100.
Ministers could not be said to have reached a conclusion by critical reflection. The Director-General said this[1]:
"The papers of Lord Bruce, for example, are called personal papers. They are copies of every cable sent by Bruce and received by Bruce while he was in office in London, every record of conversation he had with every ambassador and with every British official, and of records, of which he should never have made, of debates which took place in the British War Cabinet. There is nothing whatsoever private or personal about them. They are copies of official records and in the [Archives Bill] sense they are copies of Commonwealth records … Many other Ministers have followed this practice and they have kept in their offices complete sets of copies of correspondence crossing their desk".
In the report of the Committee the view of the Australian Archives was recorded that "in many of the collections of personal papers of former ministers and officials there were records which might be the property of the Commonwealth"[2].
260 Thirdly, there is "no adequate reason" for the convention proposed by the respondent[3]. No coherent principle could justify a convention that title to the originals of final correspondence, created and received as part of official duties, should vest in a holder of high public office to the exclusion of the Commonwealth. The principle of loyalty which underlies public office, and which precludes public officers from benefiting personally from their office[4], points to the opposite conclusion. Indeed, as the appellant observed, the effect of the convention suggested by the respondent is that the more controversial the correspondence the more wealth that would be created for the Governor-General.
261 The respondent relied upon a letter, dated 1 February 2017 and written in an attempt to clarify the position prior to the trial in this matter, from the Official
- ↑ Australia, Senate, Standing Committee on Education and the Arts (Reference: Archives Bill) 1978–79, Official Hansard Transcript of Evidence (1979) at 42–43.
- ↑ Australia, Senate Standing Committee on Education and the Arts, Report on the Archives Bill 1978 (1979) at 9 [3.9].
- ↑ Twomey, "Peering into the Black Box of Executive Power: Cabinet Manuals, Secrecy and the Identification of Convention", in Varuhas and Stark (eds), The Frontiers of Public Law (2019) 399 at 411.
- ↑ For instance, see The Earl of Devonshire's Case (1607) 11 Co Rep 89a [77 ER 1266]; Hornsey Urban Council v Hennell [1902] 2 KB 73 at 80; Attorney-General for Hong Kong v Reid [1994] 1 AC 324 at 330. See also Re Day [No 2] (2017) 263 CLR 201 at 250–251 [174]–[179], 272–273 [270]–[271].
