the Imperial Conference in 1930 it came to be accepted that the monarch would act only on the advice of the Australian Prime Minister, including in the appointment of the Governor‑General, so instead of being on the advice of, up to that point the appointment had been on the advice of - the appointment of the Australian Governor‑General had been on the advice of the United Kingdom Government. That ceased to be the position as at 1930.

But even though the Queen was to appoint the Governor‑General on the advice of the Australian Prime Minister, it was agreed at the Imperial Conference of 1930 that that would only be after informal consultation between the Prime Minister and Her Majesty, so Her Majesty was to be given some capacity to influence the person who was to be her personal representative, not the representative of some other government, but her personal representative. That is the origin of what we have called, in our submission, the two interfaces of the Governor‑General’s role.

It was to be, as the framers put it, and we have given your Honours references to the Convention Debates in our submissions in footnote 31, a link between the Queen and the new body politic, the Commonwealth of Australia. The capacity for the Governor‑General to perform that linking function, that representative function, in our submission, depends very much on the relationship between the government, Governor‑General and the Queen.

Part of that relationship is the content and the frequency of the correspondence before them which, in our submission, is absolutely and entirely a matter for them. There is no external rule or duty that requires the Governor‑General to report in a particular way or with particular frequency and, indeed, Sir John said as much, I will not take your Honours to it, but in page 67 of the appellant’s book of materials, which is the journal, Sir John wrote there:

There are no rules about how often or in what detail reports are to be made.

Not only are there no rules about that, but there is clearly no rule that requires the Governor‑General to copy their outgoing correspondence. So the whole idea that underpins the appellant’s case, that these documents belong to the Commonwealth because they were the exercise of power in some way is not right, would not be right in relation to the copy sent to the Queen, because it was part of this personal representative function, but obviously is not right in relation to the copy that Sir John kept for his own personal records because it is the one he sent that was the exercise of a governmental function. The fact that he wanted to keep some record for himself, because it was akin to a journal was absolutely, in our submission, a matter for him.

So the conclusion that there is not an emanation from the Crown here or an exercise of power in the process of conducting this correspondence in order to facilitate the representative function, is confirmed, in the way that we put the case, by the fact that it is impossible for that correspondence to involve any exercise of power in circumstances where the Queen herself is unable either to exercise any Executive power in Australia or to direct the Governor‑General as to its exercise.

So our case might be a little harder, I do not need to try to work out what the answer would be, if it were possible that the Queen might have directed Sir John Kerr to exercise the reserve powers to dismiss the Australian Prime Minister, because if that were the topic of the conversation, then I would have a harder case because of the emanation idea and the fact that these letters might involve an exercise of public power, but they do not, because the Queen cannot exercise power of that kind, as has long been recognised.

Indeed, the Queen herself confirmed that that was her view in a letter that, again, I will not take your Honours to, it is extracted in volume 5, tab 56 of the joint book of authorities in a work by Renfree. But where the Queen says ‑ or the Queen’s Private Secretary writing to the Speaker of the House of Representatives in Australia said, quote:

The Queen has no part in the decisions which the Governor‑General must take in accordance with the Constitution.

So that this correspondence was ‑ this is, in our submission, what the Full Court meant when it said this was personal correspondence. It was not personal in the sense that it did not have a connection to function, it did have a connection to the representative function, but it was personal because the representative relationship is personal, to be worked out between these two individuals, and because it does not involve an exercise of power and, in our submission, there was no error in the formation of that conclusion.

Finally, it is clear from documents I have already taken your Honours to, including in particular the letter sent by the Private Secretary to the Queen at page 102 of the appellant’s book of further materials in response to the letter - this is to put the convention on the public record - it is clear that the Queen herself places a high premium on the confidentiality of this correspondence.

That, in our submission, is a significant factor in terms of the capacity of the Governor‑General to carry out the correspondence because if one party of the correspondence, being the Queen, the party in the superior position in the relationship only wishes to correspond on confidential terms an incapacity to correspond on those terms will inevitably impact upon the efficacy of that representative relationship.

In our submission, there cannot be any real doubt that the Queen does place a premium on the privacy of these communications, it being a practice reflected in a convention not just with the Australian Governor‑General but with all of her 15 realms and to that extent we submit that the conventions to which I have pointed underpin the fact that the successful discharge of the Governor‑General’s representative function under section 2 is intimately connected with the ability to carry out private and confidential correspondence with the monarch that does not generate
records that are part of the official records of either government. Unless your Honours have anything further those are my submissions.

KIEFEL CJ: Thank you, Mr Solicitor. Yes, Mr Walker.

MR WALKER: Your Honours, can I start with some of the matters that my friend addressed this morning, particularly in answer to some of your Honours’ questions. They are related, we think. First of all, so far as concerns the problematic use of the word “property” in the definitions that we have argued about by reason of the specifying of entities that are not legal persons, in our submission the suggestion made by Justice Gageler does provide a verbal formula by which what appears to be impossible can, using those words, pass muster.

Now, as I said in‑ chief, as I think my friend embraces as well, we – including your Honours – just have to give meaning to those words even if they appear to have this inherent impossibility involved. The property of something that is not capable of holding property is the impossibility that I am referring to.

Because the duty surely is to try and make it work, not to regard this as in some sense a legislative nullity then, in our submission, the notion of a legally endorsed concentration of power, bearing in mind that each of the non‑property holding capable entities are regulated by law - departments are an obvious example, and each of them – departments again being an easy example – can be said to be the means by which power is exercised, then, in our submission, it makes sense if perhaps more to the bureaucratic than judicial mind to describe a department’s holding as the property of the Department.

Certainly, we submit that that is a means by which the difficult task given to the common law mind by that language can be carried out. However, ultimately it is still the common law, the law that will attribute property. This is not a statute changing the law of property. It is a statute using the language of property in what might be described as an arcane way and it is for those reasons that it remains true - we think our friends take the same position - that what is the property of a department within the meaning of those expressions in the defined terms in the Act is, at law, also the property of the Commonwealth.

I do not want to repeat what we said in‑chief, but your Honours will appreciate that in reply we simply point out that much of the argument of our friends in this part of the case, whether openly described as such or not, does amount to accepting what we point to as the evident overlap ‑ perhaps for more abundant caution - between what we have been calling the two limbs of the definition in question.

In the phrase that Justice Gageler invited counsel to consider from Telstra, legally endorsed concentration of power will obviously include correlatives or incidents of power such as duties or obligations, whether of good practice or of enacted requirement, that bind, for example, the officers of the Commonwealth working within a department with respect to the records of that department.

The next matter, again raised by Justice Gageler, but also with our learned friend by Justice Gordon this morning, concerns a reading and understanding of the word “Commonwealth” in these definitions and, in particular, what, if anything, it indicates with respect to focusing on or not focusing on an aspect of the understanding of the Commonwealth, namely what was referred to this morning as the “Executive Government”.

Now, in our submission, it is important when reading the word “Commonwealth” in an expression “property of the Commonwealth” to recall that it is being used in an Archives Act which contains a description of the archival resources of the Commonwealth which, if I may say so, is not driven by some preference for one or other of the different arms of government - I do not know whether nowadays it is three or four, but we will go for the traditional three - not just the archival resources of the Executive Government, with which this Act is concerned. That would be truly absurd, and is belied of course by some of the specific inclusions within the extended definition of the second limb of the expression in question.

It is for those reasons, in our submission, that there is no purpose – indeed, it is contrary to the evident purpose of the Act – to read “Commonwealth” in the expression “property of the Commonwealth” as if it referred only to the Executive Government. We do not apprehend that our friends embrace that either. Indeed, the last argument I put is one that we would understand our friend as having put this morning as well.

Then, however, one comes to the question which is raised both in subsection 3(5), as Justice Gordon drew to attention, as well as to what Justice Gageler noted today as well as yesterday, concerning who it is called the Commonwealth, that is the plaintiff, in a detinue action. Well, of course, that being action, not legislative or judicial, by the Commonwealth, it is Executive action ‑ what the word “Executive” means ‑ the Commonwealth acts.

Now, there are two ways in which the Commonwealth can act that are not Executive, and they are the other part of the traditional three arms. I do not mean that the Executive is simply, as it were, the residue of everything done and who does it, in the name of the Commonwealth, apart from making laws and judging cases. But I do mean that that is a healthy start to understanding, when you detect the Commonwealth acting, what arm is operating. If it is not judicial and it is not legislative, at the moment at least, it will be Executive, by deduction.

But also positively, as the word “Executive” conveys, that is the arm and the officers by which the Commonwealth, an abstraction but a person, a polity, acts – and it is the word “acts” that I am emphasising. And so it is obvious that every time the Commonwealth sues to get back its property, it is the Executive which is acting as the plaintiff. And it is also obvious, in our submission, that when a Minister does something as a Minister of the Crown, in right of the Commonwealth, he or she is acting in the Executive Government of the Commonwealth.

These are not remarkable; we would submit these are very straightforward propositions. And that is why, of course, the Executive is the subject of a deal of the obligations and rights under the Archives Act as under common law with respect to property. Obligations on officers to deliver, obligations on Commonwealth institutions to deliver to the Archives, et cetera, are obligations imposed by Commonwealth law on parts of the Commonwealth Executive.

But, in our submission, none of that says anything about the resolution of the question whether the Governor‑General’s correspondence as section 2 representative with the Queen is capable of being property of the Commonwealth.

KIEFEL CJ: Mr Walker, will you be some little time in reply?

MR WALKER: Yes.

KIEFEL CJ: The Court will take its break.

AT 11.21 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.37 AM:

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: Thank you, your Honours. Your Honours, before I leave the wording of the definitions in question, yesterday an inquiry was made of our friend as to possible other source or use of the undefined expression “official establishment of the Governor‑General”. I think Justice Gageler wondered whether there might be some resemblance to that and appropriation items. Well, indeed, there has been.

Just by way of an example, the Appropriation Act (No 1) 1980, that is Act No 141 of 1980, its schedule has two items, one numbered 505 the heading of which is “Official Establishments” and the first item of which is “Allowance to Governor‑General for upkeep of Governor‑General’s establishments”, which seems to distinguish between that upkeep and the next item within it, wages of staff, other than Governor‑General’s establishments. There is an ambiguity about whether we are talking about bureaucrats in both of those items or just, as it were, painting and washing in the first one.

But to confuse matters item 506 in the same schedule is headed “Governor‑General’s Office - Salaries and Payments in the nature of Salary” and that would appear, we think, to resemble what at the Bar table we have been proposing would be within the notion of official establishment of the Governor‑General, namely the Official Secretary and those who help him or her from time to time. It is an old expression and you will notice there is no epithet “official” in that description.

In a very early statute, No 7 of 1902 which is enticingly named “Governor‑General’s Establishment” - one of the most exquisitely brief pieces of legislation I have ever read - after section 1 which allows you to cite it by its name, section 2 says there could be £10,000 to defray:

the expenses of the Governor‑General’s establishment in connexion with the visit to Australia of Their Royal Highnesses the Duke and Duchess of Cornwall and York –

That is it. So, it was an expression without the epithet “official”, which was apparently so well understood in those days that the destination and responsibility for spending that £10,000 was not in doubt to Members of the Parliament, or most certainly from time to time is about bricks and mortar, and motor vehicles and transport, and also from time to time will wear mostly the appearance of Sir David Smith and his staff. We would respectfully submit that the way in which the parties have I think in common put the matter to your Honours is the better way of understanding it in this statute.

Could I, in relation to the matter that my learned friend has referred to as the convention, say this? First of all, in relation to the use of any convention, be it constitutional or otherwise, and in private law as well as in public law, there does need to be a modicum of precision in order to understand what it is as a matter of content being said to supply something in the nature of a rule or stipulation and it is to be recalled that the object of argument in this case focuses on applying the expression “the property of the Commonwealth”.

What my friend has not identified is anything which, in terms, or by inference or construction, leads to a rule that what the Governor‑General produces by way of correspondence with the Queen as the Queen’s representative, with the Queen as Queen of Australia pursuant to the relation in the government of the Commonwealth signified by section 2 of our Constitution is the property of the Governor‑General unless and until he or she disposes of it by transferring its property in accordance with ordinary principles of property law.

It surely must be content to that effect that any meaningful or applicable convention would require in order to be a contribution to success by the respondent in this Court. There is no material that supports anything even vaguely like that. At the outset of the what I will call historical conduct upon which our friends rely, could I note - I do not think it is terribly material - that my friend made a slip a couple of times yesterday in suggesting that it was under subsection 6(2) of the Act that these documents went to the Archives. Section 6 of the Act, and the Act, did not exist at that time. It existed when there were later deposits, to which I will come - by others, I mean.

That may not matter in relation to the convention, bearing in mind that my learned friend obviously relies upon historical conduct predating the Act. What we think does matter in relation to this notion of an individual taking action with the intention of transferring property in the individual’s personal property is what your Honours will have seen recorded in paragraph 3 of the majority’s reasons at page 67 of the appeal book, and that which is an agreed fact, namely that the documents in question, when lodged, were lodged by Mr Smith “in his capacity as Official Secretary” - not moonlighting, in his capacity as Official Secretary.

Now, if we are trying to find a convention from historical conduct, that does not look promising material from which to spell out a convention that Governors‑General have these documents as theirs to dispose of as they will, personal property. Rather, it looks as if it is in the discharge of functions and duties understood by the Official Secretary to be appropriate for the Official Secretary that these records of the performance by the Governor‑General of the linking function with the Queen is being lodged with Archives.

Could I take your Honours to some of the material upon which our friends relied in this regard. In the respondent’s book of further materials at page 38 - this is Sir Paul Hasluck. So this is part of the pre‑Archives Act historical conduct relied upon for this supposed convention. You will see that Group 1 is described as:

Copies of despatches written by the Governor‑General for the information of Her Majesty the Queen and the acknowledgments made of them by the Private Secretary to the Queen.

Now that is, with respect, a quite precise way of describing the correspondence of a kind that Sir John later had. The reference to:

The originals are now the property of the Queen –

That is, the dispatches sent to England. There is a reference to what is unquestionably, on the English side at least and maybe on the Australian side, an understanding about what I am going to call confidentiality or secrecy or access or publication, nothing to do with property.

Indeed, if anything, the distinction is drawn between the property that the Queen has by being sent something, and the property which we submit obviously is in the Commonwealth, of what has been retained in Australia – copies of the originals. When one compares the way in which that is described, the first of five groups, with an apparently defining characteristic of Group 2 which refers to:

notes made by the Governor‑General in his personal minute book –

you will note that it is in Group 2, which might be analogised very broadly with the notes made by a doctor which do not become the patient’s, except pursuant to statute, notes made by a lawyer, which do not become the client’s, there Sir Paul asserted that they are the private property of Sir Paul and he gave permission for access.

Now, if anything, that rather indicates that, with respect to what I will call Group 1 documents, there was no such convention or even thought of a need to consider the existence of such a convention as the respondents need in this case.

I will take your Honours then in the appellant’s book of further material - this is at page 77; this is after the Act, and pursuant to the Act, and your Honours will see that it starts by leaving quite open the question of what I am going to call property because it starts by understanding, fairly accurately, the effect of subsection 6(3), which means that it is the legislative scheme, not the arrangements come to with the depositor under subsection 6(2) which will govern access to Commonwealth records, obviously including those that are the property of the Commonwealth.

So here is a deposit by a governor‑general which leaves open the possibility that is said to have been, if only indicatively, concluded or decided by convention. It says nothing about the existence of a convention, there is rather evidence against any such thing.

Back to the respondent’s further materials, at page 52 ‑ 53, our friend derived from that the personal, in the sense of a private individual dealing with his own property, character of these documents from the reporting of Mr Smith to Sir John about the overworked photocopier. Your Honours will recall, on page 53, just above line 30, the reference to the papers being, “in my strong‑room”. It is not to be supposed that we are talking about a strongroom in his private residence, this is his strongroom as Official Secretary.

Similarly, the letter commences by referring to “the original file”. That is a file kept by Mr Smith as Official Secretary. There is nothing in this letter, the subject matter of which is obviously not related to property, which suggests, let alone comes anywhere near supporting an inference of, a convention in the terms that the respondent requires for the purposes of their argument.

BELL J: Mr Walker, just moving for the moment from the question of the convention, but taking up your reference to the joint reasons of the Full Court at paragraph 3, which I think record the terms of the agreed facts‑ ‑ ‑

MR WALKER: Agreed facts, yes.

BELL J: ‑ ‑ ‑now the matter proceeded on agreed facts and on some further evidentiary material.

MR WALKER: It did.

BELL J: In relation to the further evidentiary material, the primary judge made a finding at book 42, paragraph 114, that the copying of the papers, as distinct from their lodgement, was done by Mr Smith in his capacity as agent of Sir John. Is there daylight between the primary judge’s findings and anything in the reasoning of the majority in the Full Court in relation to the lodgement - I am sorry, in relation to the creation of the document, as distinct from the agreed fact respecting lodgement?

MR WALKER: By “daylight” your Honour means a lack of connection, a gap, yes?

BELL J: Yes, yes.

MR WALKER: Probably not, but there is some discord. You will notice that his Honour’s concern in paragraph 114 – for reasons I cannot capture – I was not at trial – was a distinction between being Sir John – that is, the former Governor‑General’s agent – that is why I referred to moonlighting earlier – and being the agent of the incumbent Governor‑General.

GORDON J: In relation to lodging with Archives?

MR WALKER: Yes, in relation to lodging with Archives. In our submission, at best that is a mixed conclusion of fact and law. It is certainly not pure fact. It is not something that the Full Court regarded as, in any way, affecting the position that the parties had agreed – namely, that it was in his official capacity that Mr Smith lodged these documents.

BELL J: I must say, I read the paragraph as directed to the making of the document, the subject of the present proceedings, as distinct from its lodgement. It may be the fact of lodgement has significance itself.

MR WALKER: Yes, it does. Thank you, your Honour, yes. It has just occurred to me I have misread this paragraph by not paying proper regard to the first sentence of paragraph 114. It is reminiscent of some earlier argument yesterday. The copies made to be sent to London are not the documents we are talking about. I am so sorry – I should have made that clearer. So, the answer to Justice Bell is no, paragraph 114 has nothing to do with the documents in question in this case.

BELL J: Because these are documents that were the subject of the bundle deposited by Ms Kibble.

MR WALKER: That is right, that is right.

BELL J: I understand.

MR WALKER: Whereas the documents that Mr Smith lodged with Archives are lodged in his official capacity.

BELL J: Those documents were held in what he described as “my strong‑room” in his letter.

MR WALKER: That is right. They came from the original file.

BELL J: And were copied out of hours.

MR WALKER: Apparently.

BELL J: Yes.

MR WALKER: Yes. In the appellant’s book of further materials, something more is learned in correspondence between Sir John Kerr and Mr Smith after the event. Pages 60 and 61 ‑ ‑ ‑

GORDON J: Did you say the respondent’s or the appellant’s? I am sorry, Mr Walker.

MR WALKER: No, the appellant’s, your Honour. Too much should not be made of this. I am deploying it to challenge and contest the existence of any such convention as the respondent’s case requires. In that third paragraph on page 61, about line 30, in a self‑congratulatory note, Sir John says:

I have always been very glad that I introduced the system during my period of the Official Secretary participating in the preparation of that correspondence.

We know from the opening of the paragraph, that is the kind of correspondence in question in this case – the so‑called palace correspondence:

Your checking of it before despatch and suggestions which you made from time to time as to its contents were very valuable to me, as were your comments on the replies from the Palace.

This is quite specifically with respect to the work of the Official Secretary to the Governor‑General. We see nothing remarkable in that. It seems entirely appropriate, with great respect to all the persons involved, because it is, in carrying out as they were entitled to choose to do so – you do not need rules about this as Sir John himself made clear - the linking function involved in being the section 2 representative, it would be natural of course to involve the Official Secretary so long as you trusted him or her.

Now, none of that comes anywhere near suggesting that this was an entirely private matter which would entail the private ownership of the product let alone that it was because the contents needed to be kept secret that that private ownership would be entailed.

My learned friend several times, in particular towards the end of his address, drew to attention the plainly demonstrated concern at the other side of this correspondence for the so‑called sensitivity or confidentiality or perhaps secrecy of the material but, in our submission, supplies no explanation either by this non‑existent convention nor by reference to any legal or constitutional principle as to why that would conduce to the outcome of private property where there would not otherwise be private property.

Your Honours of course are familiar with the most sensitive and secret documents which are Commonwealth records, including recent Commonwealth records, where it would be risible to suppose that as a matter of functionality, utility, expediency or necessity they should in order to safeguard that secrecy be held in private hands. That, in our submission, in unanchored to any sense of common sense with respect to the conduct of the affairs of the Commonwealth and, as Sir Owen Dixon reminds us, that can be a useful guide from time to time.

Apart from noticing the obvious, which is what we have noted in saying of course Sir John Kerr’s diaries or journals are his, notwithstanding they are connected to the discharge of his duty, Breen v Williams offers nothing to the analysis - to a correct result in this case. Of course it is true that one needs to know both facts and aspects of the relationship between the people in question in order to understand questions of property.

That is why we urge an understanding of the linking function of the Queen’s representative. Being the Governor‑General in the government of the Commonwealth is strongly indicative of the outcome for which we contend. Business of the Commonwealth in a highly peculiar aspect, specific to those two personages which has been conducted in their correspondence, the persons in question being so exalted in the government that they are not being directed by any rules as to how to how they are to conduct that link.

The fact that there are no rules does not mean that it is not a constitutional function for the Queen’s representative to report or give information to the Queen. The fact that the Queen is not entitled, as it where, then to call out the military, that is, does not have untrammelled power or perhaps any power at all except the mythical.....advice is not to the point. The Queen does not cease to have a constitutional position because she does not have, as it were, the power of her Plantagenet ancestors.

EDELMAN J: What about works that are preparatory to that official function, so drafts of letters that were never sent?

MR WALKER: Your Honour, in our submission, assuming any such were kept ‑ and we do not have any facts about that so we do not know the manner in which they were prepared – we may guess that David Smith might have made some comments or notes upon a draft, for example. That is what Sir John perhaps indicates.

It is difficult to know, for example, if they existed and had been preserved by Mr Smith, whether they would be property within the extended sense I have addressed on. With the official establishment of the Governor‑General they may be. That is very hypothetical because we have no facts about any such drafts.

EDELMAN J: I am just trying to work out what the boundary of your principle is, being a principle that is concerned not with mere connection to the office but one which seems to be concerned with performance of an official function.

MR WALKER: Your Honour has invited my friend to consider whether epithets such as “final” or “operative” - one is reminded of some ADJR thinking in that regard - is necessary in order for it to become, as it were, either the act of the Commonwealth or a record of the Commonwealth because something in the government of the Commonwealth is being accomplished by it.

A draft of a minute from the Executive Council that never goes anywhere, assuming it survives – I am not sure good practice does have such things survive – never becomes a minute of the Executive Council. It never does accomplish any act in the government of the Commonwealth.

The question as to whether it is the private property of what - the last person to handle it or the person who claims authorship of most of it or the senior person in the group that drafted it - these are questions which, in our submission, are unworthy of the significance of the correspondence we are talking about in this case.

But if we have to talk about property in those bits of paper, bearing in mind that if they survive they have obvious sensitivity ‑ that is, they are evidently confidential from their nature and the confidentiality is an interest of the Commonwealth – it is discordant entirely to propose that this very confidential draft of a minute, revelation of which would, as it were, show thinking that might reveal Cabinet secrets, for example – so it is clearly confidential to the Commonwealth, made at the expense of the Commonwealth by public servants or ministers or both, the notion that one has to go to a property analysis to protect its confidentiality is absurd.

The notion that because it is only a draft, it is, as it were, available to someone from the panoply of people involved in its making to take away as private property is, in our submission, to enlist forms of analysis borrowed from the private law to an area which is far more simply resolved by saying everybody who was doing this work was doing so as a public servant for the Commonwealth and whatever product was produced, whether it was successful in obtaining an agreed from the Minister or whether it was discarded as not being sufficiently well written, everything is the property of the Commonwealth – simply, without any distinction at all.

NETTLE J: But not necessarily a Commonwealth record.

MR WALKER: That will turn upon further inquiry through the streams of this Act.

NETTLE J: One should think that the Minister would have the lawful right to dispose of drafts, even if prepared for him by his subordinates.

MR WALKER: I refer to good practice. It is not good practice to keep all drafts.

NETTLE J: The drafts, therefore, cannot be Commonwealth records, otherwise he would commit an offence by destroying them.

MR WALKER: That is one of the reasons why the definition of “record” is important. Your Honours will see the word “kept” is there. As Justice Nettle points out, with a draft that is, as it were, apt for destruction it may be very difficult for that to be fitted within the notion of a record as defined. It does not mean that draft, until it is destroyed, is not property of the Commonwealth.

That, in our submission, complicating and weakening the position of the respondents is the ponderousness, the cumbersomeness by which a borrowed notion of intention to transfer property is inserted into the making and keeping, and maybe destruction, of material which would be appropriate for a government file.

Take the example that a number of your Honours raised with my friend – and I apologise to my friend if I have misunderstood his position – that is, communications with, that is to and from, a minister, a minister of the Crown, say, a letter seeking a grant of money, pursuant to a decision that can be made by the Minister. There can be no doubt that it will be Commonwealth money and the Minister will be acting for – that is, it will be the Commonwealth acting through the Minister if the grant is made. For what it is worth, it is the Executive that will be acting – that is the Commonwealth.

In our submission, if there had been any trace of a position by the respondents in argument that because the Minister receives the letter that the Minister is the private owner of the letter, that has been, I think, utterly dispelled by some, I think, clear statements by my learned friend – I hope I quote correctly – that, at least, when the Minister is acting as what my friend called an emanation of the Commonwealth, receipt by the Minister will be there and then receipt by the Commonwealth.

We agree but for this. The problematic, perhaps slippery notion of emanation does not need to be enlisted in the explanation of why that follows. It is simply the Minister is a minister of the Crown and correspondence to the Minister as Minister is not the Minister’s personal property because the nature of the public office in question means that the product of the exercise of his functions is the Commonwealth’s.

Now, if you need to enlist the notion of emanation one first has to note that it has sometimes been thought or said that it is really only a useful piece of figurative language when you are talking about the Commonwealth outward facing – that is, in its dealings with others, not the Commonwealth. So it might work with a mayor writing to a minister seeking money for a sports field.

It becomes more difficult, obviously, in what I am going to call internal dealings – minister to Prime Minister. “I have the request from a mayor, I am minded to make this grant”. Advice, in other words, from a ministerial colleague before a decision is made, a decision by the Commonwealth, that is on behalf of the Commonwealth and binding the Commonwealth.

It is very ponderous to say that the Minister is an emanation of the Commonwealth, consulting with the Prime Minister, another emanation of the Commonwealth. True it is they are both apt, according to circumstance and context, to be treated very straightforwardly as emanations of the Commonwealth. But it is not language which is necessary in talking about dealings between – that is, within the government of the Commonwealth.

In our submission, that letter from the Minister and a response by the Prime Minister in such imagined correspondence will self‑evidently not be part of their prospective personal estates. They will be records of the government of the Commonwealth, that is, it is in the government of the Commonwealth that they were created and in which they have meaning.

Your Honours, just to supplement what my learned friend referred to in relation to these historical records of – to support the supposed convention, an understanding from which perhaps one is supposed to infer some intention with respect to transfer of property, could I draw to attention well after the Act is operating, the way in which what we will call Sir Ninian Stephen’s records were addressed by the Official Secretary, still Mr Smith.

It is in the respondent’s further material, pages 114 to 115. Now, this raises perhaps misunderstanding by the writer of the letter. He is writing as Official Secretary to the Governor‑General, and from the letterhead one supposes, one guesses, that this is conduct of the official establishment of the Governor‑General that we are looking at on these two pages.

If we are, then we are looking at conduct by a Commonwealth institution and if we are doing that, it cannot be a deposit under section 6(2), because those persons from whom the Archive may receive things pursuant to section 6(2) do not include Commonwealth institutions, definitionally.

GAGELER J: I am sorry, is that an argument that you also apply to the letter at page 59, the deposit letter in question?

MR WALKER: This precedes the Act, your Honour, 59 precedes the Act.

GAGELER J: I see.

MR WALKER: That is one of the reasons why I pointed out, probably not material, but occasionally yesterday my friend spoke of the lodging of Sir John’s documents as if they had been done under 6(2) – that is not true. The Act did not exist. So no is the answer to your Honour.

GAGELER J: It is a transitional provision, is it not?

MR WALKER: Section 70 is the transitional provision.

GAGELER J: But it uses the language of “Commonwealth institution”.

MR WALKER: There is no question about that. But your Honour asked me does that, the statutory ‑ ‑ ‑

GAGELER J: Yes.

MR WALKER: No, it does not. No, it does not.

GAGELER J: Thank you.

MR WALKER: But I am not criticising Mr Smith. I am pointing out that the very notion of section 6(2) carries with it the override in subsection (3). It carries with it the possibility that they will in fact be Commonwealth records, not just records that fall within the archival resources of the Commonwealth, but Commonwealth records, including by way of being property.

In other words, this is not conduct that says anything, impliedly or otherwise, about property or understanding as to property. It cannot possibly support this supposed, and we respectfully submit, excessively nebulous convention.

BELL J: What is the significance of Sir Ninian’s instructions to which reference is made in the third paragraph?

MR WALKER: They are par excellence an example of the kind of arrangement that can be, and has been, made under section 6(2).

BELL J: Yes.

MR WALKER: They are also examples of instructions that cease to bind, and indeed must be ignored, in cases covered by section 6(3).

BELL J: Yes.

MR WALKER: Then, in other words, giving a section 6(2) direction says nothing about your belief as to whether section 6(3) will cover. That was the point of Sir Paul Hasluck’s opening sentence, of course.

GORDON J: So just a less formal version of the Hasluck deposit.

MR WALKER: I do not know whether it is less formal, but it does not have as punctiliously an acceptance of the outcome that section 6(3) entails, that is right, your Honour. In our submission, put positively, what this material does support, and what Justice Gordon has just asked me about is a good example of that, is not the convention but positively is a concern on both sides, maybe with ostentatious deference on the Australian side, to the secrecy which is required by the supposed sensitivity of these materials.

As we have argued, secrecy provides no footing whatever for reasoning towards either property as a matter of some tenet of public law, oddly a tenet of public law which would put otherwise obviously public documents into private hands, it cannot do that, or, neither does the material support anything which, in borrowed private law terms, shows an intention on someone’s part to transfer property.

Now, it is none of the language and none of the conduct in question, where the obvious and explicit concern is about secrecy and denial of access in order to preserve secrecy, for a period which presumably bears some relation to the expected lifespan of individuals involved. None of that, in our submission, has anything to do with property.

As to the legislative history, as we understand the argument boiled down against us, it is as the process bisected by an election of Parliament considering this subject matter proceeded, explicit provisions in a bill providing for a general governor‑general exclusion from the provisions of this Act, had as my friend put it, in their place words of explicit inclusion of the official establishment of the Governor‑General in the definition of “Commonwealth institution”.

Now, leave aside the tendentious nature of saying that that inclusion was in the place of a complete exclusion. That is the only extrinsic material, and we do stress the word “extrinsic” material, which our friends call in aid in construing the enacted text, to cut back the first limb by reference to what the second limb does not include and in our submission, for the reasons that we have put in‑chief and I will not repeat, is an untenable reading of the plain words of the enacted text.

But if one is looking at legislative history, in our submission, a far more robust, far more defensible view of what was occurring was that an exclusion of all governor-general material was considered and rejected and rejected. Then the question arose as to, obviously enough, whether the words that were enacted would include it among many other aspects of the documentation that comes into existence in the course of the government of the Commonwealth. That is what this case is about.

These were during the course of the cogitation on these matters in and out of Parliament, including in committee, obviously live in a way that precludes entirely the notion that the reference to the official establishment of the Governor‑General, lo and behold, excludes the Governor‑General and his or her documents from possibly falling within the category of “property of the Commonwealth”.

Can I take you in the joint book of authorities, volume 5, to the record of the Standing Committee on Education and the Arts – one of the committees that my learned friend was referring to in argument yesterday, at 1705. During the course of ‑ ‑ ‑

EDELMAN J: Was there a tab number?

GORDON J: Tab 65.

MR WALKER: I am obliged to your Honour, tab 65. It is page 42 of the Senate print, so there is the left hand of the two columns on page 1705 of the bundle of authorities. Professor Neale is responding to a question which, in general terms, raises the matter of personal papers and Commonwealth records. The Bill does not:

try to define the difference between personal and official. It makes a very narrow definition of a Commonwealth record and leaves it at that but I can show where the difficulty with personal papers comes in. Having said that the Bill does not concern itself with personal papers, it then must be said that some difficulty arises because of what some former Ministers and officials regard as personal papers. I can say categorically that in many collections of personal papers –

Now, he is the archivist, after all:

there exist official government files.

Your Honours would know, as a matter of common knowledge, that some garages in Canberra have documents in them that are definitely Commonwealth records:

I know of one collection which was called a collection of personal papers of an official who was in government employ when he died suddenly while on a special task. There were many hundreds of official files in his possession and yet they were labelled personal papers. The papers of Lord Bruce, for example –

The High Commissioner, former Prime Minister:

are called personal papers. They are copies of every cable sent by Bruce and received by Bruce while he was in office in London –

That is the ambassadorial office:

every record of conversation he had with every ambassador and with every British official, and of records, of which he should never have made, of debates which took place in the British War Cabinet. There is nothing whatsoever private or personal about them. They are copies of official records and in the Bill sense they are copies of Commonwealth records. They were made for his use while he was working at home, which he frequently did -

et cetera, et cetera. Apparently he is not alone. Now, our point is this. There is nothing to be gained from this extrinsic material either to support the so‑called convention, or to support this tortured reading of the relation between the first and second limbs of the definition in question in this case. So one comes, in relation to the convention, to the material that our learned friend relied upon that happens to be quoted by the trial judge, appeal book page 15, paragraphs 12 and 13.

Briefly, I can just – this is the occasion to remake his will. Now, if this is a man who thought that he could simply dispose of these papers as his own property, he certainly does not need to consult Sir Martin Charteris. So nothing in the occasion of, or the purport of this correspondence is in fact relevant of an understood convention concerning private property.

True, it is, he uses – rather expansively – the expression “my papers”. But, one can imagine the shades of Professor Neale might have something tart to say about that. True, it is also, that he clearly refers to documents which are, on any view of it, his personal property. Draft chapters of possible future books is a very good example of that.

Then, one finds in the fourth paragraph, about line 25 on that page, language which indicates a distinction entirely at odds with the use sought to be made by our friend of this subjective discussion by the players, including Sir John. He says:

I can make the appropriate decisions about papers which are exclusively mine, but our correspondence falls into a different category.

I do not have to push that to the point of saying, there is an admission against interest in terms of ownership. That would be – to use a word I have already used – “ponderous”. Rather, it shows that this is simply not material which bears the weight that my learned friend needs to place upon it. Then, when you see the courtier’s response, it has nothing to do with property. It has to do with sensitivity of correspondence between Vice‑Regal representative and constitutional monarch. You will see that in the second paragraph, quoted in paragraph 13, at about line 46. I do not need to take your Honours to it further.

My learned friend drew to attention recommendations of the committee – one of the committees – with respect to excluding the Governor‑General’s material and you will see reference to that by the majority in the Full Court at appeal book, page 74, 75, paragraph 31. But, can I note the emphasis given by the majority in their paragraph 32 to the upshot in the committee? No category of records was to be excluded. So that it simply cannot be said that this is an act to be construed as if it had a history which had, as it were, an engagement favourably with the exclusion of such documents.

The use made of this Court’s decision in Kline by our learned friend, in our submission, fails appropriately, with great respect, to read and apply what your Honours were referring to in construing the restrictive stipulations in the freedom of information legislation to do with the administrative character, or the relation to administration of documents of a
particular kind, which might overlap with documents, say, of the official establishment of the Governor‑General. It need hardly be said, those are not inquiries, answers to which cast any light upon matters of property.

The American reasoning is called in aid by us for its persuasive force, explicitly, in our writing. We have, in a manner I do not need to elaborate now, responded to the arguments in writing against us concerning it in our reply, our written reply. I do not want to add to that. It can be seen that of course we understand things, to paraphrase Laurence Sterne, are ordered differently in the United States, but we rely upon those parts of the reasoning in the decision to which we have drawn attention for their persuasive force.

The more, of course, one refers to the wealth, in a couple of different meanings, of presidential holdings, the massive number and the diverse range, and when one understands that that will certainly include things that would bear very close analogy with a doctor’s notes for the doctor and a lawyer’s notes for a lawyer, then it can be seen little if any purchase can be gained by our learned friends in seeking to apply subsequent adventures of President, former President Nixon in court, to any of the issues in this case, particularly as, as we have drawn to attention, the Supreme Court quite explicitly drew back from questions of property.

But we do not shrink, insofar as our learned friends rely upon those other American decisions, we do not shrink from saying it is quite wrong to start with the idea, certainly to finish with the proposition that what the Americans do with presidential documents casts any light upon the meaning of the expression “property of the Commonwealth” – of the Commonwealth, not property of the Governor‑General, if God forbid that was thought to be some analogy with President at all.

The possibility exists of course that the Americans are wrong. The possibility exists that the notion, a custom having grown up of extracting money from the US Treasury for a shrine to oneself in return for not claiming the capacity to sell the records of your discharge or mal‑discharge of office is not self‑evidently satisfying law, either constitutionally or as a matter of the law or property. But we do not have to concern ourselves with that. That is political or social or commentary.

It is the persuasive reasoning that we respectfully draw to attention, that we urge on this Court. We have nothing to do with a course of stare decisis in the United States or attempting the impossible analogy between Sir John Kerr and Richard Nixon. May it please your Honours.

MR DONAGHUE: Your Honours, might I have one minute to address two matters that arose out of that that I have not had the opportunity to address. I will be very brief.

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: First, your Honours were taken to Sir Paul Hasluck’s papers which are not something that I had said anything about. If your Honours are to make anything of that can I ask that you also look at the document at pages 80 to 82 and 85 to 86 of the appellant’s book of further material. They are letters that deal with subsequent treatment of Sir Paul’s - the different bundles he lodged which make it clear that his instructions were that the Governor‑General/Queen correspondence be dealt with consistently with the other Governors‑General. But I do not need to. The second of those letters is signed by a George Nichols, who was the Director‑General of Archives.

The other point, your Honours, is it was mentioned that I had referred to Sir John’s deposit occurring under section 6(2) and it was put, reasonably, that perhaps I had spoken inadvertently. I had not, but I did omit to expressly make a link that needs to be made in that argument, which is the link found in section 70(3) which is a deeming provision that deems records in the custody of Archives, accepted from a person other than a Commonwealth institution, and it says it will have effect from commencement as if it was made after commencement under section 6(2).

So as a matter of law, no distinction can be drawn between the instrument of deposit that Sir John made and the Sir Ninian instrument of deposit that you saw, and in both cases, the effect of our friend’s argument is, despite the instruction from Sir Ninian and Sir John, because it could not be under section 6(2), the instruction was to be ignored.

KIEFEL CJ: The Court reserves its decision in this matter and adjourns to 2.15 pm.

AT 12.36 PM THE MATTER WAS ADJOURNED