51.
be that all involved were merely endeavouring to abide by the understanding of confidentiality using the resources available to them.
143 Of course, if the Senator or Member of the House of Representatives were to table the personal note in Parliament, or if the Chief Justice or Chief Judge were to instruct a Registrar of the court to place the personal note in the official file of a matter, then, notwithstanding the understanding, the logical inference would be one of intention to make the communication a record of the Senate or the House of Representatives, or of the court; and, other things being equal, the communication would thereby become such a record.
Correspondence between the Governor-General and the Monarch
144 As the plurality in Kline v Official Secretary to the Governor-General observed[1], "the position of the Governor-General calls for the exercise of a multiplicity of powers and functions, many (but not all) of which are undertaken in public, and some (but few) of which involve making decisions other than on the advice of a Minister or the Executive Council". This case is demonstrative of those dichotomies. As the primary judge found[2], and the majority of the Full Court affirmed[3], the letters under consideration arose from a "representative" function of the Governor-General which was undertaken in "private". As the primary judge also found[4], and the majority of the Full Court affirmed[5], at all relevant times, correspondence of the kind in issue has been dealt with as the personal property of the Governor-General or the Monarch, not to be disclosed without the Monarch's assent. So much is apparent from documents immediately before, during and immediately after Sir John Kerr's tenure.
145 For example, in a memorandum from the United Kingdom Secretary of State to the Governor of the State of Victoria, the practice which appears to have applied equally to State Governors and Governors-General was detailed as follows:
- ↑ (2013) 249 CLR 645 at 661 [38] per French CJ, Crennan, Kiefel and Bell JJ.
- ↑ Hocking v Director-General of National Archives of Australia (2018) 255 FCR 1 at 25 [79], 32 [120].
- ↑ Hocking v Director-General of the National Archives of Australia (2019) 264 FCR 1 at 20 [95]–[96].
- ↑ Hocking v Director-General of National Archives of Australia (2018) 255 FCR 1 at 29–32 [107]–[118].
- ↑ Hocking v Director-General of the National Archives of Australia (2019) 264 FCR 1 at 20 [99], 21 [103].
