By Dr George Venturini

On 20 October 2016 Professor Hocking applied to the Federal Court of Australia for the release of a bundle of letters between Kerr and the Queen, which release had been denied by the National Archives of Australia (Archives) on 10 May 2016 on the stated basis that the documents were not “Commonwealth records”.

The events which had brought the parties before the Federal Court were as follows: on 10 July 2011 Professor Hocking made an application under the Archives Act 1983 for access to a bundle of records (M4513), which bundle comprised an almost complete copy of AA1984/609. Access to M4513 was declined by Archives on the basis that the documents were not Commonwealth records, but rather were said to be personal and private correspondence between The Queen and the Governor-General, access to which fell to be determined by instructions in the Instrument of Deposit.

On 31 March 2016 Hocking lodged a request for access to the documents comprising AA1984/609. Access was refused by Archives in a letter dated 10 May 2016, which stated that the documents were not a “Commonwealth record” and were not subject to the Act. Relevantly, the letter stated:

“… Record AA1984/609 was deposited on 8 September 1978. It is not a ‘Commonwealth record’ and is not subject to the access provisions under the Archives Act 1983 (Archives Act) for the same reasons as Record M4513.

The mere fact that the documents may have connection with office of the Governor-General does not mean that such documents are the property of the Commonwealth. Nor is it correct to conflate the role of the Governor-General with that of ‘the Commonwealth’.

Record AA1984/609 remains under the effective and immediate control of the Office of the Governor-General through the Official Secretary of the Governor-General. The NAA has custody of the record in accordance with ss 5(2)(f) and 6(2) of the Archives Act. It does not have power or authority to give access to the record other than in accordance with the instrument of deposit and arrangements specified by the offices of the Queen and the Governor-General.”

The case was heard on 31 July 2017 and 6 September 2017.

As Griffith J. wrote in his judgment, “It is common ground that this decision by Archives cannot be reviewed by the Administrative Appeals Tribunal (AAT). The present proceedings are in the nature of a judicial review of the decision dated 10 May 2016 pursuant to s 39B of the Judiciary Act 1903 (Cth). Notices were issued under s 78B of the Judiciary Act 1903 (Cth), on the basis that determination of whether AA1984/609 is a Commonwealth record as defined in the Act involves a consideration of the relationship between the Governor-General and the Commonwealth under the Commonwealth of Australia Constitution Act (Constitution), and the respective roles of, and the relationship and communication between, The Queen and the Governor-General under the Constitution.” (Hocking v. Director-General of National Archives of Australia [2018] FCA 340, Para. 8).

The contention of the Archives was that the documents “were said to be Sir John’s personal property which the Archives had custody of in accordance with the transitional and other relevant provisions of the Act.” Archives said that it did “not have power or authority to give access…other than in accordance with the instrument of deposit and arrangements specified by the offices of The Queen and the Governor-General”. (Id., Para. 2).

The central question in the proceeding was whether or not the relevant records were Commonwealth records, with the consequence that public access to them would be governed by Div 3 of Pt V of the Act, and not the terms of the instrument (or letter) of deposit.

Under those terms of deposit:

(a) the documents in AA1984/609 were described as the “personal and confidential correspondence” between Sir John and The Queen;

(b) reference was made to “The Queen’s wishes and Sir John Kerr’s instructions” that the papers were to remain closed for 60 years until after the end of Sir John’s appointment as Governor-General, i.e. until after 8 December 2037; and

(c) a further condition on access was that “release after 60 years should be only after consultation with the Sovereign’s Private Secretary of the day and with the Governor-General’s Official Secretary of the day”. (Paras. 3 and 4).

Appearing for Professor Hocking (hereafter ‘the applicant’), Mr. A. P. Whitlam QC, with Mr. Brennan submitted that “the reference to “Commonwealth record” in s. 31(1A) of the Act is a jurisdictional fact upon which the duty in s. 31(1) and the correlative right in s. 36(1) depend. This was not disputed by Archives. I will proceed on that basis. (Para. 49)

The applicant identified the following three remaining issues for determination:

(a) Are records of the Governor-General which are “Commonwealth records” within the meaning of the Act limited to administrative records of the official establishment of the Governor-General?

(b) Is one or more of the records constituting AA1984/609 a “Commonwealth record”?

(c) In the alternative to question (b), did Archives exceed its jurisdiction by reasoning that AA1984/609 did not contain “Commonwealth records” because it was not the property of the official establishment of the Governor-General? (Para. 50).

The applicant submitted that the matters relevant to statutory construction in this case included the following:

“Commonwealth record” is relevantly defined in s 3 to mean a record that is the property of the Commonwealth or of a Commonwealth institution;

the definition of “record” in s 3 focuses upon the physical object, being a document for example, as opposed to the information which is recorded;

“Commonwealth institution” is defined relevantly in s 3 to include the official establishment of the Governor-General, as well as other bodies such as the Executive Council and a Federal court. The notion of a “Commonwealth institution” is relevant to the operation of duties etc created by Div 2 of Pt V of the Act;

because a body such as the official establishment of the Governor-General cannot own property, if a record is the property of the Commonwealth, it is a “Commonwealth record” irrespective of whether it is also the property of a Commonwealth institution.” (Para. 51).

The applicant submitted that it is no part of the function of the Governor-General to act as a delegate or agent of The Queen; rather ss. 2 and 61 of the Constitution confer Vice-Regal status. The applicant relied upon the record of proceedings of the 1926 and 1930 Imperial Conferences in support of her submission that:

“(a) the form, content of and participants in communications with The Queen concerning the government of Australia have been regarded, by no later than 1930, as matters to be determined by the government of the Commonwealth of Australia; and

(b) communications with The Queen concerning the appointment of a Governor-General (and his or her recall) are matters which the government of the Commonwealth of Australia agreed with other imperial governments were to be the subject of communication between The Queen and the Australian Prime Minister.” (Para. 52).

The applicant described AA1984/609 as involving various parts, consisting of the originals of letters and telegrams and certain attachments received by, and contemporaneously made copies of correspondence sent by, Sir John Kerr or his Official Secretary to and from The Queen by means of her Private Secretary between 1974 and 1977. The applicant submitted that the practice of providing periodical briefings to The Queen was viewed by Sir John as a duty of his office as Governor-General. She submitted that both Sir John and his Official Secretary, Mr David Smith, regarded the correspondence as official, not personal. (Para. 53).

The applicant contended that the following inferences could be drawn from the limited evidence before the Court regarding the contents of the records comprising AA1984/609:

“(a) Sir John’s letters to The Queen constituted a regular reporting by him of events of his Governor-Generalship;

(b) included in the bundle is a letter dated October 1975 from The Queen’s Private Secretary (Sir Martin Charteris) to Sir John concerning the approach which The Queen would take in the event that she were advised by her Australian Prime Minister to recall Sir John;

(c) the bundle included a letter from Sir John to The Queen in which he reported that Prime Minister Whitlam had raised with both Sir John and the visiting Prime Minister of Malaysia the prospect that Prime Minister Whitlam would advise The Queen to recall Sir John;

(d) the bundle included another letter from Sir John to The Queen in which he recounted his recollection about a discussion he had with Prime Minister Whitlam which resulted in the termination of Mr Whitlam’s commission; and

(e) the bundle also included detailed reports of what happened with respect to the supply crisis of 1975.” (Para. 54).

The applicant submitted that the Court should find that the documents in AA1984/609 are solely concerned with the government of the Commonwealth and include communications concerning the possible recall of the Governor-General and advice from the Prime Minister concerning those matters. (Para. 55).

The applicant’s core submission was that communications by constitutional officeholders and the performance of their office concerning the government of the Commonwealth are communications engaged in for the purpose of the body politic and belong to the Commonwealth as a body politic. In other words, any such written communications are Commonwealth property. (Para. 56).

The applicant highlighted the history of the lodgement of Sir John’s papers with Australian Archives. Some of these actions occurred prior to the commencement of the Act. There was an arrangement that all of Sir John’s papers would be lodged with the then Australian Archives and, presumably, be administered in accordance with the official policy relating to such papers. At Sir John’s request, Mr. Smith made copies of the Palace letters and sent them to Sir John in London. The documents comprising AA1984/609 were lodged with Australian Archives by Mr. Smith under cover of a letter dated 26 August 1978, i.e. prior to the commencement of the Act (see Para. 18). (Para. 57).

The applicant emphasised that Mr. Smith did not assert that the documents were the property of any person other than the Commonwealth. In the letter of deposit, Mr. Smith described the package as containing the “personal and confidential correspondence” between Sir John and The Queen. He stated that Sir John’s instructions and The Queen’s wishes were that the papers were to remain closed for 60 years and that access should be given after that time only after consultation with The Queen’s Private Secretary and the serving Governor-General’s Official Secretary. The applicant submitted that Sir John only learned of the last condition in February 1980. She submitted that Mr. Smith imposed the condition and exercised a property right in the material. (Para. 58).

The applicant submitted that through the then Secretary of the Department of Prime Minister and Cabinet (Sir Geoffrey Yeend), the Commonwealth also asserted Commonwealth ownership in other correspondence of Sir John, which is reflected in Mr. Smith’s letter dated 20 May 1980 (see Para. 20).

“Post the 20 May 1980 letter, Commonwealth officials considered that all records of Sir John’s time as Governor-General should be lodged with Australian Archives. On 10 November 1983, Sir John offered to lodge 9 cartons (later revised to 11 cartons) of papers with Australian Archives. Sir John said in a letter dated 7 February 1984 that noone but himself or an authorised person should have access to those papers. The 11 cartons were sent to Australian Archives but when Sir John learned on 8 August 1984 that the Act (which had only just recently commenced) applied to any Commonwealth records among his papers, he progressively withdrew many of the cartons until, by 15 April 1987, only one remained. Ultimately it too was removed and returned to Sir John’s Private Secretary shortly after his death in 1991. These cartons do not include the records which are the subject of these proceedings. The applicant submitted, however, that the history of the 11 cartons suggests that they were owned by Sir John and that it should be inferred that he did not consider that he could withdraw AA1984/609.” (Para. 59).

The reduction of the embargo period from 60 to 50 years is explained in a letter dated 23 July 1991 (see Para. 22). The letter was written by the then Official Secretary to the Governor-General. As noted above, the reduction resulted from a decision made by The Queen. The applicant submitted that the Official Secretary was exercising a property right in AA1984/609 in implementing this change. (Para. 60).

In support of her alternative case, the applicant challenged Archives’ view that the Act only applies to records which form part of the official establishment of the Governor-General. The applicant submitted that Archives applied the wrong test because the question of whether a document is the property of the Commonwealth is not answered by whether it is either a personal and confidential communication or a formal official communication. Accordingly, the applicant submitted that the statement of reasons given by Archives indicated that it had exceeded its jurisdiction. (Para. 61).

It had already been noted that the applicant tendered without objection the Supplementary Tender Bundle. It included a copy of a Cabinet Minute relating to the draft Archives Bill in October 1977. It was submitted that the material indicated that there was an assumption that the records of former Governors-General were Commonwealth records (see Para. 26). The applicant submitted that this is what Prime Minister Fraser had in mind when he wrote his letter to Sir John (see Para. 14). (Para. 62).

Mr. A. P. Whitlam QC, who appeared with Mr. T Brennan for the applicant, submitted that, on the approach of Archives, unintended and unacceptable consequences would flow. This was because, if the correspondence between the Governor-General and The Queen remained the property of the Governor-General or the beneficiaries of his or her estate, this would mean that, in the case of Sir John Kerr, his executrix would be entitled to ask for the official records to be returned to her as the estate’s property and that she could do with them whatever she wished, including selling them at auction. (Para. 63).

Appearing for the Archives, Mr. T. Howe QC, a member of AGS, a group within the Australian Government Attorney-General’s Department providing legal services to government by way of assisting the Attorney-General in the role of First Law Officer, as well as advising the Executive Government and all Commonwealth agencies, with Mr. C. Lenehan and Ms. D. Tucker, made the following core submissions:

“(a) The relevant records are not the property of either a “Commonwealth institution” or the “Commonwealth” under general law, but rather are the personal property of Sir John. It is unnecessary to determine what proprietary interests The Queen has in the records if the Court accepts that the records are the property of Sir John and are not Commonwealth records. If the records are found to be the property of the official establishment of the Governor-General, an issue would arise as to whether they are also jointly owned with The Queen.

(b) The text, context (including relevant conventions) and the legislative history of the Act show that it was never intended that personal and private correspondence between the Governor-General and The Queen would fall within the definition of a Commonwealth record.

(c) The relevant records are held by Archives pursuant to an arrangement under ss 5(2)(f), 6(1)(c) and 6(2) of the Act, which arrangement is based upon the records being Sir John’s personal property. Although the records were lodged with Archives before the Act commenced, Sir John’s arrangement is covered by s 6(2) by reason of the transitional provisions in s 70(3).

(d) For these reasons, the records are not “Commonwealth records” and are not subject to the access provisions under Div 3 of Pt V. Instead, access is determined by the terms of the letter of deposit.” (Para. 64).

On the proper construction of the Act, Archives emphasised a property-based approach to the definition of “Commonwealth records”. Archives submitted that it was not intended that the Act would apply to records not owned by the Commonwealth, or a Commonwealth institution, under the general law. Accordingly, the existence of property rights in a record by a person or an entity other than the Commonwealth, or a Commonwealth institution, meant that the record is not a Commonwealth record within the statutory definition, so Archives submitted. (Para. 65).

On the meaning of the term “official establishment of the Governor-General”, Archives emphasised that there is no definition of that concept in the Act, nor is that a phrase employed elsewhere in Commonwealth legislation, including the Governor-General Act 1974 (Cth) (Governor-General Act). Archives submitted that the expression refers to persons who assist and support the Governor-General’s performance of official duties, i.e. the Official Secretary and his or her staff. This aligns the expression with the cognate expression “the Vice-Regal establishment”, as referred to in Peter Boyce’s text, The Queen’s Other Realms, Federation Press, 2008 at pp 140-141 and 184-185. Prior to amendments to the Governor-General Act in 1984, the Official Secretary had been an officer of the Australian Public Service seconded to the Governor-General’s staff from the Department of the Prime Minister and Cabinet. Further amendments in 1999 created the Office of the Official Secretary to the Governor-General, which has the task of assisting the Governor-General under s 6(3). The nature of that “assistance” was discussed by the High Court in Kline v Official Secretary to the Governor-General [2013] HCA 52; 249 CLR 645 (Kline) at [13]. Archives submitted that the reasoning in Kline does not support the proposition that non-official records of personal and private correspondence between the Governor-General and The Queen are the property of the official establishment of the Governor-General. (Para. 66).

At this point Griffith J. promised that he would have further returned to discuss the Kline case noting, however, that it related to the proper construction of different legislation. (Para. 66).

In any event, Archives submitted that the Governor-General is not relevantly a “Commonwealth institution” and that the Act treats the Governor-General as different from the Commonwealth and other organs of government which are included in the term “Commonwealth institution”. Archives submitted that the correspondence did not involve the exercise of the executive power of the Commonwealth by Sir John under s. 61 of the Constitution, but rather involved Sir John acting personally and privately. (Para. 67).

Mr. T. Howe QC took the Court to extensive material relating to the practices of previous Governors-General concerning personal correspondence between the Vice-Regal and The Queen. (Para. 68).

Mr. Howe began his lengthy excursus by referring to Lord Stonehaven, who was Governor-General from 1923 to 1930. “He took his personal correspondence with him and it was tracked down by the National Library in 1968. At that time Archives was part of the Department of Prime Minister and Cabinet. Archives pointed out that the tracking down was done not by its predecessor (Australian Archives), but by the National Library.“

In that case, the documents were in the possession of Lord Stonehaven’s son. The correspondence was treated as the personal property of the Governor-General, so Archives submitted. (Para. 69).

There were seven Governors-General in the period 1930-1965. The Court was asked to infer that each would have periodically briefed The Queen. Archives holds no records of any of these seven Governors-General. Thus, Archives contended that it should be inferred that such correspondence was not regarded as Commonwealth records. (Para. 70).

“Lord Casey was Governor-General from 1965 to 1969. Archives submitted that it may be inferred that Lord Casey took his papers with him at the end of his term as Governor-General and that his property then passed to his widow when he died. Lady Casey died in 1983. Although the precise date is unclear, Lord Casey’s former secretary lodged Lord Casey’s papers with Archives, presumably prior to 1991 and after the Act commenced. Archives contended that the express reference to the 60 year period in the instrument of deposit suggests that it was considered at the time that Lord Casey’s papers were not Commonwealth records, otherwise the 30 year rule would have applied. Archives also emphasised that the Department of Prime Minister and Cabinet did not oppose the 60 year period being part of the arrangement under which Lord Casey’s papers were handed to Archives.” (Para. 71).

Archives submitted that “it was significant that a similar approach was taken by Sir Paul Hasluck, as is reflected in the arrangements of deposit of his papers and the distinction which was drawn there between the 30- and 60-year periods. Sir Paul lodged a locked case which contained three categories of documents. The first category was described as Royal correspondence. Under the arrangement, this category attracted a 60-year period, as opposed to the 30-year period for the other categories, which were apparently regarded as Commonwealth records. (Para. 72).

There was a meeting between Sir Paul Hasluck and the Director-General of Archives on 4 November 1986, which is approximately two years after the Act had commenced. Archives submitted that the Director-General’s letter dated 6 November 1986 makes clear that Sir Paul viewed the Royal correspondence as not being a Commonwealth record nor the property of the official establishment of the Governor-General. The instrument of deposit concerning Sir Paul’s records expressly distinguishes between the 30 year and 60-year constraints. There is a reference in the schedule to the instrument of deposit to the “sealed briefcase of papers”. (Para. 73).

Archives submitted that “this material is relevant to the issue of the state of mind of the particular individuals involved, who regarded the relevant material as the personal property of the relevant Governor-General, and not the property of either the Commonwealth or the successor Governor-General. Emphasis was placed on the fact that Sir Paul was the immediate predecessor to Sir John, that he had a particular interest in the subject matter of archives, was viewed as an expert in the area, and that he considered Royal correspondence to be his personal correspondence. Reference was also made to a lecture given by Sir Paul in 1972, which was later published in 1979, with particular reference to Sir Paul’s statement concerning the strictly confidential nature of his notes of conversations with the Prime Minister. It was submitted that it should be inferred that Sir Paul held the same view in respect of his communications with The Queen.” (Para. 74).

As to the papers in AA1984/609, Archives submitted that the Court should find that the material was provided by Mr. David Smith, acting in his official capacity as Official Secretary, but also as agent of Sir John. Emphasis was placed on the fact that the materials were not lodged by Sir Zelman Cowen, who was Sir John’s successor as Governor-General when Mr. Smith provided the papers to Archives. (Para. 75).

Archives drew attention to the different approach which was taken concerning correspondence to and from a Governor-General with persons other than The Queen. This was said to be reflected in Sir John’s letter dated 3 March 1980 (see Para. 19) and Mr. Smith’s reply (see Para 20). (Para. 76).

“Archives relied on the approach taken by Sir Zelman Cowen, as is reflected in a letter dated 14 June 1984 and written by Mr Smith as Official Secretary to the Governor-General, i.e. 8 days after the Act commenced and two years after Sir Zelman had finished his term as Governor-General. That letter is a letter of deposit with Archives of what is described as “personal and confidential correspondence” between Sir Zelman and The Queen. The letter of deposit contained, in substance, the same two paragraphs as in the second and third paragraphs of the letter of deposit dated 26 August 1978 in respect of Sir John’s papers (see Para. 18). (Para. 77).

Archives submitted that there was no evidence to suggest that any Governor-General after Sir Ninian Stephen (1982-1989) lodged any Royal correspondence with Archives. Sir Ninian’s correspondence with The Queen was lodged under an arrangement made pursuant to s 6(2) of the Act and was not viewed as Commonwealth records. Archives also referred to the current view in the United Kingdom that such material is not caught by the Act.” (Para. 78).

As to the relevance of Senator Evans’ statement in the Second Reading Speech to the 1983 Archives Bill that the Bill did not apply to the Governor-General’s “private or personal records”, Archives submitted that this should not be read narrowly as referring only to entirely personal matters like birthday cards, bank statements etc. (Para. 79).

Summing up, Archives’ primary submissions were as follows:

“the Vice-Regal correspondence with the Crown is highly sensitive and unique in character;

consideration has to be given to the fact that there is counterpart correspondence in the United Kingdom, where such correspondence is closely protected. It should not be assumed that the Australian Parliament would have intended to disturb that state of affairs or create an inconsistency between the position in the two countries;

the notion of the correspondence being totally confidential and not the property of the Commonwealth is consistent with convention;

all interested persons viewed such correspondence as the personal property of the Governor-General, namely the various Governors-General themselves, Buckingham Palace, the official establishment of the Governor-General and the Commonwealth itself; and

under general property law, the correspondence cannot be regarded as the property of the Commonwealth. The 1977 Archives Bill was subsequently changed so as to distinguish between the Governor-General and the official establishment of the Governor-General. If there was any intention to change the common understanding, there would have been clearer language or some reference in the extrinsic materials. (Para. 80).

“Mr. Howe QC submitted that the presumption of regularity applied so that, in the absence of evidence to the contrary, it should be presumed that the relevant various Directors-General had authority to enter into the arrangements with various Governors-General concerning the custody of correspondence to and from the Palace. Mr. Howe QC then went a step further and submitted that it should be presumed that the Director-General was satisfied that none of the correspondence in AA1984/609 was a “Commonwealth record” when custody was accepted in August 1978.” (Para. 81).

Finally, Mr. Howe QC submitted that, in briefing The Queen in writing, the Governor-General was not exercising the powers in s. 61 of the Constitution, but was rather acting in his in personam capacity and dealing with his property, possibly in common with The Queen who may also have a proprietary interest. (Para. 82).

Continued Saturday – Medieval combat for ‘the Palace letters’ (part 4)

Previous instalment – Medieval combat for ‘the Palace letters’ (part 2)