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83.

Ministers[1]. The institution of the High Court of Australia and other federal courts of Australia will not automatically include the offices of the Justices or judges. And the institution of the official establishment of the Governor-General will not automatically include the office of the Governor-General. However, as will be seen below, things that are created or received for the institution and which are, or were, kept by the holders of those individual offices will be the property of the institution or, if the institution has no legal existence, the property of the Commonwealth as a body politic.

The Governor-General and the institution of "the official establishment of the Governor-General"

219 The office of Governor-General is not the institution of the official establishment of the Governor-General nor is it the Commonwealth as a body politic[2]. But it is closely related to both. The constitutional office of Governor-General has some independence[3] and involves public loyalty. As Mr Kingston said at the Convention Debates in 1897, if the Governor-General "does his duty conscientiously he need not fear anything, neither should he be driven from the strict course of duty by the hope of reward"[4]. Nevertheless, despite swearing an oath or making an affirmation to perform functions without fear or favour, many of the official acts performed by the Governor-General, particularly the exercises of executive power under's 61 of the Constitution, involve decisions taken upon advice of a Minister or the Executive Council[5]. Those exercises of power are official acts, creating documents that, if kept by the Governor-General, will be retained institutionally and owned by the Commonwealth as a body politic.

220 The enumerated institution, "the official establishment of the Governor-General", was not included in the early incarnations of the Archives Bill. Clause 18(1)(a) of the 1978 draft of the Archives Bill expressly provided that Divs 2 and 3 of Pt V do not apply to the "records of the Governor-General or of a former Governor-General". However, a Senate Standing Committee on Constitutional and Legal Affairs suggested that whilst there may be a need "for special treatment to be given to a few categories of records, such as judges'

  1. ↑ See also the Notes to Archives Act, ss 27 and 28.
  2. ↑ See Constitution, s 2.
  3. ↑ Constitution, s 3.
  4. ↑ Official Report of the National Australasian Convention Debates (Adelaide), 14 April 1897 at 633.
  5. ↑ Kline v Official Secretary to the Governor-General (2013) 249 CLR 645 at 661 [38].
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