Hocking v Director-General of the National Archives of Australia

[2019] HCATrans 160

[2019] HCATrans 160

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S63 of 2019

B e t w e e n -

JENNIFER HOCKING

Applicant

and

DIRECTOR-GENERAL OF THE NATIONAL ARCHIVES OF AUSTRALIA

Respondent

Application for special leave to appeal

KIEFEL CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 AUGUST 2019, AT 10.29 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 applicant.  (instructed by Corrs Chambers Westgarth)

MR T.M. HOWE, QC:   May it please the Court, I appear with my learned friend, MR C.L. LENEHAN, for the respondent.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, at the heart of the issues we seek to distil for obtaining a special leave to appeal is the critical definitions of “Commonwealth record”, which appears as if it is in two parts, the first being the property of the Commonwealth and the second being the property of a Commonwealth institution.  Your Honours will see that part of the statute reproduced at page 106 of the application book. 

On the previous page, 105, you will see a list of Commonwealth institutions, a glance at which will tell you that either all or nearly all of those are not, as it were, entities of legal personality, apart from the Commonwealth itself.  I draw also to attention a similar attribute not so marked in relation to an “authority of the Commonwealth”, which is within the category of Commonwealth institution and itself defined also in section 3(1) of the Act. 

So the one and only ground of the decision against which judicial review was sought, by which our client’s application for access was knocked back at the threshold, turned simply and solely on the question of whether the Director‑General was correct in terms of legality in reaching a decision based on the proposition that the records sought were not the property of the Commonwealth.

In the course of the argument at first instance, somewhat refined in the Full Court, and then further narrowed by the bases upon which the Full Court actually decided the case, it turns out that the answer to the question whether the Director‑General erred in terms of legality on that issue is supplied by a holding that, as described generically for the purposes of the argument by the agreed facts to which your Honours have seen reference, the correspondence between the Governor‑General and the Queen through their respective Official Secretaries, was in fact as to copies sent and as to originals received by the Governor‑General, the property personally of the Governor‑General.

Entailed in that, of course, so as to lead to our failure below was that it was thereby not the property of the Commonwealth.  Entailed in that, of course, was that there was not an enforceable right to have an application for access decided in accordance with what might be called the succeeding provisions of the Act under the scheme in question, including matters of exemption.  Matters of exemption were not decided, either administratively or judicially.

Now, your Honours, also entailed in that critical holding are what we would submit are quite remarkable propositions lending an air of thorough implausibility to the correctness of the outcome as follows.  The documents with that character are documents which may have been the day after the holding of office or, indeed, during the holding of office, at the uncontrolled discretion of the person holding the office, destroyed. 

If that be a distorting possibility that should not be called in aid, then one can simply suppose that private ownership will of course devolve upon death or could be the subject of market sale.  So it is not the responsibility or sense of decorum that one might regard as appropriate to the holder of an office or the former holder of such an office as the Governor‑General that will be the test.

KIEFEL CJ:   Looking at it from the other perspective, do you say the Commonwealth could have called for those records, could have demanded them?

MR WALKER:   Well, not in our submission.  The next entailment that we would suggest is this.  Basal principles, such as exemplified by 51(xxxi) would suggest that before one considers some common law or query, unique public law, exception to the uncontrolled right to possess and dispose of one’s private property, there would need to be steps taken that have not been taken in the reasoning below and which, in our submission, are of themselves so important as to suggest the appropriateness of special leave.

There is nothing in what might be called the common law that appertains specifically to the position of the Governor‑General in his or her relation to the monarch under our Constitution. That may be a mixture of common law and constitutional doctrine but there is nothing in a current understanding of either of those which would suggest that such correspondence is the personal – that is, private property – of the Governor‑General but that it may be divested from him or her, or, presumably, successors in title, one way or the other, by an executive act on the part of the Commonwealth. There is, in our submission, no coherence whatever in the notion that one can own something but only so long as another person does not call for them.

That brings one back to what, in our submission, is the excessively easy reasoning by way of distinguishing between the well‑known constitutional differences, as they are sometimes called, between the United States and the Commonwealth  of Australia in order to put aside the Nixon decision with which, your Honours understood, we went into battle.

One might as well observe that there are also well‑known constitutional differences between the United Kingdom of Great Britain and Northern Ireland and the Commonwealth of Australia and that their Honours correctly understood that aspects of royal prerogative and what might be called personal dealings of the sovereign with her advisers, both vice‑regal abroad and ministerial at home, provided no solid guidance whatever – indeed, nothing useful – in the Full Court for the elucidation of the problem at hand.

Therefore, in our submission, it is of real significance to note the language and concepts conveyed by it in the critical passages of the reasoning against us in the Full Court.  May I take your Honours, first, please, to page 85 of the application book?  In paragraph 86 it is not complete – indeed, ultimately, an incorrect understanding of the submissions below, that we put the matter as these documents being the property of the Commonwealth:

simply because their subject‑matter related to the performance of the Governor‑General’s role and function.

Similarly, in paragraph 87 it is not the case that we were putting that there was:

some simple rule transposed from other contexts –

which was the answer to the problem. It is a simple rule, as we submit satisfying doctrines of law ought to be in this realm, but it is not transposed from other contexts at all. It was argued as springing from and reflecting the exigencies of our Constitution and our governmental arrangements.

In paragraph 88 it is an overreach, with respect, to talk about every record written by the Governor‑General being made available, et cetera, for public access.  None of the arguments ever went so far as an unqualified universal proposition of that kind.

In paragraph 89 one comes back to the oft‑deployed example in argument below, at both levels, of a diary.  Now, there are diaries and diaries.  There are appointment diaries and official diaries – journals, if one likes, a running record.  There is also a private diary in which one ‑ ‑ ‑

KIEFEL CJ:   Kept for future biographers.

MR WALKER:   Your honour anticipates me.  There is a private diary in which one says, in effect, “Notwithstanding my public face, this is excruciating; I hope nobody learns about that for a long time.  I will ask my children not to release my diaries for 50 years but then they and theirs, they enjoy whatever commercial, financial or other benefit or detriment would come from revelation of my private agony”, or I can write a memoir ‑ ‑ ‑

KIEFEL CJ:   Mr Walker, you do rely upon the fact that the correspondence in question was written by the Governor‑General in his role as Governor‑General?  You do?

MR WALKER:   Absolutely.

KIEFEL CJ:   So it is this notion of reporting to the Queen?

MR WALKER:   In performance of.

KIEFEL CJ:   In performance of the role?

MR WALKER:   In performance of.

KIEFEL CJ:   So does one reason that because it carries that characteristic it cannot be personal and therefore it is property of the Commonwealth?  Is that all that is involved?

MR WALKER:   Yes, yes.  That if the document is made in order to perform, not because you are the person who performs, that is the private diary; that is the notes for the memoirs.  That is perhaps even the Christmas card to someone in the Windsor family because the acquaintance comes about because you held the office or hold the office.  But if the document is for the purpose of performing your role then, in our submission, it is satisfyingly simple and entails no embarrassment of any kind for that to be the property of the Commonwealth.

GAGELER J:   Mr Walker, can I just ask you a question about the difference, if any, between property and ownership?

MR WALKER:   Yes.  First of all, there are differences but, for present purposes, if something is owned by the Commonwealth it will fall within the category of “property of the Commonwealth”, which is the statutory term.  That is the first thing.

GAGELER J:   Your first proposed ground of appeal attributes to the majority an acceptance of Commonwealth ownership of these documents?

MR WALKER:   It is not possible actually to see that as being their ultimate conclusion.  There are uncertainties in the way in which their Honours approach that, in particular the way in which there is a severance of the material, the paper, the intellectual property and perhaps something else is, in our submission, an unsatisfactory aspect of the reasoning itself part of the reasons why we urge that this Court should determine this issue which is, we submit, of very great importance with respect to the Archives and to what I would call the integrity of the Commonwealth and its history.  The Archives are just a current statutory way of serving a purpose which is inherent in, certainly important for, nationhood.

The notion that a private collectors market could, as it were, put in one of those bonded warehouses outside Geneva the records of our Governors‑General by the assiduous collection of somebody with an obsession in that regard is, in our submission, absurd.  If it really be not property of the Commonwealth because it is the private property of the individuals and their successors in title who held the office, then it would follow of course that a taking by the Commonwealth would need to be at what I am going to call market value. 

It is for those reasons, in our submission, that it is instructive to see the what I might call recognition by their Honours in the majority of some of the discordance between what we would call the dignity due to a nation’s records at the very highest level of its official personages discharging constitutional functions and what is entailed in a ruling that this is not the property of the Commonwealth because it is the private property of the person whose performance of the official duties brought about the documents’ existence.  Could I, in particular, note on page 86 of the book the caveats and open questions left in paragraph 91.  Their Honours say:

No doubt some of the records written by the Governor‑General would be the property of the Commonwealth –

There is, with respect, no indication as to why that is not a category that would include correspondence by the Governor‑General to the sovereign.  The sovereign cannot dictate to the Governor‑General, but the Governor‑General is the representative.  One would have thought communication is therefore central to, inherent in, and not merely incidental to the discharge of the functions of the Governor‑General.

KIEFEL CJ:   Mr Walker, that comment perhaps points up a query I have, which is that in the courts below it was not considered necessary to actually look at the records.

MR WALKER:   It was done by agreed fact.  Your Honour has seen that on any view – we are talking about the legality of a decision which, in globo, said of the documents requested, the nature of which are generically described in the agreed facts, that none of them is the property of the Commonwealth and so no further consideration will be given to the access request.

KIEFEL CJ:   I see.

MR WALKER:   We are only at that stage - so your Honour, with respect, is right and that is for two reasons:  one, there was regarded by their Honours as more than sufficient to render the matter a justiciable controversy in the agreed description of the documents and, two, that is the stage at which we were arrested, yes.

KIEFEL CJ:   It is the next stage where the decisions would be applied.

MR WALKER:   The threshold and in globo decision.  Now, your Honours see in paragraph 91 the tentative suggestion, which does not accord with any explanation of principle, we would submit – certainly no principle that has any constitutional footing, but one general example, I think the word “general” means, maybe it will not apply always:

one general example may be records of the exercise by the Governor‑General of the executive power of the Commonwealth within the meaning of s 61 –

In our submission, that is probably a massive understatement, but it highlights, in our submission, the instability of the basis upon which one might have supposed the correspondence with the sovereign was somehow categorically different from exercises of section 61 power for the purposes of deciding whether the Governor‑General or his or her successors in property can either destroy, secret or sell the documents. 

In paragraph 95 on page 87 there is, in our submission, a question begging, with great respect.  Their honours:

construe the legislation as not including as property of the Commonwealth what may be referred to –

and then two rather evocative words:

somewhat loosely, as the private or personal records of the Governor‑General.

That is, with respect, to assume a conclusion and their Honours, with great respect, frankly confess some of the difficulties in that approach in the next sentence of paragraph 95.  In paragraph 97, again, there is an assumed conclusion, fourth line:

but because the particular body performing the act was doing so personally and not officially –

This is a false dichotomy.  Of course the Governor‑General acts personally in the same sense with great respect as both your Honours do as Justices of this Court.  The question is whether or not that means it is not official.  In the last sentence of paragraph 97 there is another of these, with respect, straw men with respect to our position, namely, the notion that we urge an approach that:

everything that a person who holds an office does is done by that person officially –

That, your Honours will not be surprised to know, is by no means an accurate understanding of the way the argument was ever put.  If what is meant “everything that a person does in performance of his or her duties is an official matter” then of course we cleave to that.  It has an admirable simplicity and accords with an ordinary understanding of what it means to discharge the duties of an office.

In paragraph 98 one sees, with respect, the entirely unsatisfactory nature of the explanation of a basis for the decision which will be finally dispositive if there be not a successful appeal concerning some very important records.

GAGELER J:   Mr Walker, is it any part of your case to invoke the other part of the definition of “Commonwealth record” that refers to a record of a Commonwealth institution, relevantly, the official establishment of the Governor‑General?

MR WALKER:   If it is, it is so subsidiary that it is not something that I wish separately to address in terms of special leave.  It involves the official establishment of the Governor‑General as a concept.  That may well be capable of being enlisted but, in our submission, the principle at stake is one that is best answered by reference to the “property of the Commonwealth”.  Your Honour appreciates there is no such legal entity in terms of a legal person capable of holding property, just as there is not with respect to a

department of the Commonwealth .  So that it all comes back, ultimately, to “property of the Commonwealth”, in our submission.

KIEFEL CJ:   Your grounds do not rely on that at all?

MR WALKER:   No.  It may or may not in terms of arguing the meaning of the statute, given the context of all the provisions, be part of the argument but it is, I have to say, a subsidiary matter.

GAGELER J:   Is it your case that if these documents were property of the Commonwealth at the time of their creation by Sir John Kerr - or their
receipt by Sir John Kerr, that nothing has occurred since to cause them to cease to be property of the Commonwealth?

MR WALKER:   That is correct and we do not understand that is gainsaid by our friends.  Now, that is notwithstanding them being part of the archival material of the Commonwealth.  We certainly do not rely upon some gotcha argument that because it is in the Archives it must be the property of the Commonwealth.  That is not true.

Your Honours, I note the light.  I should say there is nothing in the majority reasons which answers the proposition that if these materials be the property of former holders of such offices then their obvious financial worth, ironically, the more controversial the greater the worth, presumably; the more controversial, the more historically significant, that stands in stark contrast to the idea that there is a strictly limited, neither decreasable or increasable, remuneration or emolument for that office.  May it please, your Honours.

KIEFEL CJ:   Yes, Mr Howe.

MR HOWE:   Your Honours, the principal basis for opposition to a grant of special leave is that insufficient doubt attends the correctness of the reasoning and decision of the court below in the majority.  In particular, we submit that on the question as to whether or not the records were property of the Commonwealth, it was relevant to have regard to the fact that the Act deploys the expression “property of the Commonwealth or a Commonwealth institution”.  When one goes to the definition of a “Commonwealth institution” it is significant that it includes within the definition only the official establishment of the Governor‑General and not the Governor‑General him or herself. 

The evidence before the trial judge and not challenged on the appeal to the Full Court was that there was a very long and, indeed, invariable practice on the part of successive Governors‑General not to submit these kinds of records into the official custody of the Official Secretary or what came to be styled as the official establishment of the Governor‑General.

The Full Court was correct to attach significance to the implausibility or improbability of the outcome if the applicant’s contention were accepted, namely, that the Executive Government of the day, consisting of a combination of the Prime Minister and the Attorney, could compel the disclosure of these records. 

That had added significance here because there was uncontradicted and uncontested evidence from the Director‑General of Archives and the Official Secretary to the Governor‑General to the effect that there was a longstanding convention across the whole of the 15 Commonwealth realms that these communications were always conducted on a personal and confidential basis and were not available to or accessible to the Executive Governments of those Commonwealth nations.

The Full Court was correct to attach significance to the fact that the Act draws a very powerful and frequently cited distinction between archival resources of the Commonwealth – and we accept these communications come within those, on the one hand, and Commonwealth records on the other hand, which is an advertently narrow and more confined specie of document than archival resources. 

We say that the Full Court was absolutely correct to reject the applicant’s argument, a simplistic argument, in favour of a provenance approach to this question of ownership, namely, if the subject matter of the records related to official duties or if, somehow, the record could be connected to the performance of an official duty then that ordained an implacable and unqualified outcome, namely, the records were owned by the Commonwealth. 

With respect, that has never been the common law.  The common law has always searched for the existence of something akin to either a formal or informal agency where the record is created for or on behalf of, for instance, a department of State or an employer.  The uncontradicted evidence before the trial judge and the Full Court here was that these records, by longstanding convention, were never created on behalf of the Commonwealth.  Their quintessential character was that they were created with a strong conception that was historical, that was longstanding, and that was actually shared by the Queen and by Sir John when the communications were engaged in, that their character was personal and private, not ‑ ‑ ‑

KIEFEL CJ:   Well, privacy and confidentiality appear to be the areas that you are focusing upon, but did the Full Court?

MR HOWE:   With respect, and the character of them being personally generated by Sir John to reflect his own subjective thought processes not being undertaken for the Commonwealth or on behalf of the Commonwealth.  Indeed, the evidence went further your Honours, namely, that another important stakeholder making up a triangle, as it were, with the Queen or the palace on the one hand, Sir John and successive Governors‑General on the other, but the Commonwealth itself had always understood that the generation of these records resulted in a body of work that was personally owned by the Governor‑General of the day. 

They took them with them when they left office and they submitted them, if they chose to, to Archives on the basis that they were personally owned by them.  They were received by the Archives on that basis, which is why there was a different open‑access period of 60 and then 50 years, rather than 30 years.  Your Honours, that was the absolutely invariable practice ‑ ‑ ‑

KIEFEL CJ:   What is the relevance of this understanding to statutory construction?

MR HOWE:   Only because of this, your Honour, that the Act, properly construed, picks up the notion of ownership or property under the general law.  Of course one can come to own property without, as it were, a shared understanding or agreement, such as succession.

KIEFEL CJ:   Are you relying upon some existence of some convention having been in place at the time the legislation was put together?

MR HOWE:   Yes, there was that convention and ‑ ‑ ‑

KIEFEL CJ:   But of course it did not focus on the Governor‑General, this legislation?

MR HOWE:   Well, it anticipated that legislation.  The legislation was enacted by reference to the existence of that convention.  There was an indication by the Attorney of the day that the Act, as ultimately enacted, would not in fact capture the personal and private records of the Governor‑General in communicating with the Queen, and the convention subsisted and continued after enactment of these kinds of laws throughout the realms.

Could I ask your Honours to go, just in relation to that convention, to page 83 of the application book.  Your Honours will see in paragraph 81 the Full Court refers to the evidence of Mr Fraser, and the third sentence your Honours will note:

not forming part of any official government [record].

With respect, that convention has constitutional provenance and significance because it is part of what informs the various roles and status of the Queen and the Governor‑General within the representative democracy of Australia.  Legislation that is enacted against the backdrop or in the context of those conventions is customarily interpreted in accordance with them.

KIEFEL CJ:   Is there a distinction between an argument which says that correspondence between the monarch and her Governor‑General is private and confidential, and therefore not property of the Commonwealth, and an argument which says the correspondence generated by the Governor‑General is personal to him or her and therefore not property of the Commonwealth?  Are they two different arguments?

MR HOWE:   They may be two different arguments but, for present purposes, what is significant to note is that they are expressed in, as it were, general and unqualified terms.  The Full Court below was careful to say there is not a simple and emphatic rule that characterises either the first set of documents as always being owned by the Governor‑General or always owned by the Commonwealth, and there is no emphatic ruling in relation to the second formulation either because sometimes it can depend because here, although we accept that in one sense the communications were engaged in for the purposes of and relating to the office of Governor‑General, when one drills down into the evidence, and in particular as to the convention, as to the states of mind of the participants in these communications over decades and decades, what emerges was the distinctiveness of the duties of the Governor‑General. 

That is something that the Full Court was correct to establish significance to, and it is significant for this reason, that the duties of the Governor‑General actually comprehended engaging with the Queen in correspondence on the basis that intrinsic to that was the personal and private dimension that had the effect of removing them, not simply from custody of the Commonwealth but actually from ownership of the Commonwealth.  So, with respect, my learned friend contends for an all‑embracing, unqualified simple rule that would treat the Governor‑General as if he or she were an ordinary public servant.

KIEFEL CJ:   There is no suggestion that the monarch of course owns these papers or that they are part of the records of Buckingham Palace?

MR HOWE:   Well, your Honour, there was evidence to the effect that the counterparts of the correspondence, so the original letters ‑ ‑ ‑

KIEFEL CJ:   Are kept by Buckingham Place but not the Governor‑General’s – but not the copies kept by the Governor‑General of his correspondence. 

MR HOWE:   Yes, if I could come to that.  There was evidence by way of expression of views by the Queen’s Official Secretary to the effect that the Queen did have an interest in these records.  There seems to be, as part of the convention surrounding the generation, the keeping and indeed the ownership of the records, that the Queen’s interest in them rose as high, at least, as entailing an opportunity that would always be given to her to have input into their destruction, their disposal, their transfer, who they were to be sent to and for what period of time they might be subject to an embargo.  Now, the exact status ‑ ‑ ‑

KIEFEL CJ:   That interest would be asserted against the retired Governor‑General ‑ ‑ ‑

MR HOWE:   It could be.

KIEFEL CJ:   ‑ ‑ ‑ in his personal or her personal capacity?  Is that how it goes?

MR HOWE:   It could be that the Governor‑General – and the Governors‑General seem to accept that their personal ownership of these records entailed something either equating to or akin to an obligation to consult with the monarch in relation to their destruction or disposition or transfer and so on.  Indeed, those consultations took place with some Governors‑General whereby the palace gave permission for the records to, in effect, be disposed of testamentorily, that is, pursuant to a will, which is of course highly emblematic of an acceptance pursuant to this convention, which fulfils a significant purpose in our representative democracy that, necessarily, this is an extraordinary relationship, almost conducted between an ego and an alter ego.  I mean that in the most respectful sense. 

This notion that those sorts of communications when conducted in that special way – not other different forms of communication that are necessarily part of the official performance of the Governor‑General of his functions in the generation of official records and so on – but when we are talking about the expression of private thoughts and feelings and misgivings and reporting to Her Majesty in relation to the development of sensitive political matters impacting upon the Governor‑General and the Queen, and no doubt being of great interest to the Queen, that they were generated on a basis that they were personal and private and owned by the Governor‑General of the day.

There was a finding of fact by the trial judge as to the existence of this shared understanding and that was endorsed by the Full Federal Court at paragraph 103 of its reasons, if your Honours could go to application book, page 88.  Your Honours will see at paragraph 103 their Honours say, “Look, on all questions of ownership the views of participating stakeholders might not be decisive”.  I accept that.  But what they go on to accept in the concluding sentence is that:

a clear statutory premise of the Archives Act –

actually reflected the external or objective fact.  That is, these records were understood by all of the participants who could possibly assert any ownership in them, were not only understood to be not the property of the Commonwealth but they were agreed by them not to be the property of the Commonwealth.  So the applicant really contends for a very dramatic ex post facto disturbance of that settled understanding and practice.

Your Honours, could I just finally indicate that there are some real deficiencies in the formulation of the grounds of appeal and also the special leave question.  For instance, paragraph 1(a) of the grounds of appeal expresses or purports to express a finding by the Full Court that these records were owned by the Commonwealth.  The finding of the Full Court was to direct opposite effect. 

The Full Court found that the records were not the property of the Commonwealth and were not owned by the Commonwealth and so proposed ground of appeal 1(a) misrepresents a finding and, indeed, we would accept that if the records were in fact owned by the Commonwealth, then they would be the property of the Commonwealth.

GAGELER J:   Could I just ask the same question I asked ‑ ‑ ‑

MR HOWE:   Yes.  We do accept that.

GAGELER J:   You equate them?

MR HOWE:   Exactly so.  Here, therefore, ground 1(a) sets up a false binary.  Of course, we would accept that if the first limb were satisfied, the records are the property of the Commonwealth, and so there is ‑ ‑ ‑

GAGELER J:   Can I just ask another question?  When you talk about the “property of the Commonwealth” what do you mean by “the Commonwealth”?

MR HOWE:   Your Honour, that is a good question, but we mean the Commonwealth in its constitutional sense.  It must include that.  But what is meant by “the Commonwealth” has to accommodate the fact that there are Commonwealth authorities that are defined, and the Governor‑General is not described as one.  There are also Commonwealth institutions as defined. 

GAGELER J:   Can I just ask a follow‑up question, then?  Is it implicit in your submissions that if the records in question are owned by the Commonwealth or are the property of the Commonwealth and you equate the two, then it would follow that the Governor‑General would be obliged as a matter of convention to act on the advice of his ministers as to the disposition of the records?

MR HOWE:   Well, not only as to the disposition, but as to their content even.

GAGELER J:   But that is implicit – it is implicit in your argument that that would follow?

MR HOWE:   Well, it is implicit in the applicant’s argument, if you like, because we say that those implications are extraordinary because if these communications are in fact undertaken for or on behalf of the Commonwealth in a property or ownership sense under the general law, then the Commonwealth could direct the Governor‑General as to their content, their terms, their tenor, their frequency and so on.

GAGELER J:   I am sorry; you are slipping into – when you are using “the Commonwealth” in that context, you are using it to mean Commonwealth Ministers, the executive council?

MR HOWE:   Exactly so.

GAGELER J:   There are all sorts of conventions floating around here.  It is just possible that there can be a variety of conventions that deal with documents that are the actual property of the Commonwealth.

MR HOWE:   Yes, indeed.  To take a simple example, if the Governor‑General were giving formal advice of a kind to the Queen on a topic that impacted maliciously upon the Executive Government in some way then, presumably in relation to that kind of correspondence the Executive Government – the Commonwealth, in that sense – could in fact direct us to the content and the Governor‑General would act on the advice in conveying the position to the Queen. 

So that is why there is no all‑embracing, emphatic rule that has general application and which ordains a necessary answer with respect to every formal kind of correspondence that is engaged in.  That is the

difficulty for the applicant because the applicant does seek or does contend for the existence and application of such a general rule.

Could I also indicate that in relation to ground 1(b), again, there was no finding to that effect.  The Full Court advertently, at paragraph 98 of its reasons, to be found at application book page 87, declined to make a finding that all and any records of the kind described are necessarily the property of the Commonwealth.  Instead, the Full Court found these particular records because of the basis upon which they were entered into, the existence of the convention attaching to them and so on, these particular records were not records of the Commonwealth.  They were not owned by the Commonwealth.

Finally, in relation to the special leave question, your Honours, which appears at application book, page 96, with respect, that question also poses what is, in our submission, a false binary.  Again, the first limb is completely non‑contentious.  We would accept that if the Commonwealth holds property in the records, then the Archives Act regulates them.  So, once again, we have this choice presented to the Court: it is this or that.  But there is no contest as to the first of the alternatives and that, if you like, illustrates the defect.

Indeed, the second limb asserted or embraced in the special leave question is really directed to what I am calling this all‑embracing, all‑or‑nothing emphatic rule and we say that it is not proper to challenge the Full Court for rejecting the notion that these records – some records might be because the Full Court in fact said we are not making a decision of that character or kind.  So, really, that special leave question, if you like, raises a controversy which does not accurately reflect the reasoning of the Full Court.  May it please, those are the submissions of the respondent.

KIEFEL CJ:   Yes, thank you.  Anything in reply, Mr Walker?

MR WALKER:   Your Honours, the matters my friend took you to, covered by their Honours at pages 82, 83 of the application book, can be summed up in this way that, functionally, the need for certain things to be exercised privately, by which I mean confidentially, with what might be called obligations of secrecy cannot possibly dictate as to ownership. 

The most obvious and almost daily demonstration of that is in relation to Cabinet records.  The privacy of the Cabinet, hence the name “the Cabinet”, the confidentiality, the oath of secrecy, all combine in a way that regulates access, including under this Act.  The notion that it removes the property of such documents from the Commonwealth is, in our submission, absurd. 

The same is true, of course, of the common law doctrine, given a deal of statutory reflection in a number of areas of concern of the Commonwealth currently called public interest immunity where, for example, national security is, again, an obvious area.  It is a confusion of concept and it misleads were the argument to go to the extent of saying the confidentiality requires the property.  That really is how their Honours, on those pages, seem to supply the answer to the question raised by the last sentence of paragraph 100:

Some records may be the property of the Commonwealth but the records presently under consideration are not.

Why not?  It would appear to be the answer is because it needed to be secret.  That, with respect, is a wrong so‑called functional approach.

Next, this notion that what we seek special leave for is to argue for the proposition that these are documents, property of the Commonwealth, in the sense that their content may be dictated in advance and controlled by the Executive, meaning the ministerial parties, with respect, nonsense.  There are many statutory officers, not constitutional organs as the Governor‑General is, but there are many statutory officers, the content of whose creations on behalf of the Commonwealth or for the Commonwealth or in the discharge of their statutory office cannot be dictated to, let alone by the Executive and it is not only the judicial arm of which that is true.  That, again, in our submission, is a travesty of the way in which we seek to put the argument.

Finally, it is not the case that either our argument or the principles in question turn upon some attempted assimilation of the attributes of a public office in all respects to the consequences of there being a principal/agent relation.  It is not sensible, except in some figurative and limited way, to speak of the Governor‑General as an agent of the polity.  It does not mean that he or she is not an acting party, to use an old‑fashioned meaning of the word “agent”, but in terms of answering in terms of hierarchy or superiority then it obviously breaks down the relation between the abstraction, which is the polity, and the natural person who is the holder of the office.  May it please the Court.

KIEFEL CJ:   There will be a grant of special leave in this matter.  Mr Walker, you might give further consideration to the grounds of appeal.

MR WALKER:   Yes.

KIEFEL CJ:   What would be your time estimate?

MR WALKER:   We can certainly finish in a day.

KIEFEL CJ:   Within a day?

MR HOWE:   We think so, your Honour.

KIEFEL CJ:   Would you please ensure that your instructing solicitors obtain a copy of the directions from the Deputy Registrar.

AT 11.15 AM THE MATTER WAS CONCLUDED