39.
public office from misuse of that office can be held on constructive trust for the body politic to which the public office is appurtenant[1].
106 A moment's reflection on the adverse consequences the asserted doctrine would have on the separation of judicial power, and on the capacity of Senators and members of the House of Representatives to discharge their constitutional duties of holding the Executive Government of the Commonwealth to account[2], is sufficient to reject it. The case law on which the argument relies does nothing to support it. Necessarily implicit in recognition that a person who is the holder of a public office can be held liable to account by way of constructive trust for a secret profit or private gain is recognition that legal title to the profit or gain can vest in the person as an individual.
107 Concentrating on the uniqueness of the constitutional position of the Governor-General and on the peculiarity of the constitutional relationship between the Queen and the Governor-General, the narrower version of the argument for Professor Hocking is that the centrality of that relationship to the functioning of the Commonwealth as a body politic means that communications between the Queen and the Governor-General are inherently communications of the Commonwealth as a body politic. They are communications the content and means of which must fall within the purview of the Executive Government of the Commonwealth within the framework of responsible government established by Ch II of the Constitution. For those communications to be considered personal to the individuals involved, and for the physical embodiments of those communications to be privately owned by the individuals involved, is constitutionally unthinkable. An argument to that effect was accepted by Flick J in dissent in the Full Court[3].
108 The argument for the Director-General, presented by the Solicitor-General of the Commonwealth, is that legal title to a thing created or received by the holder of a constitutional office in his or her official capacity automatically vests in the Commonwealth as a body politic at the time of creation or receipt only if the holder of the constitutional office is then acting as an "emanation of the Commonwealth"
