99.
Queen is "difficult to substantiate" upon Jennings' approach for three reasons[1]. First, prior to 1983, Commonwealth record-keeping was "haphazard and little regulated". If they were not lost, vice-regal records were sometimes kept by Governors-General or their families, sometimes kept by national institutions and sometimes archived on government files.
258 Secondly, the precedents in relation to the manner in which vice-regal records are handled are, at best, "thin"[2]. The respondent's overstatement of the position of some of the relevant actors has already been mentioned. More fundamentally, some of the thin precedents relied upon by the respondent would support a wider convention than that relied upon by the respondent, extending to all correspondence between the Governor-General and the Queen, whether or not it was confidential. For instance, only "some" of the correspondence between Lord Casey and the Queen or her Private Secretary, which he took with him at the end of his term as Governor-General, was confidential[3].
259 In addition to the weakness of the precedents, there is also the lack of evidentiary support for the submission that the behaviour of the relevant actors is attributable only to a belief in an underlying norm that the original correspondence was personal and was not official. For instance, even if Sir Paul Hasluck believed that he held property rights to the exclusion of the Commonwealth in the personal and confidential correspondence between him and the Queen during his tenure as Governor-General, there is no evidence to suggest that he saw those property rights as arising due to an understanding that correspondence with the Queen must be treated as non-institutional. A similar point was made by the Director-General of the Australian Archives in evidence to a committee consideration of the draft Archives Bill about the practice of public servants and Ministers in treating official papers as if they were personal records. Even if this were not done knowingly, the
- ↑ Twomey, "Peering into the Black Box of Executive Power: Cabinet Manuals, Secrecy and the Identification of Convention", in Varuhas and Stark (eds), The Frontiers of Public Law (2019) 399 at 410–411.
- ↑ Twomey, "Peering into the Black Box of Executive Power: Cabinet Manuals, Secrecy and the Identification of Convention", in Varuhas and Stark (eds), The Frontiers of Public Law (2019) 399 at 410.
- ↑ Hocking v Director-General of National Archives of Australia (2018) 255 FCR 1 at 14 [23].
