40.
in creating or receiving the thing. Otherwise, the vesting of legal title is a matter of objectively determined intention. The Solicitor-General invokes in that respect the approach taken by the United States Court of Appeals for the District of Columbia in Nixon v United States[1] to conclude that "through mutually explicit understandings and uniform custom, Presidents retained an exclusive property interest in their presidential papers". The Solicitor-General points out that amongst the "presidential papers" held in that case to be owned by Richard M Nixon were "correspondence of the President and his staff"[2].
109 The Solicitor-General argues that, in circumstances where neither the Governor-General nor the Queen wrote as an emanation of the body politic, the "personal and confidential" labelling of the particular correspondence between them indicated their mutual objective intention to be that correspondence created or received by the Governor-General was not to be within the immediate purview of the Executive Government of the Commonwealth at the time of creation or receipt and therefore that legal title to the correspondence was not to vest in the Commonwealth as a body politic but rather in the individual who held the office of Governor-General. The Solicitor-General goes further to argue that such a mutual objective intention was not confined to the Governor-General and the Queen: "each relevant office-holder – whether at the Palace, Government House, the Lodge or the Archives – considered, and acted on the basis that, the [correspondence] belonged privately to Sir John and [was] not property of the Commonwealth". An argument much to that effect was accepted by Griffiths J at first instance[3] and by Allsop CJ and Robertson J in the majority in the Full Court[4].
110 The Solicitor-General seeks to support the inference of that objective intention by submitting that this Court should recognise the existence, now and throughout the period in which Sir John Kerr held the office of Governor-General, of a "longstanding convention that communications between the Governor-General and the Queen are confidential, and do not form part of the official records
