101.
Secretary to the Governor-General to the Private Secretary to the Queen. In that letter, the Official Secretary said that his understanding was that "it is a matter of long-standing convention that non-official correspondence between the Monarch and Her Governors-General across the 15 Realms outside the United Kingdom are private and confidential communications, not forming part of any official government records". It was asserted that the reason for the convention was to enable the communication between the Queen and the Governor-General to be in confidence and thereby to permit and facilitate such communication. The reply from the Private Secretary to the Queen was no doubt written with considerable care and with the expressed permission for the letter to form part of the "official submissions to the Court". It did not acknowledge that the communications were "non-official" or that they did not form part of any official government records. The convention to which the Private Secretary referred was "a convention of confidentiality … 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".
262 The confidentiality of the correspondence to which the Private Secretary referred is entirely consistent with the marking of the correspondence between the Queen and the Governor-General as "personal and confidential". That labelling convention was explained in documentary exhibits from trial concerning correspondence from State Governors to the Queen through the relevant Secretary of State on general affairs in the State. The labelling convention was explained as requiring the use of "confidential" to describe correspondence which, although part of official despatches on general affairs in the State, contained the views of the Governor and not of their Ministers and the use of "personal and confidential" to describe correspondence that was confidential and also contained personal observations of a general nature.
263 Confidentiality is not a reason that could justify a convention that correspondence passing between the Governor-General and the Queen is never created or received by the Governor-General officially nor retained as part of the institution of the official establishment of the Governor-General. Whether or not the correspondence is created or received officially, and whether or not it is retained institutionally, the confidentiality of such correspondence is protected by the general law of confidence[1]. It is also protected by the categories of exemption to which Senator Hamer referred during the hearings concerning the Archives Bill before the Senate Standing Committee, including as "information or matter the disclosure of which under [the Archives Act] could reasonably be expected to cause
- ↑ Earl of Lytton v Devey (1884) 54 LJ Ch 293 at 295, citing Pope v Curl (1741) 2 Atk 342 at 342 [26 ER 608 at 608].
