By Dr George Venturini

In Hocking v. Director-General of the National Archives of Australia [2019] FCAFC 12 (8 February 2019) Mr. B. Walker SC with Mr. T. Brennan appeared for the appellant and Dr. S. Donaghue QC SG with Mr. C. Lenehan and Ms. D. Forrester for the respondent.

The Court ordered that the appeal be dismissed and that the appellant pay the respondent’s costs in the sum of $30,000.

Justices Allsop CJ and Robertson J gave the following reasons for their judgement, while Justice Flick dissented.

“Introduction

1. This appeal is from the order of the primary judge made on 16 March 2018 dismissing an originating application dated 20 October 2016. That application, as amended, concerned “the records indexed at the National Archives of Australia as AA1984/609” (records) and sought a declaration that those records were Commonwealth records within the meaning of the Archives Act 1983 (Cth).
2. It was an agreed fact between the parties that the records comprised six parts which consisted of the originals of correspondence received by, and contemporaneously made copies of correspondence sent by, the former Governor-General Sir John Kerr or his Official Secretary to and from The Queen by means of Her Private Secretary. It was further agreed that the records comprised letters and telegrams and certain attachments to that correspondence (for example, newspaper clippings and letters), the period of the correspondence being 15 August 1974 to 5 December 1977.
3. The records were lodged with the National Archives of Australia (the Archives) on 26 August 1978 by Mr David Smith, as Sir David then was, in his capacity as Official Secretary to the Governor-General.
4. Access by the appellant to those records was refused by letter dated 10 May 2016, that letter stating that the records were not a “Commonwealth record” and were not subject to the access provisions of the Archives Act. Relevantly, the letter stated:

Record AA1984/609

5. 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.
6. The mere fact that the documents may have connection with office (sic) 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’.
7. 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.
8. The proceedings at first instance were in the nature of judicial review of the decision dated 10 May 2016, this Court having jurisdiction under s 39B of the Judiciary Act 1903 (Cth), although the appellant sought a declaration “that the records indexed at the National Archives of Australia as AA1984/609 are Commonwealth records within the meaning of the Archives Act 1983.”
9. The Court was not at first instance, and is not on appeal, concerned with the merits of the decision or whether it would be beneficial to the appellant or others to have access to the records. Section 43 of the Archives Act, allowing for applications to the Administrative Appeals Tribunal for review on the merits of certain decisions, is not applicable.
10. Both at first instance and on appeal the parties agreed it was unnecessary for the Court to examine the records in order to determine the issues.
11. The proceedings concern only the legal correctness of the decision of the Archives that the records were not a “Commonwealth record” as defined in s 3(1) of the Archives Act on the basis that the records were not “the property of the Commonwealth”. The proceedings do not concern whether the records should be made available as a matter of public interest or whether or not a ground of exemption under s 33 could be made out. It is clear that the records relate to the history and government of Australia.
12. The appeal is to be determined as a matter of Australian law, principally the Archives Act, and therefore we have considered and construed the provisions of that Act.”

The Notice of Appeal

…

10. The grounds of appeal were as follows:

Grounds of appeal

1. The trial judge erred at TJ [107] in deciding that the documents comprising record AA1984/609 (“Records”) were not the property of the Commonwealth but were rather the personal property of Sir John Kerr, when:

(a) the trial judge should have found that the Records or some of them were the property of the Commonwealth because they were created or received by the Governor-General in the performance of his office and concern the government of the Commonwealth of Australia;
(b) further, and in the alternative, to the extent that the perceptions as to ownership of the Records of Sir John Kerr, the Queen or the Commonwealth were relevant to determining whether any of the Records were the property of the Commonwealth, as found at TJ [107], the trial judge should have inferred that:

(i) Sir John Kerr, Buckingham Palace and other relevant Commonwealth officials perceived that correspondence between Sir John Kerr acting in his capacity as Governor-General and the Queen was government property; and
(ii) Sir John Kerr, Buckingham Palace and other relevant Commonwealth officials perceived that there existed a governmental convention by which Sir John Kerr as Governor-General and later a former Governor-General was entitled to retain custody of the Australian records of that correspondence and, subject to any contrary direction by Buckingham Palace or the Official Secretary to the Governor-General to determine the conditions upon which access to those records was to be had once custody was transferred to a relevant archival institution.

2. The trial judge erred at TJ [155] in relation to the Applicant’s alternative case. The trial judge should have found that the National Archives of Australia (Archives) had, in error which was jurisdictional, decided that the Records were not the property of the Commonwealth by reference to whether they were a “personal and confidential communication” on the one hand or “a formal or official communication” on the other.

Other errors

3. The trial Judge erred at TJ [118] in reasoning that clear and explicit language would be required to produce an outcome which involved significantly different rules of access applying to archival resources of the Commonwealth and the law of the United Kingdom which the trial judge found applied to records of the correspondence between the Governor-General and the Queen.
4. The trial Judge erred at TJ [128] in reasoning that it was not a necessary consequence of his finding that the Records were the personal property of Sir John Kerr that a successor in title to Sir John Kerr has a present entitlement to retrieve from Archives and destroy those Records.
5. The trial Judge erred at TJ [129] in holding there was no evidence to indicate that any of the 11 cartons lodged by Sir John Kerr with Archives and later withdrawn from Archives by him included correspondence of the character of the documents constituting the Records. The trial judge should have found, on the basis of a file note of the Director-General of Archives dated 22 June 1998 that at least one of those cartons included records of the character of the Records.

Only Ground 1 was pressed. Ground 2 was abandoned and Grounds 3-5 were described in the appellant’s written submissions at [6] as concerning factual errors of no consequence independent of Ground 1.

The Archives Act

…

11. The Archives Act commenced on 6 June 1984. It will be necessary a little later to describe its provenance and history, by reference to extrinsic materials, as a matter of context. But we begin with the text.
12. A central provision is s 3(2) which states that the “archival resources of the Commonwealth” consist of such Commonwealth records and other material as are of national significance or public interest and relate to, amongst other things, the history or government of Australia; the legal basis, origin, development, organisation or activities of the Commonwealth or of a Commonwealth institution; or a person who is, or has at any time been, associated with a Commonwealth institution.
13. “Commonwealth institution” is defined to mean, amongst other things, “the official establishment of the Governor-General”. The Governor-General himself or herself is not a “Commonwealth institution” as defined.
14. There is no doubt that the records presently in issue are included in the archival resources of the Commonwealth. The question on which this case turns is whether they are a “Commonwealth record” as defined in s 3(1) as follows:

Commonwealth record means:

(a) a record that is the property of the Commonwealth or of a Commonwealth institution; or
(b) a record that is to be deemed to be a Commonwealth record by virtue of a regulation under subsection (6) or by virtue of section 22;
but does not include a record that is exempt material.

“Property” is not defined. As we have said, “Commonwealth institution” is defined to mean, amongst other things, “the official establishment of the Governor-General”. It is also defined to include “an authority of the Commonwealth”. There is no definition of “the official establishment of the Governor-General”.

15. The Archives Act states its objects:

…

2A Objects of this Act

The objects of this Act are:

(a) to provide for a National Archives of Australia, whose functions include:

(i) identifying the archival resources of the Commonwealth; and
(ii) preserving and making publicly available the archival resources of the Commonwealth; and
(iii) overseeing Commonwealth record-keeping, by determining standards and providing advice to Commonwealth institutions; and

(b) to impose record-keeping obligations in respect of Commonwealth records.

16. By s 5(2), one of the functions of the Archives is to ensure the conservation and preservation of the existing and future archival resources of the Commonwealth. Another function of the Archives is to determine the material that constitutes the archival resources of the Commonwealth.
17. Some attention was directed in argument to the following powers of the Archives:

6 Powers of Archives

…

(2) Where, in the performance of its functions, the Archives enters into arrangements to accept the care of records from a person other than a Commonwealth institution, those arrangements may provide for the extent (if any) to which the Archives or other persons are to have access to those records and any such arrangements have effect notwithstanding anything contained in Division 3 of Part V.

(3) Where an arrangement entered into by the Archives to accept the care of records from a person other than a Commonwealth institution relates to a Commonwealth record, then, to the extent that that arrangement, in so far as it relates to such a record, is inconsistent with a provision of Part V, that provision shall prevail.

18. By virtue of the transitional provisions in s 70, where records were in the custody of Australian Archives immediately before the commencement of the legislation under arrangements by which the custody of the records was accepted from a person other than a Commonwealth institution by the Commonwealth, those arrangements (including any provision of those arrangements concerning access to or disposal of those records) have effect as if they were made after that commencement by that person with the Archives and s 6(2) applies accordingly. By virtue of s 6(3) a later arrangement which relates to a Commonwealth record is to that extent subject to Part V of the Archives Act – Commonwealth records.
19. It is convenient at this point to set out the definition of “authority of the Commonwealth” in s 3(1), as follows:

authority of the Commonwealth means:

(a) an authority, body, tribunal or organization, whether incorporated or unincorporated, established for a public purpose:

(i) by, or in accordance with the provisions of, an Act, regulations made under an Act or a law of a Territory other than the Northern Territory;
(ii) by the Governor-General; or

(iii) by, or with the approval of, a Minister;

(b) the holder of a prescribed office under the Commonwealth; or
(c) a Commonwealth-controlled company or a Commonwealth-controlled association;
but does not include:

(d) a court;

(e) the Australian Capital Territory;

(f) a body established by or under an enactment within the meaning of the Australian Capital Territory (Self-Government) Act 1988;

(g) the Northern Territory; or

(h) the Administration of an external Territory.

It is clear that the Governor-General is not an authority of the Commonwealth within that definition. By s 2 of the Australian Constitution, a Governor-General is appointed by the Queen and is Her Majesty’s representative in the Commonwealth. As French CJ, Crennan, Kiefel and Bell JJ said in Kline v Official Secretary to the Governor-General [2013] HCA 52; 249 CLR 645 at [33]:

…The Governor-General is appointed by Letters Patent, pursuant to s 2 of the Australian Constitution, and therefore does not hold office in accordance with the provisions of an enactment of the federal Parliament or an Order-in-Council…
(Footnote omitted.)

20. Turning to the operative provisions of the Archives Act, s 31 applies to a Commonwealth record that, relevantly, is in the open access period and is in the care of the Archives. By s 3(7) the open access period for a record which came into existence before 1980 is 1 January in the year that is 31 years after the creation year. By s 31(1), subject to Part V, the Archives must cause the record to be made available for public access. No question has yet arisen as to whether or not the records in issue are or contain an exempt record. For example, there has been no determination of whether or not the records contain information or matter the disclosure of which under the Archives Act would constitute a breach of confidence within s 33(1)(d). If the records are a Commonwealth record the issue of whether or not they are or contain an exempt record would be for another day.
21. By s 36, where the Archives is required by Part V to cause a record to be made available for public access, subject to that Part, any person is entitled to access to the record.
22. By s 56(1), the Minister may, in accordance with arrangements approved by the Prime Minister, cause all records in a particular class of Commonwealth records not in the open access period to be available for public access. By s 56(2), the Minister may, in accordance with arrangements approved by the Prime Minister, cause Commonwealth records to be made available to a person in such circumstances as are specified in the regulations notwithstanding that the Commonwealth records concerned are not otherwise available for public access under the Archives Act. As is evident, both of those provisions depend on whether or not the records in question are Commonwealth records.
23. Section 58 states that nothing in the Archives Act prevents a person from publishing or giving access to records otherwise than in pursuance of that Act where he or she can properly do so or is required by law to do so.

History and context

24. The relevant history and context of the Archives Act are as follows.
25. Before the enactment of the Archives Act, the Australian Archives (formerly the Commonwealth Archives Office) had been operating for over thirty years under administrative arrangements first laid down during World War II.
26. As explained by the primary judge at [30] and following, the Archives Bill was introduced in the Commonwealth Parliament in 1978. By that time, as referred to at [62] below, the concept of “Commonwealth record” had moved away in successive draft bills from a functional or administrative provenance definition, then from a custodial definition, to a property definition.
27. In that Bill, “Commonwealth record” relevantly meant “a record that is the property of the Commonwealth or of a Commonwealth institution” but by cl 18(1)(a) it was expressly said that Division 2, headed “Dealings with Commonwealth Records”, and Division 3, headed “Access to Commonwealth Records”, did not apply to “records of the Governor-General or of a former Governor-General”. By cl 18(2), a certificate signed by the Official Secretary to the Governor-General certifying that a record was one of the kind referred to in cl 18(1)(a) established conclusively that it was such a record.
28. The Explanatory Memorandum stated that special provision had been made for the records of the Governor-General, amongst others. It was said that those records may be transferred to the custody of the Archives on terms and conditions agreed on between the Archives and those responsible for their custody.
29. Debate on the 1978 Bill was suspended and it was referred to committee for inquiry and report. The Bill was referred to the Standing Committee on Constitutional and Legal Affairs on the question of access since that Committee was also inquiring into the Freedom of Information Bill 1978. There was also a reference to the Standing Committee on Education and the Arts, on the scope of the collection of the Archives.
30. The latter Committee expressed the view at [5.16] that the exclusion of Vice-Regal records was acceptable on the grounds of preserving the traditional independence of that arm of government from the Executive. That Committee sought to allay concerns that the bill extended to personal papers.
31. The Senate Standing Committee on Constitutional and Legal Affairs said this:

33.22 In the case of records of the Governor-General other considerations are involved. The Governor-General is in direct correspondence with the Monarch, and consequently identical holdings will exist in Britain and in Australia of the correspondence passing between them. In Britain, royal documents are not made available until sixty years has elapsed since the date of creation (though special access is sometimes given earlier than this date). This consideration will apply to only a very small number of vice-regal documents. Apart from that, however, the Director-General of Archives was not able to suggest additional justifications for the exclusion of these records, indicating to the Committee that it was a matter of government policy that the records described in Part V should be excluded.

33.23 These explanations may suggest the need for special treatment to be given to a few categories of records, such as judges’ notebooks and correspondence with the Monarch, but they do not to our mind suggest the need for the total exclusion of broad categories of documents from the access provisions of the Bill. The purpose of the Archives Bill is to guarantee that our national history can be both preserved and reconstructed. This guarantee must exist with respect to the operation of the Head of State, of the Legislature and of the Judiciary, much as it exists in relation to the operation of departments. We are not dealing in the Archives Bill with contemporary access to records, where there may exist special reasons for allowing organs of the State like the Legislature and the Judiciary to regulate access. Rather we are dealing with access to records that are thirty years of age. To argue that the Legislature and the courts should regulate access to their own documents is to disguise the fact that at the time access is desired the particular legislature or court that would decide upon access is constituted quite differently to that of the time at which the document was created; it is a fiction to suppose that the institution still has some association with, or understanding of, the records that a trained and professional archivist would not have.

(Emphasis added. Footnotes omitted).

32. That Committee relevantly recommended, at [33.29], that Part V, Division 1 of the Archives Bill should be amended so that no category of records was excluded from the open access provisions of the Bill.
33. In 1981, an amended form of the Archives Bill was introduced into Parliament. The Archives Bill 1981 retained the definition of “Commonwealth record” and also retained the exclusion from Div 2 and Div 3 of records of the Governor-General or of a former Governor-General: cl 18. It did however contain provision in cl 21 for the regulations to provide that all or any of the provisions of Div 2 or Div 3, in such circumstances and subject to such conditions as were prescribed, were to apply to all or any of the records referred to in cls 18, 19 and 20.
34. According to the Explanatory Memorandum and the Supplementary Explanatory Memorandum to the Archives Bill 1981, special provision had been made for the records of the Governor-General. It was said that it would be inappropriate, however, for the more explicit provisions, which gave the Archives, as an arm of the Executive, some degree of regulatory power over the treatment of records, to be made applicable to the records of those arms of the Government which traditionally enjoyed a certain degree of independence and autonomy. The Vice-Regal records were specified as one example. A certificate signed by the Official Secretary to the Governor-General would establish conclusively that a record was a Vice-Regal record.
35. In 1983, the 1981 Bill was amended and reintroduced into Parliament. The Archives Bill 1983 contained a definition of “Commonwealth institution” to mean, amongst other things, the official establishment of the Governor-General. The specific provision for records of the Governor-General, the former cl 18, was not reproduced. Clause 18 no longer included the exclusion from Div 2 and Div 3 of records of the Governor-General or of a former Governor-General.
36. In the Explanatory Memorandum to the Archives Bill 1983 (Circulated by authority of the Honourable L.F. Bowen, Deputy Prime Minister and Minister representing the Attorney-General for and on behalf of the Minister for Home Affairs and Environment the Honourable Barry Cohen M.P.) and the Supplementary Explanatory Memorandum (Circulated by authority of the Attorney-General, Senator the Honourable Gareth Evans for and on behalf of the Minister for Home Affairs and Environment the Honourable Barry Cohen M.P.) it was said:

The provisions of the Bill extend to the records of the official establishment of the Governor-General…

37. The following was said about relevant definitions:

A “Commonwealth institution” which means the official establishment of the Governor-General …. The Archives legislation concerns itself principally with the records of Commonwealth institutions.

A “Commonwealth record” which means a record, other than a Cabinet notebook, exempt material and certain records internal to the operation of the Archives itself (e.g. the Registers and Guide maintained in accordance with Part VIII), which is the property of the Commonwealth or a record deemed under subclause 3(6) to be a Commonwealth record. It is the purpose of the Archives legislation to provide for the preservation and use of Commonwealth records and for related purposes and to establish the Archives as the Commonwealth institution with the duty to do this.

38. In a revised Explanatory Memorandum, the then new cl 6(3) was explained as follows:

The purpose of this clause is to ensure that normal government controls over Commonwealth records, will apply to any Commonwealth records which might appear in collections of personal papers deposited with the Archives.
The amendment does not in any way affect the freedom of a donor to determine conditions of access to personal papers.

39. In the Second Reading Speech the Attorney-General, Senator the Honourable Gareth Evans, said:

The Bill institutes arrangements for the proper management and disposition of the vast body of records generated by Commonwealth agencies. While it breaks some new ground, it is chiefly designed to replace existing ad hoc decisions and conventions which have been relied upon for the last thirty years, with a coherent framework within which comprehensive and accountable arrangements can be made. It provides a statutory basis for the activities of the Australian Archives and confirms that organisation as the agency chiefly responsible for developing and implementing the broad management action which will be necessary.

Continued Wednesday – Medieval combat for ‘the Palace letters’ (part 9)

Previous instalment – Medieval combat for ‘the Palace letters’ (part 7)