97.
251 These submissions were factually overstated. Sir John Kerr probably did not hold the view that he had title to the originals, as opposed to the copies, to the exclusion of the Commonwealth. For the reasons explained above[1], Prime Minister Fraser did not hold that view and Sir John had not demurred from the view of the Prime Minister in correspondence with him. In a letter to the Private Secretary to the Queen, Sir John also said that "I can make the appropriate decisions about papers which are exclusively mine, but our correspondence falls into a different category". It was in response to that letter that the Private Secretary had referred to "your papers dealing with the Governor-Generalship".
252 Sir Paul Hasluck also did not regard his correspondence with the Queen as part of his personal property. In the outline to his collation of "The Governor-General's papers", which were an exhibit at trial, the papers were divided into five groups. The first group concerned the despatches written to the Queen and the responses by her Private Secretary. The documents in that group were described as requiring the permission of Her Majesty before they could be made public. In contrast, in the second group, notes made in the Governor-General's personal minute book were described as "the private property of Sir Paul Hasluck".
253 As for the opinion of the Archives itself, the clearest expression of the opinion that such correspondence was not a Commonwealth record was made decades after the correspondence in issue. Earlier expressions of opinion are more equivocal. For instance, the appellant pointed to a statement by the Director-General of the Australian Archives in a letter dated 18 November 1977 that conditions of access to the originals of the correspondence in this case "would normally be administered by the official policy governing such papers" and that "variation from these rules will be determined by discussions in London". The role of London in amending rules of access is, at least, in tension with an understanding that the originals of the correspondence are the personal property of Sir John Kerr.
254 More fundamentally than any factual overstatement, the legal flaw in the respondent's submission is that a person does not obtain a property right by thinking they have a property right or merely by them or others expressing that belief. The respondent's submission thus transmogrified to an argument that the expression of these subjective views established a convention that the correspondence was "private and confidential" and "does not form part of any official government record". If this convention existed at the time of the correspondence, and if it were not inconsistent with the policy of the Archives Act, then the respondent would be correct that the correspondence was not created or
- ↑ At [245].
