102.
damage to the ... international relations of the Commonwealth"[1] or as "information or matter the disclosure of which under [the Archives Act] would constitute a breach of confidence"[2]. That protection, however, is neither absolute nor perpetual.
264 The labelling convention of "personal and confidential" is also not inconsistent with a characterisation of the correspondence as official or with its retention institutionally. Indeed, the trial exhibits in this matter include correspondence, disclosed under the open access provisions of the Archives Act, between Sir Paul Hasluck, the Governor-General prior to Sir John Kerr, and the Private Secretary to the Queen concerning quintessentially institutional matters such as the employment relationships in the official establishment of the GovernorGeneral. That correspondence was marked "Personal and Confidential". And even if it was once confidential it is no longer so: "a person who sends a communication to a public officer, relative to the public business, cannot make his communication private and confidential simply by labeling it as such. The law determines its character, not the will of the sender."[3]
Extreme consequences
265 The respondent submitted that a legal rule to govern the application of the meaning of "property" was needed because the consequence of permitting title to the original correspondence to be held by the Commonwealth would be that the correspondence "could be inspected within government and/or publicly released at any time of the Government's choosing". The implicit suggestion that information about which the Queen has rights to confidence might be publicly released by the executive in breach of duties of confidence upon which the Queen imparted the information, or that the executive would assert the property right of the Commonwealth as a body politic to discover the content of the correspondence at any time of the executive's choosing, is the type of extreme consequence that is of little assistance in the interpretation of legislative provisions[4].
- ↑ Archives Act, s 33(1)(a). See Australia, Senate, Standing Committee on Constitutional and Legal Affairs (Reference: Freedom of Information), Transcript of Evidence, 13 December 1978 at 714–715.
- ↑ Archives Act, s 33(1)(d).
- ↑ Egan v Board of Water Supply of New York (1912) 98 NE 467 at 470.
- ↑ See Love v The Commonwealth (2020) 94 ALJR 198 at 289 [455] and the authorities cited there; 375 ALR 597 at 711–712.
