41.
of government". The convention, to which it is submitted that all relevant office holders can be found to have regarded themselves as bound[1], is said to be as spelt out in the exchange of letters in February 2017 between the then Official Secretary and the then Private Secretary. Echoing the language of the Private Secretary, the convention is said to be observed "in each of Her Majesty's 15 Commonwealth Realms" and to be "necessary to protect the privacy and dignity of the Sovereign and her Governors-General, and to preserve the constitutional position of the Monarch and the Monarchy".
111 Whether a constitutional convention pertaining to the ownership of confidential communications with Her Majesty exists in the United Kingdom or in relation to any other country is neither necessary nor appropriate for this Court to decide. Whether such a constitutional convention exists or has at any relevant time existed in the outworking of the Australian Constitution is not satisfactorily established merely by an exchange of letters between the Official Secretary and the Private Secretary and is not unambiguously borne out by the practices of Governors-General revealed by the other documents that are in evidence. Though recognition of a constitutional convention cannot depend on formal proof by admissible evidence on the balance of probabilities, the Court would not be justified in taking cognisance of an asserted constitutional convention unless convinced on adequate material of the convention's existence[2].
112 Even aside from the difficulty of taking judicial cognisance of the asserted constitutional convention, the issue of the ownership of the deposited correspondence has an unavoidable constitutional dimension. As such, it is an issue appropriate to be determined only if its resolution is truly necessary to the outcome of the appeal[3]. It is not.
113 If, on the one hand, the Commonwealth as a body politic was the true owner of the correspondence at the time it was deposited with the Australian Archives, it would follow that each item of correspondence would have been the property of the Commonwealth and therefore a Commonwealth record. If, on the other hand, Sir John Kerr as an individual was then the true owner of the correspondence, each item of correspondence would still have been a Commonwealth record if it was
