88.
to send despatches which keep Her Majesty informed"[1]. The following was agreed by the parties as to the content of the correspondence:
"The majority of the letters exchanged between the Governor-General (including by means of his Official Secretary) and the Queen (by means of Her Private Secretary) address topics relating to the official duties and responsibilities of the Governor-General. Some of the letters sent by the Governor-General (including by means of his Official Secretary) take the form of reports to The Queen about the events of the day in Australia. Certain of these letters include attachments comprising photocopies of newspaper clippings or other items of correspondence, expanding upon and corroborating the information communicated by the Governor-General in relation to contemporary political happenings in Australia."
230 As will be seen, the title to the original documents, being the contents of Archives record AA1984/609, was held by the Commonwealth. It is therefore unnecessary to engage with the issue of whether Sir John Kerr manifested sufficient intention gratuitously to transfer title to those originals to the Commonwealth. The Commonwealth, as a body politic, had "property" in the original documents held in Archive record AA1984/609.
General law property principles and the Archives Act
231 It is curious that although huge intellectual effort has been devoted to the development of principles of administrative law regulating the authority by which public power is exercised, there has been far less focus upon the norms governing the manner of the exercise of authorised power and its consequences[2]. The parties to this case focused upon private law analogies, essentially relying on the Diceyan principle that government should be held to the same principles that apply between private persons[3].
232 The private law principle is that if the letters had been written by a person as an independent "professional" then the title to those letters would usually be held by that person[4] and when they are sent the title would usually be held by the
- ↑ Kerr, Matters for Judgment: An Autobiography (1978) at 329.
- ↑ See Smith, "Loyalty and politics: From case law to statute law" (2015) 9 Journal of Equity 130 at 144.
- ↑ Dicey, Lectures Introductory to the Study of the Law of the Constitution (1885) at 178–179, 200–201.
- ↑ Breen v Williams (1996) 186 CLR 71 at 89, 101.
