93.
Commonwealth so that the correspondence was a "Commonwealth record" within s 3(1) of the Archives Act. There are five reasons why the correct characterisation is the latter in the circumstances of this case.
242 First, the exchange of correspondence was treated by Sir John Kerr as an official issue. Sir John was assisted by Mr Smith in the preparation of correspondence sent to the Queen and in discussing the correspondence received from the Queen. As Sir John observed in a letter to Mr Smith, he adopted a system "of the Official Secretary participating in the preparation" of what he described as "Palace correspondence" and providing comments on the replies from the Palace. At that time, the office of Official Secretary to the Governor-General was not a statutory office[1]. The position of Official Secretary was filled by Mr Smith as a public servant holding an office in a Department (within the definition of "Commonwealth institution" in s 3(1) of the Archives Act), namely the Department of the Prime Minister and Cabinet[2]. Thus, the correspondence written by the Governor-General was authored with the assistance of an officer of the public service who formed part of the official establishment of the Governor-General.
243 Secondly, as the primary judge correctly characterised the correspondence between the Governor-General and the Queen, it was correspondence "arising from the performance of the duties and functions of the office of Governor-General"[3]. Holders of high public offices such as that of the Governor-General have been described as "trustees of the public"[4]. Public powers to act in the performance of duties are said to be conferred "as it were upon trust"[5].
- ↑ Australia, House of Representatives, Public Service Reform Bill 1984, Explanatory Memorandum at 47.
- ↑ Australia, House of Representatives, Public Service Reform Bill 1984, Explanatory Memorandum at 47. See Public Service Act 1922 (Cth), s 48A (as at 19 December 1973).
- ↑ Hocking v Director-General of National Archives of Australia (2018) 255 FCR 1 at 35 [132].
- ↑ Finn, "The Forgotten 'Trust': The People and the State", in Cope (ed), Equity: Issues and Trends (1995) 131 at 143. See also R v Bembridge (1783) 22 St Tr 1 at 155 ("an office of trust and confidence, concerning the public"); R v Whitaker [1914] 3 KB 1283 at 1296–1297.
- ↑ Porter v Magill [2002] 2 AC 357 at 463 [19], quoting R v Tower Hamlets London Borough Council; Ex parte Chetnik Developments Ltd [1988] AC 858 at 872, in turn quoting Wade, Administrative Law, 5th ed (1982) at 355. See also Three Rivers
