12.
32 There remains finally to note an exchange of letters in February 2017 between the Official Secretary, who was then Mr Mark Fraser, and the Private Secretary, who was then Sir Christopher Geidt. The exchange occurred after Professor Hocking had commenced the proceeding for judicial review in the Federal Court and in contemplation of that proceeding. The Official Secretary initiated the exchange by writing to the Private Secretary attaching copies of an earlier letter from the Official Secretary, then Mr Stephen Brady, to the Private Secretary dated 7 April 2011 and of the Private Secretary's letter in reply dated 27 May 2011. In the context of discussing implications of the Freedom of Information Act 1982 (Cth), those earlier letters had recorded a firm mutual understanding that "correspondence between the Office and the Palace" occurred "in confidence". In the second of them, the Private Secretary had stated "we would assert that such correspondence is covered by a convention of confidentiality due to the constitutional position of the Sovereign and the Monarchy".
33 The Official Secretary's letter to the Private Secretary in February 2017 includes the following:
"It is the understanding of the Office of the Official Secretary to the Governor-General that it is a matter of long-standing convention that nonofficial correspondence between the Monarch and Her Governors-General across the 15 Realms outside the United Kingdom are private and confidential communications, not forming part of any official government records. We note that underpinning this convention is the fundamental British constitutional principle that communications between The Queen and Her Ministers and other public bodies should remain confidential, and that the political neutrality of The Queen and the Royal Family, and the Royal Household acting on their behalf, should be maintained. By extension, we understand communications with the vice-regal representatives of The Queen also fall within the terms of this principle. It is understood that this long-standing convention exists in order for The Sovereign and Her representatives in the Commonwealth Realms to communicate in confidence and thereby permits and facilitates such communications. The confidential nature of such correspondence, including correspondence between the Palace and the Office, has been confirmed in our exchange of letters dated 7 April 2011 and 27 May 2011 respectively … It appears to be very much a matter of mutual understanding that communications between The Queen and the Governor-General, and the offices of the Private Secretary and the Official Secretary respectively, are made on a confidential basis."
The letter goes on to refer to an understanding on the part of the Official Secretary that "The Queen's correspondence with Governors-General" received protection in
