- Sir John Kerr was the Governor-General of Australia from 1974 to 1977. Throughout that period, he engaged in “personal and confidential” correspondence with the Queen.
- When Sir Kerr retired, copies of this correspondence was deposited into the custody of the National Archives of Australia (“the Archives“).
- The Archives was constituted pursuant to the Archives Act 1983 (Cth) (“the Act“) and has responsibility for the “care and management” of “the archival resources of the Commonwealth“.
- Section 3(2) of the Act defines the archival resources as consisting of “Commonwealth records and other material” that are “of national significance or public interest” and that “relate to“, inter alia, “the history or government of Australia“. A “Commonwealth record” is defined in section 3(1) as including “a record that is the property of the Commonwealth or of a Commonwealth institution“. “Commonwealth institution” is defined as including “the official establishment of the Governor-General“.
- Subject to exceptions, a Commonwealth record within the care of the Archives must be made available for public access once the record is within the “open access period“, which for a Commonwealth record created before 1980 is 31 years after the date of creation. There is no requirement for public access to archival resources that are not Commonwealth records.
- Whether the correspondence constituted “Commonwealth records” for the purposes of the Act because the correspondence was “the property of the Commonwealth or of a Commonwealth institution“.
- The High Court majority (5:2) held that the correspondence was constituted Commonwealth records because it was the property of the Commonwealth or of a Commonwealth institution; the official establishment of the Governor-General.
- The majority held that in the statutory context of the Archives Act the term “property” connoted the existence of a relationship in which the Commonwealth or a Commonwealth institution had a legally endorsed concentration of power to control the custody of a record.
- The Court held that the arrangement by which the correspondence was kept by Mr Smith and then deposited with the Archives demonstrated that lawful power to control the custody of the correspondence lay with the Official Secretary, an office within the official establishment of the Governor-General, such that the correspondence was the property of the official establishment.
- The other Justice in the majority held that the correspondence was, by common law concepts of property employed in the Archives Act, the “property of the Commonwealth” because it had been created or received officially and kept by the official establishment of the Governor-General.
“The nature and significance of the correspondence was such that it was only to be expected that the correspondence would be kept within the official establishment of the Governor- General as the functional unit of government responsible for keeping records created or obtained by the Governor-General in his or her official capacity. With respect to the majority in the Full Court, we cannot see how the correspondence could appropriately be described, however “loosely“, as “private or personal records of the Governor-General” even allowing for the ambiguity of the description of “private or personal”. It cannot be supposed, for example, that Sir John Kerr could have taken the correspondence from the custody of the official establishment and destroyed it or sold it, and the sequence of events which resulted in its deposit with the Australian Archives demonstrates that such a possibility was never contemplated.
The inference is sufficient to conclude that the correspondence was properly characterised at the time of deposit as property of the official establishment of the Governor-General. The conclusion follows irrespective of whether the Commonwealth as a body politic or Sir John Kerr as an individual was the true owner of the correspondence as a matter of common law.”
(Kiefel CJ, Bell, Gaegler, Keane JJ at paragraphs -)
The full text is available here: http://eresources.hcourt.gov.au/showCase/2020/HCA/19
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