Hocking v Director-General of the National Archives of Australia

[2020] HCATrans 3

[2020] HCATrans 003

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 TUESDAY, 4 FEBRUARY 2020, AT 10.00 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR T.J. BRENNAN, for the appellant.  (instructed by Corrs Chambers Westgarth)

MR S.P. DONAGHUE, QC, Solicitor–General of the Commonwealth of Australia:   May it please the Court, I appear with my learned friends, MR C.L. LENEHAN, SC, MS D.M. FORRESTER and MR J.A.G. McCOMISH, for the respondent and the Commonwealth Attorney‑General intervening.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   May it please the Court.  As your Honours know from the reasons for judgment in the Full Court, the subject matter of the dispute between the parties concerns records of the Governor‑General, Sir John Kerr, lodged by the Official Secretary to the Governor‑General some months after Sir John’s tenure ceased, as noted in paragraph 3 at page 67 of the core appeal materials.

In paragraph 4 of those reasons, the facts are set out, all of these being common ground, concerning the grounds of a refusal of access pursuant to provisions to which I am about to come.  At page 77, there commences in paragraph 42 of the majority’s reasons critical facts which were agreed.  I have already noted the first, which is numbered paragraph 6 in the quoted extract.  One then sees references to stipulations, to which I will come, under the statutory scheme, concerning access in paragraphs 11 and 12, as quoted.

In paragraph 43 of the majority’s reasons, you find the paragraph quoted, numbered 18, a description of the material which will suffice for present purposes, one sees an important, evocative but ambiguous description, quote:

This package contains the personal and confidential –

I stress that phrase:

correspondence between . . . Sir John Kerr [and] . . . The Queen –

with a reference to the date of the period of Sir John holding that office.  One there sees a reference to:

The Queen’s wishes and Sir John Kerr’s instructions –

Again, I will draw to attention, in a moment, the statutory scheme to which they may be germane with respect to the possibility of access – perhaps the impossibility of access.

On page 78 of the appeal papers, in paragraph 46 of the majority’s reasons ‑ as noted by their Honours as being important to the argument, today as well as then – was the agreed fact that:

The majority of the letters exchanged between the Governor‑General (including by means of his Official Secretary) and the Queen (by means of Her Private Secretary) address topics relating to the official duties and responsibilities of the Governor‑General.  Some . . . take the form of reports to The Queen about the events of the day in Australia.  Certain of these letters include attachments . . . expanding upon and corroborating the information communicated by the Governor‑General in relation to contemporary political happenings in Australia.

And it is, of course, in the background of this case – but with no legal significance for our argument – that the contemporary political happenings in Australia involved, obviously, the tensions brought about by what might be called the denial of supply crisis between Governor‑General and Prime Minister.

The statutory scheme to which I want to draw attention can be picked up in the authorities, volume 1, page 41, the Archives Act 1983.  Section 31(1A) employs critical concepts.  It applies the section which regulates access to what is called a “Commonwealth record” to such a record that is in what is called the “open access period”.  It is common ground that that would be satisfied in this case and such a record that is in the care of the Archives, it is common ground that that would be satisfied in this case.  Then in subsection (1A)(c):

is not an exempt record –

and the question of exemption has not been reached.  The decision of which judicial review was sought was the anterior decision as to whether this was, in its true character, a Commonwealth record.  The question of exemption lies, as the majority of the Full Court noted, in the future.

May I come back to the definitions to be found in section 3(1) of the Act, and picking it up at the foot of page 9 of the bundle, there is, first can I draw to attention, “Commonwealth record”, and then come the critical words for this case, paragraph (a) of that definition, a record means:

a record that is the property of the Commonwealth –

I pause there to say that is the phrase upon which we have built our case as your Honours have read.  Then there comes an important word, neglected, we submit, in the arguments against us and the reasoning of the majority of the Full Court - the word is “or”.  Then there follows another species of description by which something may be a Commonwealth record, that is, that it is the property of “a Commonwealth institution”.  We can leave paragraph (b) aside and I note again the relevance of exempt material in that definition.

We then come back to “Commonwealth institution”, the phrase to which it is necessary to turn because of its use in the second limb of the critical words of the definition of “Commonwealth record”.  It is important to turn to, principally because of the way it is has been reasoned against us in the Full Court, but is in particular the way in which it is argued against us here by our friends.  I stress we will rely upon what I am going to call the first limb, simply “a record that is the property of the Commonwealth”, but in order to understand that, the context includes the defined expression “or of a Commonwealth institution”.  Now, a Commonwealth institution ‑ ‑ ‑ 

KIEFEL CJ:   Mr Walker, just to be clear, are you eschewing any reliance on whatever the official establishment of the Governor‑General means – you are not relying upon that as a Commonwealth institution?

MR WALKER:   You will not see us having said that these are documents that were the property of the official establishment of the Governor‑General, though it is clear from the facts to which I have drawn attention in opening that what we submit is the official establishment of the Governor‑General was the source of its deposit.  Now, there is a finding against us that the character in which that was done was, as it were, of some kind of personal or private agency or assistance by Mr Smith, later Sir David Smith.

GAGELER J:   Is the Governor‑General acting officially part of the official establishment of the Governor‑General?

MR WALKER:   We submit no, in the sense that establishment refers to that which surrounds and assists rather than that which comprises.  So the official, the body of the Governor‑General, the conduct of the Governor‑General himself or herself is not the conduct of an institution but is rather the conduct of the Governor‑General.

GAGELER J:   While I have delayed you, most of these institutions are not legal persons.

MR WALKER:   You anticipate the very next point I was about to make.

GAGELER J:   I will let you make it, Mr Walker.

MR WALKER:   It is a mixed group of what I will call juristic entities in the definition of “Commonwealth institution” and I wanted to draw to attention, reserving the first, the official establishment of the Governor‑General for special attention, I want to draw to attention (b), (c), (d) and (e) - (e) “a Department”.

Now, if there is one thing that young barristers pleading learn very early it is, do try not to commit the solecism of suing the Commonwealth in the name of a Department because someone will ask you, one hopes one’s instructor rather than a court, “What is this thing you call a Department?  Is it a legal person?”  Which rapidly, of course, the answer, “No, it is an administrative mode of organisation, the work of which is carried out by natural persons, the legal entity of which is the Commonwealth”.

So the notion of property, which is, according to the common ground between the parties, generally in this Act to be understood as a term of art, a term of legal art, to be considered through the eyes of the common law, at the very outset suffers some need for a jarring adjustment because there is the concept of property in paragraph (a) of the definition of “Commonwealth record”, and it relates to a Commonwealth institution, and a Commonwealth institution includes those modes of government enterprise called departments, which probably control, have, or use or generate, most of the paper in question.

So this is not an incidental or marginal case, this is a very large case.  And a Department cannot, at ordinary common law, own anything ‑ the Commonwealth will own it.  But meaning has to be given to the notion of the property of a Commonwealth institution.  When one looks at the Executive Council, one sees the description of a constitutional body ‑ not depending on convention, but by the text of the construction – which includes the Governor‑General.

And, obviously enough, the notion of property of the Executive Council is not to be understood in some ponderous and silly fashion as being the common law property of the ladies and gentlemen who, from time to time, including the Governor‑General, comprise that body.  The notion of it being their property as opposed to the property of the Commonwealth is bizarre.

And so the word “property” obviously has some special work to do, not particularly important in our case, with respect to the Commonwealth institutions and it must mean that property is to be understood as involving the generation, use, custody, control of documents which are the Commonwealth documents, but can be attributed to a Department, to the Executive Council, to the Senate, to the House of Representative, et cetera.

And then when one comes down the list, there is the, in other contexts, vexed question of the legal personality of a court, called “a court” in (f).  We have a group of entities called:

an authority of the Commonwealth –

and I will go to the definition called up by that expression.  And then, finally, we have something called:

the Administration of an external Territory –

That, too, is not likely to be fixed within understood common law categories of juristic personality.  It must be treated as such, for the purposes of this Act.  When one comes to:

authority of the Commonwealth –

it is a defined term.  And one sees that it includes a very broad range of entities which are recognisable legal persons, as well as those which are not.  One can simply note, for example, the inclusion of both incorporated and unincorporated bodies or organisations.  One also sees that what is called:

a Commonwealth‑controlled company or a Commonwealth‑controlled association –

is included within that category and one appreciates that that is itself a defined term which in very general terms includes a very broad range of possibilities.  You will see those definitions just above that of “Commonwealth institution”.

Now, we make it clear – in answer to the Chief Justice’s question – that we do not say that this correspondence – what I am going to call the Australian form of the correspondence – copy of the Governor‑General’s letters to the Queen and originals of the Queen’s letters to the Governor‑General – we do not say that that Australian correspondence is a record that is the property of a Commonwealth institution being either the Governor‑General or the official establishment of the Governor‑General.

We put it, we submit, more simply and satisfyingly as simply being correspondence that is the property of the Commonwealth for the reasons you have read, namely, that it is correspondence constituting and produced for the purposes of discharging the functions some may say – Sir John said – the duties of the role of Governor‑General.

We make it clear, because there appears to be, perhaps, some ships in the night between our respective written submissions, but we do not embrace – as the majority in the Full Court appeared to attribute to us – the excessive proposition that, as it were, all paper coming into existence by reason of the holding of office as Governor‑General is the property of the Commonwealth for that reason.  We do not say that.  We certainly do not need to say that and ‑ ‑ ‑

GORDON J:   Where is the line drawn then?

MR WALKER:   The line is drawn by the notion of the correspondence here both constituting and coming into existence because of the discharge of the office or what some, including Sir John, called “the duties” of the office.

EDELMAN J:   Your approach then is reasonably close to the test that one would apply for whether a principle owns the property – owns something created by an agent or an employer owns something that is created by an employee being a test of whether it is within the scope of the duties or the responsibilities.

MR WALKER:   Yes, that is right and, in answer to Justice Gordon’s question about drawing a line, in our submission, as in that comparable but not identical realm that Justice Edelman has raised for consideration of what I might call ordinary civil dealings in this political sphere – political in the sense that we are talking about the office of Governor‑General and the status of Queen - the line obviously puts on the other side, that is not the property of the Commonwealth, documents that would not exist but for the holding of office and the relation between Governor‑General and Queen, but which not uncommonly come into existence, such as ‑ an example that both sides have used for their own purposes ‑ what are sometimes called private diaries or journals in which one might note, for example, that one has sent a letter to the Queen or has received a letter from the Queen.  That would not be the property of the Commonwealth. 

Now, it may be convenient at this point, bearing in mind an area that the Full Court correctly, with respect, put to one side, namely, what people that I would call, not disrespectfully, courtiers, say about the importance of privacy or secrecy of confidentially of dealings the monarch - it is important to note this.  All of this is quite different from and always to be distinguished from matters of secrecy, privacy – in the sense of secrecy, that is not public, in the sense of not published ‑ and confidential material, not to mention any matter to which doctrines of public interest immunity may, in appropriate circumstances, be called in aid because it is clear to demonstration that those are obligations or restraints which do not depend either at all, in most cases, or in the main, generally speaking, on matters of property. 

You happen to own a document that contains information, the disclosure of which would breach an extant obligation of confidentiality you owe to somebody else, then it is elementary that no indicated claim of ownership will defeat the suit for an injunction by the person whose confidentiality is threatened to be breached. 

So the notion that ownership follows the importance of confidentiality is dubious in its logic and to be fair – I need only raise it to put it to one side, maybe to return to it in reply, depending on how our friends proceed because the Full Court did not say, in effect, it ought to be confidential therefore there needs to be ownership of a kind that would reflect that confidentiality.  In any event the notion of private ownership by the Governor‑General – now, the Governor‑General’s inheritors – is necessary or appropriate to protect the desirable confidentiality between the Governor‑General and constitutional monarch is bizarrely inappropriate. 

KIEFEL CJ:   Mr Walker, what importance does the notion of a record –that is, the property – play in an understanding of what is the property of the Commonwealth or an institution?

MR WALKER:   If I have understood your Honour’s question properly, it is central ‑ ‑ ‑

KIEFEL CJ:   My inquiry really is that it is not just what is the property of the Commonwealth.  It is in the archival sense:  what is the record of that aspect of the Commonwealth that might be property?

MR WALKER:   Yes.  Can I go to the definition of “record” in section 3(1).  It has now familiar words to cope with the digital age and presumably whatever else succeeds that.  So it is:

means a document –

et cetera, and then comes an important characterising description:

that is, or has been, kept –

that is ordinary English with respect to records.  You keep records:

that is, or has been, kept by reason of:

(a)any information or matter that it contains or that can be obtained from it –

and this may appear, with great respect to the drafters, a little ponderous, but it is clearly a careful way of trying to describe things of a kind which will not encompass everything that is held, for example, by a Department.  So it is:

been, kept by reason of:

(a)any information or matter that it contains or that can be obtained from it; or –

it is:

been, kept by reason of:

. . . 

(b)      its connection with any event, person, circumstance or thing.

One is tempted to say, perhaps a bit flippantly, “souvenirs”, as it were, of an occasion.  We know that that is filled out in presently ‑ in material detail by the Acts Interpretation Act definition of “document”, which does not add anything to the argument so far as we are concerned.

Now, given that a record has that – I will call it informational or connectional requisite character ‑ one then goes back to the definition of “Commonwealth record” to note that the word that starts the first part of the definition, “a record that is”, that word “record” plainly always requires a consideration of what I am going to call the information because the keeping of the certainly putative record has to be “by reason of”.  Now, that means, I suppose, either systemically or ad hoc.  It is possible, from the nature of the putative record, to find, to conclude, that it is found where it is found – that is, it has been kept – because of some character of the information.

Can I return again to the question the Chief Justice asked concerning the official establishment of the Governor‑General.  It is the case that, in our argument, we distinguish between the official establishment of the Governor‑General and the Governor‑General himself or herself.  We do not, in our argument, though the words invite it, see any significance of any kind in this legislative scheme between the undefined term, the ordinary English of “official establishment of the Governor‑General” on the one hand and whatever it is that may be contrasted with the official establishment of the Governor‑General by some other epithet. 

It would be bordering on the fatuous to propose that there was any concern here for what I will call the domestic household of the Governor‑General.  And so it does follow that we are reading the word “establishment” as referring to those who surround and assist.  If you like, this was an anticipation of what later happened with respect to legislation for just those functions.

GAGELER J:   Is a thing a record at the time of its creation or receipt or does it become a record?

MR WALKER:   It becomes one upon being kept, at the instance of being kept.  So I think the short answer is yes, it does, because it can be said that upon being created it is being kept from thenceforth.

GORDON J:   That may be many years later.

MR WALKER:   The period may be many years, but it is most unlikely that it can be said that many years could intervene between creation and keeping.  There may be many years between the creation of a document and when it first comes into the possession, say, of a department, where it has a connection with an event that might be long distant.  Historical records may come into the possession, may come to be the property of a department within the odd meaning of that expression, many years after its creation, but in terms of documents such as in the present case, where the documents come into existence constituting and recording the performance of a function or duty then, in our submission, in answer to Justice Gageler’s question, it will be kept thenceforth, unless it is destroyed, of course, which has its own aspect.

GAGELER J:   What prompts the question is the evident chronology of the creation and receipt of these documents by Sir John Kerr.

MR WALKER:   Yes.  Creation will only apply to his letters, his receipt for her letters.

GAGELER J:   Yes, and then, evidently, Sir John gave those documents to Sir David Smith, who I understand you would accept as part of the official establishment of the Governor‑General.

MR WALKER:   Not merely accept but assert, yes.

GAGELER J:   So my question is, is it possible that the character of the documents may have changed in the possession of Sir David Smith?

MR WALKER:   Yes, yes, it is and that partly comes from the notion of something that has been kept by reason of the examination of those matters which enable you to answer yes or no to the question raised by reason of - may well include what I will call handling or course of dealing, including the character of people with custody.

NETTLE J:   So you do rely upon the official establishment of the Commonwealth?

MR WALKER:   We have not argued that at all, as your Honours have seen.  We simply say these were, from the time they were kept by the Governor‑General, that is, upon the making of the copy of his letters‑ ‑ ‑

NETTLE J:   Or the receipt from Her Majesty.

MR WALKER:   ‑ ‑ ‑and the receipt of the Queen’s letters, the Queen’s Private Secretary’s letters, they were a record that was the property of the Commonwealth thenceforth.  That did not alter by being handled by a personage who is plainly the most obvious embodiment - there was then, would be now - of the official establishment of the Governor‑General.  Can I remind your Honours that one still has to always satisfy the question of property? 

Now, I have drawn to attention the oddity of the use of the word “property” that we have, as it were, at the Bar table ostentatiously said this common law, well, sort of cannot be completely, being attached to something which is not a juristic person, capable of, in and by that name, owning things, not without statutory intervention, which has not occurred relevantly.

NETTLE J:   Is it conceivable that there would be a record of the official establishment of the Governor‑General that would not be the property of the Commonwealth?

MR WALKER:   Not to us, no.

NETTLE J:   Then what is the necessity for paragraph (a) of the definition of “Commonwealth institution”?  If that is covered by Commonwealth, why does one need paragraph (a)?

MR WALKER:   For the same reason or non‑reason as one needs paragraph (e).

NETTLE J:   But might it not be to indicate that the reach of “Commonwealth record” is, to some extent, limited to the source from which these things emanate, that is to say, if it comes from the official establishment then it is within the meaning of “Commonwealth record”,, but vis-à-vis the Governor‑General, insofar as it does not, it is not?

MR WALKER:   No.  That is, with respect, we think a form of textually‑based argument against us that I will address, and primarily in‑chief.  That is the argument I had in mind when I drew to your Honours’ attention that the word “or” in the first part of the definition of “Commonwealth record” should not be overlooked.

NETTLE J:   Well, just so.  I mean, if it is within Commonwealth, you do not need “Commonwealth institution”.

MR WALKER:   No.

NETTLE J:   But if you do need “Commonwealth institution” it is presumably because it is not within Commonwealth.

MR WALKER:   I accept that.  That is logical, and I accept that entirely.  If it is not the property of the Commonwealth then it will only be a Commonwealth record if it is the property of a Commonwealth institution, and, relevantly, the only candidate in that list for this case would be the official establishment of the Governor‑General.

NETTLE J:   And yet you say any record of the official establishment of the Governor‑General would be the property of the Commonwealth.

MR WALKER:   Quite so.

NETTLE J:   Of itself.

MR WALKER:   Of itself.

NETTLE J:   As of course ‑ ‑ ‑

MR WALKER:   Just as, and all of that can be said of a department, indeed, of the Executive Council and the Senate and the House of Representatives as well – but certainly of a department.  So one must beware - and your Honours know the legislative prehistory; it is scarcely a history when one sees the step changes that occurred over years - one knows that there were political or policy differences, one of which involved a proposed, indeed manifested in a Bill, a proposed exemption generally with respect to what I will call the Governor‑General - plainly rejected, not to be found anywhere by way of an exclusion.

It is now said that something like that has occurred for some documents, but not all documents to do with the Governor‑General by reading between the lines of the defined term in the definition of “Commonwealth record”, which is the defined term “Commonwealth institution”.  That, in our submission, is to have assumed the conclusion of the argument.  One starts with the proposition, our argument, is this or is this not property of the Commonwealth by reason of the manner of its creation?

KIEFEL CJ:   Mr Walker, what kind of records might be the property of the official establishment of the Governor‑General?

MR WALKER:   I am speculating about what actually happens.  But I assume that all arrangements for his or her Excellency’s travel or official attendances will be carried out by or by arrangement with the official establishment of the Governor‑General.

KIEFEL CJ:   Speeches?

MR WALKER:   It would follow that arrangements for, what I will call “official occasions”, including the multifarious civic attendances by the Vice Regal personage ‑ ‑ ‑

KIEFEL CJ:   Communications with ‑ ‑ ‑

MR WALKER:   ‑ ‑ ‑ the records relating to them will be within the official establishment.

KIEFEL CJ:   Communications with overseas entities, whether governments or otherwise, relating to official visits?

MR WALKER:   If they have come from, what I will call the “office of the Governor‑General” as opposed to the Minister for Foreign Affairs ‑ ‑ ‑

KIEFEL CJ:   Yes.

MR WALKER:   ‑ ‑ ‑ yes, that will be official establishment.

KIEFEL CJ:   Communications with Governors of the State?

MR WALKER:   Yes.

KIEFEL CJ:   Of the States of Australia?

MR WALKER:   Yes, yes. 

KIEFEL CJ:   About matters of politics and the like?

MR WALKER:   When your Honour says “matters of politics”, in the constitutional sense of politics rather than the partisan or elective sense?

KIEFEL CJ:   Yes.

MR WALKER:   Yes, yes. 

KIEFEL CJ:   The affairs of the Commonwealth.

MR WALKER:   Yes, insofar as they emanate from the official establishment of the Governor‑General unless a document were created by, or received by, the official establishment.  Here, I am using the familiar notion of correspondence that happens to be this case.  It is very difficult to see how this odd statutory concept of “property” of the official establishment of the Governor‑General, as opposed to, obviously, property of the Commonwealth, would ever arise.

GAGELER J:   If I can just try to understand your answer to the Chief Justice, a letter written by the Governor‑General to a State Governor, I understand you now to be accepting, is part of a Commonwealth record at least because it is a record that is the property of the official establishment of the Governor‑General.

MR WALKER:   I assume that that would be a letter written by the Official Secretary.

GAGELER J:   I see.

KEANE J:   Because the Official Secretary is part of the apparatus – the machinery – whereby the functions of the Governor‑General are performed or assisted in the performance by others.

MR WALKER:   Exactly.

KEANE J:   Persons other than the Governor‑General, himself or herself.

MR WALKER:   Exactly.  They are the establishment of – they do not constitute the Governor‑General but they are the establishment of.

KEANE J:   So that that provision about the official establishment captures ‑ material captures records of persons – or made by persons – other than the Governor‑General, himself or herself, insofar as they are part of the apparatus that assists the Governor‑General to perform his or her role.  So that they may catch – or that phrase captures records that are remote from the hand of the Governor‑General, himself or herself.  Whereas, if documents under the hand of the Governor‑General, himself or herself, are, by virtue of a circumstance, the Governor‑General is the highest office, the Executive Government of the Commonwealth, apart from Her Majesty ‑ ‑ ‑

MR WALKER:   That is right.

KEANE J:   ‑ ‑ ‑ are ipso facto, property of the Commonwealth.

MR WALKER:   Yes, that is right.

KIEFEL CJ:   So, do I understand you correctly now to say that a letter from the Governor under the hand written by – or under the hand of the Governor to a Governor ‑ by the Governor‑General to a Governor of the State is not property of the official establishment.

MR WALKER:   No.  It would be if it is a letter in the familiar form from the Official Secretary ‑ ‑ ‑

KIEFEL CJ:   Even if it said on behalf ‑ ‑ ‑

MR WALKER:   ‑ ‑ ‑ “I am commanded by his Excellency”, et cetera.

KIEFEL CJ:   Even if it is said on behalf of the Governor‑General, “I advise you that”.

MR WALKER:   Very much so.  That would be – I am sorry.  That would be – I am about to say in ordinary parlance, but if there is one thing that is clear, there is no ordinary parlance at the heart of these provisions.

GORDON J:   Is that because you – this goes back to the line drawing?  I am sorry to be difficult.  Is this because your arguments are bound up with source?  So, if it is sourced from the Official Secretary, even if it is sent on instructions, it is within the official establishment, but if it is sourced in the sense of “signed by the Governor‑General”, it is not caught.

MR WALKER:   These are not lines that we have to draw for this reason.  Assume that one were to get to the point of the former being the property of the official establishment of the Governor‑General, but not the latter, and there are not findings about that.  This difficulty of being property of a non‑legal person is not one that has arisen in this case, bearing in a way the argument has been framed.  All roads would nonetheless lead to Rome.  They would all still be records of the Commonwealth. 

GORDON J:   Because they are property of the Commonwealth? 

MR WALKER:   They would either be property of the Commonwealth or property of a Commonwealth institution, namely the official establishment of the Governor‑General. 

GORDON J:   You – “abandon” is too strong a word.  You place no reliance on the second limb.  We are trying to work out the character of the first limb.  Is it the position that the second limb therefore in these circumstances really has no work to do? 

MR WALKER:   That is what we say.  These are correspondences between the Governor‑General and the Queen.  There is nothing, we submit, in the agreed facts – we do not have the documents – which enable us to say, well, no, this is not the Governor‑General; this is the official establishment of the Governor‑General.  Neither is there any cause either in the so‑called ordinary English of that expression, “the official establishment of the Governor‑General”, or in any political science or law about it, to say that everything – anything and everything pertaining to the Governor‑General in his or her performance of that role is, ipso facto, the property of the official establishment of the Governor‑General. 

Now, that might be a highly desirable and simple state of affairs, but I cannot draw to attention anything which would provide authority for, or if it be a question of fact, evidence about, that matter.  Those who drafted this part of the definitions used an expression which, perhaps for strategic reasons, did not lend itself to bright‑line definition.  This, I think, is the first time it has mattered.  We say it will not matter because there is a robustly straightforward, as it happens, primary way of satisfying the definition.  It is no accident that the opening words of the definition of “Commonwealth record” is the simple word that provides no riddle about ownership being impossible by non‑legal persons and simply is “property of the Commonwealth”.  

Now, the very reasons which might as a matter of hypothetical argument have produced so‑called ownership, that is property in this correspondence by the official establishment of the Governor‑General, answering the description of the record kept by reason of the information, et cetera, those very reasons are reasons which, in our submission, far more straightforwardly produce the conclusion that the correspondence is the property of the Commonwealth. 

It is utterly alien that those possibilities, hypothetical possibilities, are utterly alien to the notion of the correspondence being the private property of the Governor‑General to be disposed of as he, she or anyone succeeding in title to that property may please because this Act does not require people to be solicitors for the historical importance of documents that are not Commonwealth records. 

Now, it is for those reasons, in our submission, that there ultimately is no significance in the difference between our argument about property of the Commonwealth and hypothetical argument about property of the official establishment of the Governor‑General.  The same factors produce, that is, performance of a duty, produce, by slightly different routes, the same conclusion, namely, it is a Commonwealth record.

EDELMAN J:   Ultimately, the basis of the adoption of that test, which I think you said might echo the same sort of test as in employment or agency relationships, is the notion of accountability, is it?  It is public accountability that gives rise to this line between matters that are in the performance of the role that create property rights of the Commonwealth and matters that are not in performance of the role.

MR WALKER:   I cannot give a simple answer, a simple yes answer to that.  It partakes, to a degree, of the same general conceptions as would be encompassed within the notion of accountability, but accountability meaning, normally, responding to a superior, is not an easy matter to apply to the constitutional positions of Governor‑General and monarch, to which I will be coming shortly.  It is certainly not, notwithstanding the use of the word “representative”, to which I will be coming, it is not at all simply or appropriately analogised with private law, civil, principal and agent.  Does it have some deep similarity?  Yes, it does, at a deep level.

EDELMAN J:   You rely upon the similarity in the fiduciary characteristics.

MR WALKER:   Exactly, but there are resemblances, and, as it were, strands of conceptual cogency in that similarity, but they are not the same.  I hope it will not be seen as intellectual cowardice if I say that we do embrace the Latin cliché that both of us use, sui generis.  Now, true, that might be a kind of a stepping back from grappling with the need to describe, in recognisable legal terms, attributes of the offices of Governor‑General and monarch, but it is quite impossible to resist the conclusion, as surely this Court noted it in utterly different contexts, say, in Sue v Hill or Kline.

It is difficult to avoid the notion that there are really important essential features of those roles and the relation between the persons holding those roles which will not be found anywhere else, and which it would be artificial to see as incidental in order to make it nothing more than a principal and agent.  It is more than a principal and agent, and it is also less than a principal and agent, particularly in the kind of control, or ability to compel answers, for example, or justification, which is the essence of an accountability, both at law and in equity.  I am sorry not to be able to give Justice Edelman a plain answer, but I think a colloquial summary of, it is sort of but not completely.

EDELMAN J:   What I am struggling with, I think, and I am sure you will come to it, is the link between whether one describes it as public accountability or public trust and how one gets from those sui generis notions to an “in performance of the role” dividing line.

MR WALKER:   Yes.  Your Honours, at the risk of – it will not be out of order ‑ can I come then to the matter in proposition 5 in our outline.  We have already, in answer to some of your Honours, embarked upon to quite a degree. 

There cannot be any doubt that the correspondence in question has, as its character, we say, this is common ground – that may be contested ‑ the sending of reports and the receipt of responses to reports by the Governor‑General, as such, to the Queen, as Queen of Australia, as such.  More can be said explicitly by reason of the wording of the Constitution about those two roles. 

I am eschewing at the moment the word “office”, lest that be thought tendentious. I will come to that question. But we know that in the basic constitutive provision, section 2, the word “representative” is used. That is the word used to describe the defining characteristic of the Governor‑General, the Queen’s representative in Australia.

Very importantly, section 61 uses the same language. I say very importantly because there is the executive power residing in the Queen to be exercised by the Governor‑General as her representative. Let us hope it does not have to be used all that often, but then there is, for any nation, the critical power referred to in section 68, the Commander –in –Chief, again representative.

There are other provisions in the Constitution upon which one should not dwell too much in this argument, but I would draw them to attention. They have to do with a relation between the Governor‑General and the Queen in their respective roles as constitutive elements of Parliament, and in particular may I draw to attention sections 58, 59 and 60, not in order to say they are at the peak of the importance of those provisions but because they illustrate where there are differences, not as it were pure reflex representation, where there are differences between Governor‑General and Queen.

I draw them to attention and I lean on the word “representative”, which is the key part of the text being construed, in order to anticipate in argument an argument against us which may be close to the heart of the majority’s reasons, to which I will be coming, and that is this notion that the Queen has no role or responsibility she can carry out in Australia or in the Government of Australia.  I hope that does not travesty, to an illicit degree, the argument against us.

You will see that the majority, I think three times, emphasise the significance of something to that effect in their reasoning.  And in the argument against us, if I can anticipate a reply, there is a distinct element which refers, in effect, to the lack of dominion or power ‑ my words, not theirs ‑ enjoyed by the Queen compared to the Governor‑General.  Now, all of this, is to be recalled, is in aid of a conclusion that therefore the correspondence is the private property of the person who happens to be Governor‑General at the time because the Queen is, in my words, powerless.

Now, in our submission, this is a most extraordinary and fundamentally self‑destructive argument about a constitutional monarchy, where the epithet “constitutional” obviously conveys what I have been crude enough to call the argument against us of powerlessness.  The monarch acts on advice, and may not ignore the advice.  That is the constitutional element of the political settlement that we have inherited and transmuted by our own Constitution, or nationally, Constitutions.

And our submission, to draw to attention that historical victory, rendering the monarchy constitutional rather than personal or unrestrained or divinely appointed, is, in our submission, an extraordinary reason to say that there is not something sufficiently public, official, or in performance of duty, in the correspondence between a representative, an explicit representative, and the constitutional monarch about affairs of state.

In short, in our submission, the powerlessness paradigm, which seems to be much emphasised by the argument against us, misfires completely, because it mistakes the nature of the constitutional monarchy.  It is of the essence that the Queen will not be acting in an uncontrolled fashion regardless of, let alone contrary to, the advice of her relevant ministers, which eventually we have established by a mixture of law, argument, politics and convention, means the advice of her Australian ministers.

That, in our submission, does not show the Queen is powerless, but rather says that the power is of a special kind ‑ if you have to, sui generis, there is only one constitutional monarch ‑ by which the power is exercised in accordance with requirements of law and according to understood convention.

That does not mean it is not power.  It means it is power of a particular kind.  And, furthermore, it is power that has to be exercised by a particular person selected according to ‑ I do not mean this disrespectfully – pedigree, by reason of our Constitution’s reference to the succession to the sovereignty of the United Kingdom.

So it is for all those reasons that, in our submission, the official and public and constitutional nature of correspondence between the Queen’s representative in Australia and the Queen indicate the bizarre unlikelihood, in constitutional terms, of the documents constituting the correspondence, recording the correspondence, being the private property, on our side, on the Australian side, of the Governor‑General in question.

Now, it seems particularly odd when one contemplates that Parliament plainly intended – if I can return to official establishment – that other kinds of documents, generated in and for the carrying out of the Governor‑General’s activities, will be regarded as Commonwealth records notwithstanding that they are much less significant, indeed not necessarily required by anything in the Constitution.  That would appear to be at odds with the evident concern of this statute with the preservation of and access to records of the Commonwealth. 

Coming to proposition 6, I can pass over it quickly.  That appears to be common ground and is plainly in danger, for both of us, of being a statement of that which is trite in private law, pushed for our opposite purposes into the service of an argument about a sui generis relationship.  The best I can do is to say that the court below, courts below, have correctly, in our submission, at least noticed as part of the starting point of the argument that as a matter of ordinary reasoning about correspondence and ownership one distinguishes between copyright and ownership of the correspondence, one distinguishes between confidentiality and ownership of the correspondence, and one can add nowadays one distinguishes between national security and public interest immunity and ownership of the correspondence. 

That is important, as I say in anticipating a reply to arguments against us, because in our submission it is to put the cart before the horse.  It is to assume the conclusion of the argument to say that because confidentiality is prized between viceroys and monarch, the property in correspondence is with the viceroy personally and not officially.  That is, in our submission, absurd. 

GAGELER J:   Mr Walker, when we think about property we normally think about it with the dominion – a power of disposition to destroy or to alienate.  Is that the sense in which you are using “property”? 

MR WALKER: Yes. You will have seen that we have written that and argued that below. There could be statutory limitation of aspects of dominion and, notoriously, and really in the issues between us ‑ and here I am anticipating a reply – that might give rise to questions of provisions of a kind that we do not think exist here but, nonetheless, provisions in something like an Archives Act, falling foul, for want of particular provision, of section 51(xxxi) of the Constitution.  That is a kind of a looming breadth that the argument against us says.  If this is right there are 51(xxxi) problems.  Well, there are no 51(xxxi) problems.  That would no doubt explain why there is no 78B concerning 51(xxxi), as actually enlivened in substance and concretely by this case.  There is not an invalidity argument by either of us.

Going to that muted form of such argument, which can be called in aid sometimes in interpretation, in our submission, the first requirement would be to bring it out in the open and see exactly what is being said about it and one imagines, therefore, that the argument has something to do with the danger of exposing the Commonwealth to a requirement to afford just terms in order to protect the unquestioned historical heritage of the nation, which happens - on the argument assumed in all of this to be correct, there is circularity involved – to be the private property of one of the historical actors.  In our submission, this is utterly a straw man, this notion that we must be wrong because they, being correct about it being private property, that would give rise to a 51(xxxi).  In our submission it goes nowhere.

GAGELER J:   My question was really one of relating - where it was leading was relating this concept of property, dominion, power to destroy or alienate to the entity in which you say this property exists and you say it is the Commonwealth as a body, which is a pretty ambiguous expression when you drill down - you say as a body politic.  Now, you do not mean the Executive Government, do you?

MR WALKER:   No.

GAGELER J:   You mean something larger?

MR WALKER:   Yes.

GAGELER J:   But you do not mean all the people.

MR WALKER:   No.

GAGELER J:   No.

MR WALKER:   No, it is not the people of the Commonwealth, which is a constitutional concept, and distinct from the Commonwealth.  That does not mean that one cannot, as a matter of language, probably not juristic language, but one cannot talk about the Commonwealth meaning the people.

GORDON J:   Is that why you take us to the provisions in the Constitution?

MR WALKER:   Yes, your Honours.

GORDON J:   Is that the way you tie it, or describe it?

MR WALKER:   Yes.  There is no question that the Commonwealth is a legal person capable of owning property.  That much is clear.  That immediately shows that in this chameleon word, ambiguous if one likes, that when one is talking about the Commonwealth as a legal person capable of owning property it either adds nothing, confuses or baffles to say that means the people of the Commonwealth.  It does not add anything to that.  It probably detracts from its clarity to say that this is the property of the people of the Commonwealth. 

It is - again, I am going to the metaphors to which one is driven in this area - it is the emanation of the political identity and nationhood of the people called the Commonwealth in our Constitution and political parlance, which is the legal person.  Now, it is an abstraction, but not obscure on that account.

GAGELER J:   The Court is as much the Commonwealth for this purpose as the Governor‑General, presumably.

MR WALKER:   Exactly, and that is why the word “emanation” is a powerful tool of analysis.  In context there will be what I am going to call aspects of our society, that is, the organised society of which the Court is an important element, which will, according to the requirements of the occasion, that is, what questions have to be answered, which will fall to be described as the Commonwealth.  At a much, if I may put it this way, more mundane level, and statutory rather than constitutional, it is of course well recognised - I do not want to rehearse the authorities that both sides have referred to in our written submissions - that statutory authorities, statutory corporations can be, for purposes that require the question to be answered, treated as the Commonwealth, ASIC and….., for example.

So, that is not because there is some idiosyncratic oddity about either constitutional or Judiciary Act uses of the word “Commonwealth”.  It is because the notion requires attendance to what the occasion calls for when the characteristic of a person or entity, as the Commonwealth or not, requires to be answered.  When it comes to the ownership of property, but for the definitions with which I started this morning, there can be no doubt, for example, that there was no difficulty in understanding that, say, the Department of Defence is the Commonwealth for the purposes of owning property.

If there were a corporation answerable to – that is, controlled by, in the sense of the defined terms in the Act – the Department of Defence officers with respect, say, to procurement, it may be that for certain purposes – thus, say, Judiciary Act jurisdictional questions derived from Chapter III of the Constitution – it may be that it would be also the Commonwealth.

So, there is, in our submission, for our argument, more significance, really, in the breadth of the expression “the Commonwealth” and it being used in connection with the familiar expression “property of the Commonwealth” in this definition, we do not need to go to any esoteric attribution to another named entity as of the Commonwealth for these purposes.

Is the Governor‑General, himself or herself, in certain circumstances, capable of being regarded as being the Commonwealth?  No doubt, the person who, as representative of the Queen, exercises the executive power of the Commonwealth will, most readily and naturally, be seen so in many circumstances.  But this case does not raise the need to make any particular determination about that because our argument simply says that because of the Governor‑General’s role in – one might add “for the Commonwealth”, one might even say, pushing it a bit, “as the Commonwealth” – that what the Governor‑General produces in order to be Governor‑General, corresponding as representative with the constitutional monarch, is simply thereby the property of the Commonwealth and, if necessary, we call in aid what might be called the “testing by incredulity”.

Could it possibly be believed that it would be the property of the last person who held the document before it was posted to London?  Absurd.  Could it possibly be the property of the person who, under direction from the Official Secretary, produces a copy for file?  Absurd.  In other words, possession might inform it.

KIEFEL CJ:   Mr Walker, could I just return to the notion of property and ownership?  You have taken us to the definition of “record” which refers to information being kept.  There are other provisions in the Act which refer to custody.

MR WALKER:   Yes.

KIEFEL CJ:   Could it be that the ownership contemplated is no more than the right to custody and possession of the record?

MR WALKER:   It is tempting and, we respectfully submit, persuasive to square the circle produced by the non‑legal entities in the definition of “Commonwealth institution” and the legal term of “our property” in just that fashion.  But, in order to be the property of a Department it could only mean – or ought to be understood purposively as meaning – kept custody, care, after all there are obligations, to which I will come, of production to archives.

KIEFEL CJ:   But, on your argument as I understand it, if one were to assert the right to custody or possession, it would be asserted through the Commonwealth.

MR WALKER:   Because a Department cannot sue.

KIEFEL CJ:   Exactly.

MR WALKER:   Yes, exactly so.

KIEFEL CJ:   But the factual substratum for that is that the Department, as part of its functions, holds, retains, has custody of records, perhaps as Justice Edelman was saying, on behalf of the Commonwealth.

MR WALKER: Yes. So can I take you to section 27 of the Archives Act, page 34 and following of the bundle.  Now, it goes around in circles a bit because it starts with the Diceyan concept:

This section applies to a Commonwealth record that:

(a)is in the custody of a Commonwealth institution other than the Archives –

So, say, a Department.  It does not matter about:

been determined to be part of the archival resources –

And then you see under subsection (2):

The person responsible for the custody of the record must cause the record to be transferred –

So there are ‑ there were three categories of what I will call persons as contemplated by this.  There is the Commonwealth, properly so called.  There is that miscellany of possibilities called up by “Commonwealth institution”.  And then there is someone described as a “person responsible for the custody” in a Department – I presume that is in accordance with what I will call administration and official direction as to the carrying out of the business of the Department.

KIEFEL CJ:   And there is the prohibition in section 24(1)(b).

MR WALKER:   Yes.  And one sees that that is a prohibition that bites only if it is a Commonwealth record.  And one can see that in all cases, as a matter of what I am going to call common law, that will be because it is the property of the Commonwealth.  It is all very well to talk about property of the Commonwealth institution, but they will all come down to being property of the Commonwealth.  And so section 24 is an enactment by the Commonwealth to protect the Commonwealth’s own property.

Now, it happens to be property with a particular aura, namely what I will call historical or other significance for the life of the country, but nonetheless it is about property.

BELL J:   Mr Walker, understanding your submission that it is not helpful to look at the confidentiality aspect in terms of consideration of property in this context, how do you deal with the Commonwealth’s argument relating to copyright?  Did Sir John have copyright in the report that he wrote to the Queen describing current political circumstances?

MR WALKER:   We do not have to deal with that at all.  The Archives Act exempts those dealing with access requests from any restraint imposed by different ‑ ‑ ‑

BELL J:   So, on your argument it is unnecessary to consider that question.

MR WALKER:   But for the provisions in question, about which there is no dispute, how they operate.  In a very artificial world one might imagine ticking all the boxes to get access to one of these documents that we assume it was undisputed Commonwealth record in the Archives, and then the political actor in question, within the appropriate period, says, whatever else you do, access cannot be given by any form of reproduction because that would breach my copyright.  Now, all of that has been ‑ ‑ ‑

GORDON J:   Indeed, 24(3).

MR WALKER:   All of that has been dealt with.  That is neither an obstacle further down the road were we to succeed here, nor is it relevant to any of the argument here.  It is like confidentiality – that is, it is a species of relation between people about an item in which there can be property, which can control conduct by means other than an assertion of ownership of the thing itself, that is ownership here of the chattel real.

BELL J:    Ownership of the physical copy.

MR WALKER:   That is right.  Of course, it goes without saying I can own correspondence which I may not publish for reasons that have nothing to do with the person who seeks restraint being an owner of the correspondence.  The technical term ‑ a copyright is a furphy.  It has nothing to do, in our submission, with any of the reasoning that will or should determine the issues in this case.

KIEFEL CJ:   That might be a convenient time, Mr Walker.

MR WALKER:   May it please your Honour.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, I am up to proposition 8, which on reflection, after some answers to some of your Honours questions, I can compress as follows.  The sui generis nature of the roles to which I have referred, Governor‑General and Queen, Governor‑General and monarch, means that it will not do for me simply to assert that they are, however grand, just another pair of public officers.  Indeed, there are instincts, constitutionally and politically, that repel the notion of Her Majesty being, as it were, a public officer.  And that is at least partly because she is at the apex, and that the notion of public officer has to do with a subordination of private interest to public duty, and to the service of a set of requirements, often called duties or obligations, which are not for personal benefit but for the public good, usually in a defined fashion.

Against those criteria there is no instinctive shrinking from regarding the Governor‑General as such an officer of a public kind.  And we return again to the notion of being a representative of the Queen.  Unless one neuters the Queen by regarding her as constitutionally powerless in the sense we think it is sought to be argued against us, that is a relationship which is plainly not one of superiority and has, with respect, the familiar notion of hierarchy.

It does not matter that it is a hierarchy that does not admit of personal control or direction by the monarch of the Governor‑General. Within the sui generis structure set up by the Queens’s representative being the Governor‑General and the constitutional monarch abroad, there is nonetheless that hierarchical relation. And one sees it, I repeat, maybe historically vestigially, in sections 58 and 60 of the Constitution. 

Now, if it be granted that the Governor‑General occupies and discharges a role, which in the sense I have just described either is, or in the central characteristics resembles that of a public office, then it would follow, we submit, as night follows day, that except to the extent specified in the Constitution to which the Governor‑General is entitled to benefit from the holding of office, that nothing would follow, including by way of attributions of ownership which would provide, as it were, at the expense of the revenues of the Commonwealth, private benefit by way of alienable property – property susceptible of being given to Sotheby’s for auction ‑ on the part of the Governor‑General. 

Now again I distinguish, this is to say nothing about private diaries, which may or may not be able to be sold in an open market, depending upon restraints on publication, but certainly can, so far as the chattel is concerned, be sold or destroyed.  Here we are talking about actual correspondence, which constitutes, does not merely refer to, but constitutes the carrying out of part of the functions of Governor‑General as representative.

It could not be that what the case law about public office and the property of the products of its discharge say amount to this absurd notion, namely that so long as one is not delinquent, so long as one performs one’s office honestly, without defalcation, bribery, or other corruption, then you may keep for your own benefit whatever you produce as a matter of duty or obligation in carrying out that office.

That is an absurd proposition for which no case can be found.  True it is there are cases ‑ I will not say without number, but many ‑ which assign, as dispositive reasoning for giving property, say, to the Crown, which is, as being claimed by a former officer, the fact that that officer has obtained that apparent item of property by wrongdoing.  And the fiduciary consequence ‑ the consequences of the fiduciary aspects of the relation between officeholder and, in our case, polity, will produce delinquency as a reason for that property, that item of property, being the property of the Crown.  And it can be seen how that has nothing to do with what I call ordinary products of honourable and proper discharge of duty, because ‑ ‑ ‑

EDELMAN J:   Other than the fact that in some of those cases, like Attorney‑General for Hong Kong v Reid, the basis of the reasoning was that one regards the delinquent officer as doing that which ought to have been done.  So the property is attributed because it ought to be treated as if it were done honestly.

and trusts in the lower sense, meaning a normal trust.  The former, the Lord Chancellor labelled “political trusts”, not within the jurisdiction of courts of equity. 

So Finn was not trying to equate a holder of public office with a trustee in the way that our friend’s argument does, and your Honour Justice Gageler at page 135 points out that when Finn himself revisited this writing in an article he published in 2010, he acknowledged that the characterisation of the state as a fiduciary was:

‘too abstract for everyday use’ . . . he then said, ‘we should be slow to embrace expansively principles drawn from the law of trusts and from fiduciary law so as to channel and control official decision making’.

So one has to support this critical pin or plank of our friend’s argument – some academic work that does not say what they rely upon, and some very old cases that also do not say what they rely upon because all of those cases are about misuse, misbehaviour, breach of fiduciary duty – they are about taking bribes, receiving secret commissions, et cetera.

The principle for which they stand is that the wrongdoer in that circumstance does not get to keep the benefit of their wrongdoing, and a fiduciary analysis is overlaid onto the public office to deprive them of the wrongfully gained benefit.  But the analysis does not work in circumstances where there is no foundation for asserting misbehaviour by the public officer, and that is this case.  So it does not help in dealing with the property rights of the public officer.

Again, I will not take your Honours to it, but Justice Selway, writing extra‑judicially, published a detailed analysis of the law of public office in a historical context in an article you will find at volume 5, tab 58.  Justice Selway starts by noting the profound changes in the relationship between the King and public offices over the last 250 years, and identifies, drawing on Professor Julius Stone’s work, what he calls the logical error in transposing, to a new subject matter, law developed in the context of an old and different one and, particularly at 227, Justice Selway casts great doubt on the continuing application of these old cases, he says, that were applied to very different governmental structures and his conclusion is if trust law is to be overlaid, then it should be because the current relationship is such as to attract the law of trust, rather than because of some old body of law concerning public trustees.

So, in our submission, your Honours are left with no bridge to justify a departure from the conclusion that you get from the ordinary principles of property law.  Sir John wrote the letter, and copied it before he sent it, copied it for his own purposes, received it from the Queen.  On ordinary property principles he owned it – without going back into the discussion I had with your Honours after lunch - and the fact that he was the holder of a public office tells you nothing about the ownership of that property.  The relevant question is the emanation question that I identified earlier.

Very briefly, before the adjournment, your Honours, can I develop this further submission which is really a test to the correctness of the law as our friends identify it.  If your Honours would turn in the joint book of authorities, volume 5, tab 67, you will see an extract from the House of Representatives resolution governing members’ interests.  This is a resolution from 1984.  It has been updated many times since.  I believe it was – although we have not given your Honours that version of it – also updated late last year but no material change was made.

This is dealing with the position where a Member of Parliament receives a gift.  A Member of Parliament is evidently a public officeholder.  Your Honours have so held on a number of occasions, including in Day.  In the course of discharging that public office, say, for example, the Foreign Minister travelling overseas, the Foreign Minister may receive a gift.  Parliament requires the disclosure of that gift in certain circumstances that you see identified in paragraph (2), relevantly 2(k):

gifts valued at more than $750 received from official sources, or at more than $300 where received from other than official sources –

the resolution, interestingly, in contrast with the Senate resolution which deems gifts above the threshold to be gifts to the Senate, so they have to be given to the Senate.  But in the House the way the resolution is framed is premised on the proposition that you get to keep it, that the recipient of a gift in the discharge of their public office, a parliamentarian, as long as it is under the $750 threshold, gets to keep the gift.

That reading of the resolution is consistent with some guidelines that have been published by Prime Minister and Cabinet that I do not need to take your Honours to.  But, basically, the effect of those guidelines is that as long as it is under the threshold then the gift can be retained.

If the law of public office is as our friends suggest it to be, then evidently the parliamentarian cannot retain those gifts.  Those are benefits being received in connection with the discharge of a public office that are not the salary of the officeholder and so the principle that our friends identify, if it be right, will mean that the basis upon which for at least quite a number of decades Parliament has proceeded has been wrong.  Similarly, in the records - no, your Honours, I was about to move to the related topic of judges, but in light of the time perhaps I could defer that.

KIEFEL CJ:   Yes, thank you, Mr Solicitor.  The Court will adjourn to 10.00 am tomorrow.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 5 FEBRUARY 2020