38.
correspondence was Sir John Kerr and that each act of creation or receipt was in his capacity as Governor-General. Where issue has been joined between them has been as to whether legal title at the time of creation or receipt vested in the Commonwealth as a body politic or in Sir John as an individual.
104 Both parties place reliance, in different ways and to different ends, on the constitutional nature of the offices held by the correspondents and on the constitutional nature of the relationship connoted by the prescription in s 2 of the Constitution that "[a] Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth". Both accept that the nature of the relationship between the Governor-General and the Queen during the period in which Sir John Kerr held the office of Governor-General had been shaped by developments that had occurred in the constitutional relations between the United Kingdom and Australia in the three-quarters of a century which had by then elapsed since the enactment of the Constitution in the last year of the reign of Queen Victoria. Those developments included recognition in the Balfour Declaration of the Imperial Conference in 1926 that the Governor-General "is not the representative or agent of [Her] Majesty's Government in Great Britain or of any Department of that Government", acceptance from at least the time of the appointment of Sir Isaac Isaacs as Governor-General in 1931 that the Monarch would act on the advice of the Australian Prime Minister in appointing the Governor-General[1], and ascription to Her Majesty by the Royal Style and Titles Act 1973 (Cth) for use in relation to Australia of the title "Queen of Australia"[2].
105 The argument for Professor Hocking at its widest, however, does not rely on the particular position of the Governor-General or on the particular relationship between the Queen and the Governor-General. The argument at its widest is that legal title to anything created or received by the holder of any constitutional or statutory office in his or her official capacity automatically vests in the Commonwealth as a body politic at the time of creation or receipt, and is accordingly immediately within the purview of the exercise of the executive power of the Commonwealth. The argument is sought to be supported by reference to cases which illustrate that a secret profit or private gain made by the holder of a
