103.
266 In any event, it could hardly be supposed that confidences would be more likely to be protected if title to the correspondence were held privately, to the exclusion of the Commonwealth, so that the Governor-General personally could sell, publish or distribute the correspondence at any time. The respondent correctly observed that "no responsible Governor-General would ever do such a thing". But the reason this would not occur in Australia is the duty of loyalty that exists for original records kept of correspondence sent or received. This duty contrasts with the position in the United States, where Presidents do not regard themselves as "trustees for the American people" so that, absent voluntary arrangements for a Presidential Library, the institutional correspondence of a President can be sold "for a fancy sum" or can be the subject of arrangements, such as in the case of President Monroe, for publication with the profits to be divided among his daughters and son-in-law[1].
Conclusion
267 Orders should be made as follows:
1. Appeal allowed.
2. Set aside the orders of the Full Court of the Federal Court of Australia made on 8 February 2019 and, in their place, order that:
- (a) the appeal to the Full Court be allowed;
- (b) the orders of Griffiths J made on 16 March 2018 be set aside and, in their place, it be:
- (i) declared that the contents of Record AA1984/609 ("the deposited correspondence") constitute Commonwealth records within the meaning of the Archives Act 1983 (Cth);
- (ii) ordered that a writ of mandamus issue to compel the Director-General of the National Archives of Australia to reconsider Professor Hocking's request for access to the deposited correspondence; and
- (iii) ordered that the Director-General of the National Archives of Australia pay Professor Hocking's costs at first instance; and
- ↑ Nixon v United States (1992) 978 F 2d 1269 at 1278.
