94.
These loose references to trusteeship are expressions of the duty of loyalty owed by holders of public offices created "for the benefit of the State"[1]. Like all implied duties of loyalty, the content of the duty falls to be determined against a background of general expectations, based upon custom, convention and practice, which impose upon the public officer "an inescapable obligation to serve the public with the highest fidelity"[2]. Thus, a member of Parliament has a duty to "act with fidelity and with a single-mindedness for the welfare of the community"[3].
244 Compliance with this obligation of loyalty was manifested by the expressed reason why Sir John Kerr kept the originals of the telegrams sent, the carbon copies of the letters sent, and the correspondence received, as part of the performance of his official duties. As Sir John expressed this reason in a letter to the Private Secretary to the Queen, it was that "[h]aving regard to the probable historical importance of what we have written, it has to be … preserved". Sir John's expression of the desire to preserve the documents given their historical import, understood in light of his duties of public loyalty, militates powerfully against the originals having been created or received by him personally.
245 Thirdly, events subsequent to the creation or receipt of the original correspondence, which reveal how the original correspondence was treated, can shed light on how the correspondence was created or received. In particular, the subsequent treatment of the "original" correspondence as institutional, that is, part of the official establishment of the Governor-General, is supported by a letter written by Prime Minister Malcolm Fraser to Sir John Kerr towards the end of Sir John's period as Governor-General and from which there is no suggestion of demur by Sir John. The Prime Minister referred in that letter to the draft Archives Bill and said that "Government House records … are part of the history of Australia and it is proper that they should receive all the care and protection possible". The Prime Minister continued:
- ↑ Chitty, A Treatise on the Law of the Prerogatives of the Crown; and the Relative Duties and Rights of the Subject (1820) at 83.
- ↑ Driscoll v Burlington-Bristol Bridge Co (1952) 86 A 2d 201 at 221.
- ↑ R v Boston (1923) 33 CLR 386 at 400. See also Re Day [No 2] (2017) 263 CLR 201 at 221 [49], 251 [179], 272 [269].
District Council v Governor and Company of the Bank of England [No 3] [2003] 2 AC 1 at 235 (power "held in trust for the general public").
