(b) Is one or more of the records constituting AA1984/609 a "Commonwealth record"?
101 Whether one or more of the records comprising AA1984/609 is a "Commonwealth record" within the meaning of the Act turns on whether any such record is the "property" of either the Commonwealth or "the official establishment of the Governor-General". As noted above, the records comprising AA1984/609 were not put before the Court. Accordingly, the question must be answered on the assumption that all the records in that bundle are correspondence in the form of letters or telegrams between Sir John Kerr acting in his capacity as Governor-General and The Queen (including through Her Majesty's Private Secretary), while noting that it is also the agreed position of the parties that some of the correspondence had attachments, such as newspaper clippings (see sub-paragraphs [7] and [8] in [9] above).
102 The term "property" is not defined in the Act. As Archives pointed out, the adoption in the Act of a property-based definition, as opposed to one based on provenance, appears to be deliberate. In its report entitled Australia's Federal Record: A Review of the Archives Act 1983 [1998] ALRC 85, the Australian Law Reform Commission (ALRC) noted at [8.13] that the drafting history of proposed legislation relating to archives between 1974 to 1983 reflected a shift from an "administrative provenance definition" to a property-based definition. The ALRC observed that, following the drafting of the 1974 Archives Bill (which contained a provenance-based definition), successive drafts of the proposed legislation in 1974-1975 "moved from a provenance definition through a custodial definition ('a record that is held in official custody on behalf of the government') to the present property definition".
103 Although it is unnecessary for the purposes of this proceeding to attempt an exhaustive meaning of the word "property", I accept Archives' submission that the reference to "property of" in the definition of "Commonwealth record" picks up the concept of ownership as ordinarily understood under the general law. This view is supported by the following relevant features of the Act.
104 First, the Act itself differentiates between concepts of "possession" (see ss 18-20); "custody" (s 21); "access" (ss 28 and 31) and the concept of "property" in the definition of "Commonwealth record" in s 3(1).
105 Secondly, a construction of the Act which would have it apply to records which were not owned under the general law by the Commonwealth or by a Commonwealth institution would give rise to serious intrusions upon fundamental property rights. For example, Archives is authorised to dispose of or destroy "Commonwealth records" under s 6(1)(h).
106 Thirdly, it is significant that the Act does not contain a provision for just compensation in respect of any acquisition of property, which may suggest that the Act authorises no interference with the property rights of persons other than the Commonwealth or a Commonwealth institution.
107 For the following reasons, I find that, at all relevant times, the documents comprising AA1984/609 were the personal property of Sir John Kerr and were not the property of the Commonwealth (I will defer for the moment the alternative case as advanced by the applicant that the documents are the property of the official establishment of the Governor-General).
108 First, Sir John considered that he, personally, owned the records, as is reflected in his letter dated 22 September 1976 to Sir Martin Charteris (see [12] above). This letter contains expressions such as "my will", "my papers" (which appear twice), "my other papers", "papers which are exclusively mine", "if I were to die", "I would not wish to leave this correspondence in Government House. Each Governor-General takes with him such material", "your records" (referring to The Queen's counterpart records) and "allow [the material] to go into the custody of my literary editors" on certain specified conditions. These expressions strongly suggest that Sir John regarded the correspondence to and from the Palace to be his personal property and which were to be dealt with in accordance with his instructions, including by way of testamentary disposition if not disposed of before his death. Sir John's view that the papers were his personal property is further reflected in the fact that, in his letter dated 3 March 1980 to Mr Smith, Sir John foreshadowed the possibility that there might need to be "some change in the instructions to the Archives" regarding the Palace correspondence.
109 Secondly, Sir John chose to consult The Queen in order to ascertain Her wishes as to his disposition of the Palace correspondence kept by him, and in which The Queen had a reciprocal interest because Her Majesty was a party to that correspondence.
110 Thirdly, The Queen also appears to have considered that the subject records were owned by Sir John and were amenable to disposition in accordance with his instructions, including by way of testamentary disposition. In the letter dated 8 October 1976 from The Queen's Private Secretary to Sir John (see [13] above), there are references to "your papers" in each of the 4 paragraphs of that letter. I also consider that the reference in that letter to the first Lord Stonehaven's son offering to hand over the former Governor-General's papers is an indication that the son had succeeded to ownership of those papers upon his father's death.
111 Fourthly, after consultation with The Queen (through her Private Secretary), it was Sir John's decision to place the correspondence to and from the Palace in the custody of Australian Archives. This was done against a background of the advice he had received regarding the disposal of these and other papers relating to his time as Governor-General.
112 Fifthly, the caveat in the final paragraph of the letter of deposit regarding consultation even after 60 years had lapsed was added by Mr Smith after he had consulted with Sir Philip Moore, The Queen's Private Secretary at the time. Sir John Kerr was advised of the addition of the caveat in Mr Smith's letter dated 20 May 1980 to him (see [20] above). This is not inconsistent with Sir John viewing these papers as his personal property, notwithstanding that he recognised that The Queen also had a strong and particular interest in them.
113 Sixthly, the Commonwealth, through the then Director-General of Archives, recognised that the subject records were Sir John's personal property, as is reflected in the correspondence set out in [15] above and the references therein to "Sir John's papers"; "his non-sensitive personal papers" (which the Director-General considered should also be placed the custody of Australian Archives), and the reference to the "desirability of Sir John making adequate and suitable provision for the disposition of the sensitive papers in case of death or incapacity". These references indicate an acceptance by Australian Archives of Sir John's ownership and complete powers of disposition in respect of the "sensitive papers".
114 Seventhly, the circumstances surrounding the copying of Sir John's papers by Mr Smith at Sir John's request, and the subsequent provision of those copies to Sir John, are also consistent with Sir John's ownership. Although Sir John had ceased to be Governor-General when the records were placed by Mr Smith with Australian Archives, it is plain that he was doing so as Sir John's agent and not as the agent of the incumbent Governor-General.
115 Eighthly, the records in AA1984/609 were dealt with differently from other forms of correspondence sent to and from Sir John after the events of 11 November 1975 and while he was still Governor-General. It is evident from Mr Smith's letter dated 20 May 1980 to Sir John that a particular view was taken in respect of certain correspondence to and from the Governor-General with persons other than The Queen. Mr Smith described such records as "part of the official records of the Governor-General's Office". He said that, in his capacity as Official Secretary of the day, he had responsibility for the safe custody of such documents. Mr Smith also referred to advice he had received from Sir Geoffrey Yeend that Mr Smith had "no authority to release these or any other papers from the official records" (see [20] above).
116 Ninthly, the passing of ownership of M4513 in accordance with the terms of Sir John's will, the ultimate disposition of those records by the executrix of Lady Kerr's estate (Ms Bashford), and correspondence passing between Ms Bashford and the Archives concerning that disposition (which make repeated reference to Sir John's "personal papers", "Sir John's papers", and "Sir John's material"), reflect a shared recognition of Sir John's original ownership of those records.
117 Tenthly, the following material supports the view that, conventionally, correspondence between a Governor-General and The Queen has been regarded as unique and does not give rise to a property interest on the part of the Commonwealth:
(a) this view was taken with respect to personal and confidential correspondence passing between The Queen and Lord Stonehaven, who was Governor-General between 1925-1930;
(b) the same view was taken with respect to personal and confidential correspondence passing between The Queen and Lord Casey when he was Governor-General from 1965-1969;
(c) the same view was taken with respect to personal and confidential despatches between Sir Paul Hasluck and The Queen or her Private Secretary, as is recorded in a letter dated 6 November 1986 to Sir Paul from the then Director-General of Archives (Mr B Cox);
(d) Sir John advised The Queen in 1976 that "Each Governor-General takes with him such material". That is persuasive contemporary evidence of an established practice, as at 1976, which is redolent of ownership;
(e) Sir John's asserted ownership of the subject records in 1976 appears to have been accepted by The Queen (see the letter to Sir John from Sir Martin Charteris at [13] above) and the Commonwealth itself, acting through the Director-General of Archives (see Professor Neale's letter dated 18 November 1977 to Mr Smith at [15] above);
(f) the same view was taken with respect to the personal and confidential correspondence passing between The Queen and Sir Zelman Cowen (Sir John's successor) from 1977-1982 (see the references in the correspondence summarised at [22] above); and
(g) the same view was taken with respect to the personal and confidential correspondence passing between The Queen and Sir Ninian Stephen (Sir Zelman's successor) from 1982-1989 (see the summary of the letter dated 23 July 1991 at [22] above) and the letter of deposit dated 31 August 1990 relating to Sir Ninian's papers, which included "personal and confidential correspondence with Buckingham Palace during Sir Ninian's term of office as Governor-General of Australia". There is an express statement in that letter of deposit that the records were being lodged with Archives under special arrangements in accordance with s 6(2) of the Act.
118 Finally, although not determinative of the issues of statutory construction, it is relevant to note that the construction advanced by Archives produces an outcome which is broadly consistent with the special archival arrangements concerning Royal correspondence in the United Kingdom. In that jurisdiction, such correspondence, together with other private and personal records of The Queen, are housed in the Royal Archives. Access to them is governed by specific agreements. The Freedom of Information Act 2000 (UK) does not apply to such records. Of course, the relevant provisions of the Act in Australia must be construed in accordance with well settled principles guiding the task of statutory construction and not with a view to reflecting the position in the United Kingdom. Having said that, however, recognising that both The Queen and the Governor-General have a mutual interest in the ownership and disposal of their personal correspondence and also having regard to the conventions described above, clear and explicit language would be required to produce an outcome which involved significantly different rules of access applying to such correspondence in the two jurisdictions. For the reasons given above, on its proper construction, the Act produces similar outcomes in the two jurisdictions.
119 I do not accept the applicant's core submission to the effect that the correspondence comprising AA1984/609 should be viewed as the property of the Commonwealth simply because its subject matter relates to the performance of the Governor-General's role and function. First, in my respectful view, that submission adopts an unduly broadbrush approach to the role and responsibilities of the Governor-General. The position of the Governor-General involves the exercise of a wide range of powers and functions, some of which involve conduct and actions taken other than on the advice of the Prime Minister, a Minister or the Executive Council. Notably, in Kline, the plurality drew attention to some of the unique features of the role of Governor-General when their Honours said at [38]:
38. The Governor-General, in common with judges, takes an oath to undertake his or her functions without fear or favour. However, as mentioned, the position of the Governor-General calls for the exercise of a multiplicity of powers and functions, many (but not all) of which are undertaken in public, and some (but few) of which involve making decisions other than on the advice of a Minister or the Executive Council.
120 Secondly, I accept Archives' submission that the personal and private correspondence between a Governor-General and The Queen does not involve the Governor-General exercising the executive power of the Commonwealth within the meaning of s 61 of the Constitution. For the reasons given above, that correspondence has a strong sui generis quality which places it apart from much of the other correspondence sent or received by a Governor-General.
121 Thirdly, I do not consider that resolution of the issues in these proceedings is assisted by reference to authorities in the United States of America which were relied upon by the applicant, concerning the ownership of Presidential materials and tape-recorded conversations involving President Nixon (see, for example, Nixon v Sampson 389 F. Supp. 107 (1975) and Nixon v Administrator of General Services 433 US 425 (1977)). Different constitutional and statutory considerations, as well as well as different conventions, inform the view which has been taken there to the effect that, as a general principle of law, records which are generated, created, produced or kept by a public official in the administration and performance of the powers and duties of a public office belong to the government and may not be considered the private property of the official.
122 Fourthly, however, nor do I accept Archives' submission that the presumption of regularity has some meaningful operation in these proceedings (see [81] above). Archives submitted that the presumption applied so as to produce the result that the various Directors-General who entered into arrangements with various Governors-General concerning the custody of correspondence between a Governor-General and The Queen had authority to enter into those arrangements and, moreover, it should also be presumed that each of those Directors-General held a satisfaction that those records were not the property of the Commonwealth. The presumption of regularity is discussed in cases such as Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164, where McHugh JA said:
The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office… R v Brewer (1942) 66 CLR 535 at 548… And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg [1973] VR 583.
In the circumstances of that case, absent evidence to the contrary, McHugh JA was prepared to apply the presumption of regularity to prove that the secretary of the Western Lands Commission, who executed the grant of a permissive occupancy of land under the Crown Land Consolidation Act 1913 (NSW), had been duly delegated to do so by the Minister acting under s 17A of that Act.
123 The presumption has been considered in other cases where the issue has arisen as to whether it can be presumed that a decision-maker, including a delegate, has been properly appointed and made a valid decision notwithstanding the absence of formal evidence of the person's appointment (see, for example, Ray v Superannuation Complaints Tribunal [2004] FCA 1120; 138 FCR 548 per Goldberg J).
124 I accept that the presumption of regularity has a potentially wider operation in public law. For example, in Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; 170 CLR 649, Gaudron J made the following observations at [22] and [23] in the context of a claim in a judicial review challenge that notices issued by the Deputy Commissioner of Taxation under what was then s 264 of the Income Tax Assessment Act 1936 (Cth) had been issued for an improper purpose (footnotes omitted):
22. It was put on behalf of the respondents that the onus of establishing that a decision was made for an improper purpose lies on an applicant for judicial review and that in the present cases that onus had not been discharged. In particular, it was put that, in determining whether the onus had been discharged, a court should proceed by application of the presumption, embodied in the Latin expression omnia praesumuntur rite et solemniter esse acta, that all things have been done correctly and solemnly. To the extent that presumptions are usefully brought to bear where reasons are provided for decisions the subject of an application for an order of review under the ADJR Act, it may be that the relevant presumption is that embodied in the Latin expression omnia praesumuntur legitime facta donec probetur in contrarium. That presumption, which applies to official acts, is that all necessary conditions and formalities have been satisfied until the contrary is proved. See Jowitt's Dictionary of English Law, 2nd ed. (1977), at p 1283.
23. The ADJR Act does not make express provision as to the onus of proof in respect of grounds of review. In Brunetto v. Collector of Customs, it was said by Toohey J., in relation to s.5(1)(c) of that Act, that "it is incumbent on the applicant to demonstrate lack of jurisdiction". Given that there is nothing in the ADJR Act to displace the general rule that it is for an applicant to establish his or her case, the statement in Brunetto is undoubtedly correct, both as to the ground there under consideration and as to the other grounds of review provided by that Act. More particularly and bearing directly on the present cases, there is nothing in the ADJR Act to displace the common law rule that a person impeaching the exercise of a power on the basis of improper purpose bears the onus of establishing that issue. See, for example, as to the common law rule, Municipal Council of Sydney v. Campbell. And, where the subject matter of a decision falls squarely within the terms of a statutory provision, then, in the absence of evidence establishing improper purpose or evidence displacing all possible permitted purposes, it must be accepted, simply because of the absence of such evidence, that the decision was made for a purpose for which such decisions might properly be made. It is only if the purpose attending the decision must be ascertained by inference from other facts that a presumption of regularity has a role to play. An improper purpose will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power. See Reg. v. Inland Revenue Commissioners; Ex parte Rossminster per Lord Diplock at p 1013.
125 Although Gaudron J was in dissent, I respectfully consider that her Honour's observations represent the law.
126 As mentioned above, however, I do not consider that the presumption of regularity assists in resolving the issues in dispute in these proceedings. The applicant did not dispute that the various Directors-General were duly appointed and would enter into valid arrangements for the purposes of s 6(2) of the Act. Moreover, the issue of whether or not correspondence the subject of such an arrangement was properly viewed by the Director-General as not being the property of the Commonwealth (or the property of a Commonwealth institution) falls to be determined by the Court applying appropriate principles of statutory construction relating to the Act. This task is not constrained by the presumption of regularity. It is difficult to see how the presumption of regularity applies in the particular circumstances here so as to establish the Director-General's satisfaction or state of mind that AA1984/609 was not "a Commonwealth record" as contended by Archives, when there was no statutorily-based archives legislation in place in August 1978.
127 Fifthly, I do not consider that Archives' construction of the Act should be rejected because, on the applicant's submission, this construction means that the documents comprising AA1984/609 remain the property of Sir John Kerr forever and could, for example, be retrieved and then destroyed or otherwise disposed of by, for example, Ms Bashford. As noted above, the documents constituting M4513 were provided to Archives in June 1998 by Sir John's eldest daughter, Ms Gabrielle Kibble. Subsequently, Ms Bashford (who is Sir John's stepdaughter and executrix to Sir John's widow, Anne Dorothy Kerr), signed various instruments of deposit with the Archives relating to M4513. The applicant submitted that this demonstrated that there was potential for AA1984/609 to be retrieved from Archives and destroyed, or otherwise disposed of, irrespective of the clear national interest in those documents.
128 There are several difficulties with that submission. First, in her affidavit dated 9 March 2017, Ms Bashford made clear that when she deposited some of Sir John's papers with Archives on 29 March 2004, it was not her intention or understanding that her instrument of deposit applied to private correspondence passing between Sir John and Buckingham Palace. Secondly, as Mr Whitlam QC acknowledged, insofar as the documents comprising AA1984/609 are concerned, it could be assumed that, by 29 March 2004, Sir John's estate had been fully administered (noting that Sir John died on 24 March 1991 and Lady Kerr died on 16 September 1997). Thirdly, the scenario painted by Mr Whitlam QC failed to take into account The Queen's own interest in the disposal of the documents comprising AA1984/609. Accordingly, I do not consider that this scenario stands in the way of accepting Archives' construction as correct.
129 Sixthly, I do not accept the applicant's submission (as outlined in [59] above) that an inference should be drawn that Sir John considered that he could not withdraw AA1984/609 from Archives, in contrast with his retrieval of 11 cartons of other papers which he had lodged with Archives. There is no evidence to indicate that any of the 11 cartons included correspondence of the character of the documents constituting AA1984/609. Indeed, an inference might be drawn that Sir John was content to have AA1984/609 remain in the custody of Archives because of the special arrangements regarding access to them, as reflected in the correspondence summarised above.
130 For these reasons, the second question, insofar as it relates to whether any of the records constituting AA1984/609 are the property of the Commonwealth, should be answered "no".
131 As mentioned above, the resolution of the second question assists with resolving the first question, to which I now return.
132 As is evident from the analysis of the second question, historically and conventionally, a distinction has been drawn between correspondence between a Governor-General and The Queen arising from the performance of the duties and functions of the office of Governor-General and correspondence between the Governor-General and other persons arising from the performance of those duties and functions. The distinction is clearly drawn in Mr Smith's letter dated 20 May 1980 to Sir John (see at [20] above). The sui generis nature of correspondence between The Queen and a Vice-Regal representative is not, however, confined to Sir John himself. It is reflected in the evidence summarised above relating to the arrangements made by other Governors-General in relation such correspondence, including Lord Casey, Sir Paul Hasluck, Sir Zelman Cowen and Sir Ninian Stephen.
133 In my respectful view, it is both unwise and unnecessary to seek in these proceedings to exhaustively define what papers or records of a Governor-General are "Commonwealth records" on the basis that they are Commonwealth property. In light of the assumption that all the records in AA1984/609 comprise correspondence between Sir John Kerr acting in his capacity as Governor-General and The Queen (and/or Her Majesty's Private Secretary), and it is those records alone which are the subject of the applicant's relevant request for access under the Act, it is sufficient to determine that, for the reasons given above, those records are not "Commonwealth records", as found by Archives.
134 As noted above, the alternative way in which the applicant contends that the documents comprising AA1984/609 are "Commonwealth records" is because they are the property of a Commonwealth institution, being the official establishment of the Governor-General. I will now address that alternative case, which also overlaps to an extent with the terms of the second question.