98.
received officially nor retained institutionally so that the originals of the correspondence would not be the property of the Commonwealth.
255 It is only in the application of whether the correspondence was created or received institutionally that the convention suggested in this case could be recognised and enforced by the Court[1]. The convention could not contradict the effect of the Archives Act; it could only operate to establish a rule based upon the uniform consensus of the relevant persons that correspondence passing between the Governor-General and the Queen is never created or received by the Governor-General officially nor retained institutionally. In other words, the convention to be given effect is that the correspondence would never be created or received for the institution of the official establishment of the Governor-General.
256 A common starting point for ascertaining the existence of a convention is the three questions posed by Sir Ivor Jennings[2]: "first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?" This approach is not a fixed legal test. Recorded historical precedents are only one indicator of past practice. Further, although the expressions of belief by actors can be important, the work and approach of senior bureaucrats, scholars and other writers can be relevant where the convention is one that binds the general public[3]. More fundamentally for present purposes, the conventions with which Jennings was concerned were those of a "duty-imposing" kind rather than a rule of characterisation such as characterising the nature of correspondence[4]. Nevertheless, it suffices in this case to address the convention in the terms upon which it was asserted by the respondent, purportedly supported by the three criteria proposed by Jennings.
257 As Professor Twomey has explained, a convention that excludes from government records the correspondence between the Governor-General and the
- ↑ Compare, generally, Dicey, Introduction to the Study of the Law of the Constitution, 9th ed (1939) at 417 and Barber, "Laws and Constitutional Conventions" (2009) 125 Law Quarterly Review 294.
- ↑ Jennings, The Law and the Constitution, 5th ed (1959) at 136, adopted in Re: Resolution to Amend the Constitution [1981] 1 SCR 753 at 888.
- ↑ See also Heard, "Constitutional Conventions: the Heart of the Living Constitution" (2012) 6 Journal of Parliamentary and Political Law 319 at 332.
- ↑ See also Jaconelli, "Do Constitutional Conventions Bind?" (2005) 64 Cambridge Law Journal 149 at 152, citing Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability (1984) at 210.
