Snapshot
- Australians could be one step closer to finally uncovering the truth behind the 1975 dismissal of the Whitlam Government.
- In Hocking v Director General of the National Archives of Australia [2020] HCA 1, the High Court found that the ‘personal letters’ between the then Governor-General & The Queen’s private secretary were in fact ‘Commonwealth records’.
- The result compels the Director-General of the National Archives to reconsider Professor Hocking’s request for access to the letters. A decision is expected to be made in late July.
Introduction
Following an epic legal battle, Professor Hocking, historian and Whitlam biographer, is now closer to achieving her quest to access records stored at the National Archives concerning one of the most tumultuous periods of Australian political and constitutional history: the dismissal of the Whitlam Government in 1975. By a 6:1 decision in Hocking v Director General of the National Archives of Australia [2020] HCA 19 the High Court of Australia compelled the Director-General of the National Archives to reconsider Professor Hocking’s request for access to the Palace Letters: being a series of letters between Sir John Kerr, then the Governor-General, and her Majesty Queen Elizabeth II, in the custody of the National Archives.
The Dismissal
On 11 November 1975, Sir John Kerr used his reserve powers as Governor-General under the Constitution to dismiss the Whitlam Government and appoint Malcolm Fraser as caretaker Prime Minister. The event was a controversial episode in Australia’s political history. Yet it remains shrouded in secrecy and intrigue almost a half century later, a factor that injects considerable interest in the Palace Letters being accessed. Indeed, Professor Hocking’s legal action was supported by a crowd-funding campaign with pro bono assistance.
The Palace Letters
The Palace Letters comprise over 200 letters exchanged between Sir John and the Queen’s private secretary, Sir Martin Charteris. The Palace Letters are the ‘personal and confidential’ correspondence between Sir John and the Queen. They straddle the period of the Dismissal. They are said to include Sir John’s briefings to Her Majesty on the political crisis leading up to the Dismissal as well as Sir John’s explanation to Her Majesty for exercising that exceptional power; which has not since been used to force a government from office.
The contents of the Palace Letters may carry significant and unique historical intelligence that sheds light on the actions of the Governor-General and the Palace during this controversial period.
The trial judge excluded the Recordings, Search Warrant Evidence and Admissions. He assessed the gravity of the contravention as very high, and found that the Court should be reluctant to give approval to the deliberate illegal conduct of bodies that are not subject to any form of legislative or executive oversight.
In the vault
In 1978, upon Sir John’s early retirement from office, a sealed package containing the Palace Letters (copies sent and originals received) was deposited with the National Archives by the Official Secretary of the Governor-General. They were stated as being part of Sir John’s ‘personal’ collection. The cover letter expressed Her Majesty’s wishes and Sir John’s instructions that the contents remain closed for 60 years from Sir John’s retirement (December 2037). This was later revised on Her Majesty’s instruction to 50 years (December 2027).
The Royal hunt
In 2016, Professor Hocking requested access to the Palace Letters within the custody of the National Archives under the terms of the Archives Act 1983 (Cth) (‘the Act’). The National Archives has responsibility for the ‘care and management’ of the archival records of the Commonwealth. Professor Hocking’s request was premised on the contention that the Palace Letters were ‘Commonwealth records’ as that term is defined in the Act. By force of s 31 of the Act, and subject to exceptions which were not in issue, Commonwealth records must be made available for public access once the record is within the ‘open access period’, being 31 years after the date of its creation for a Commonwealth record created before 1980 (s 3(7)).
The Director-General rejected Professor Hocking’s request on the basis that the Palace Letters were ‘personal records’ and not ‘Commonwealth records’ and were accordingly not subject to the open access provisions of the Act.
On judicial review by the Federal Court and on appeal by the majority of the Full Court, the Palace Letters remained characterised as the personal property of Sir John rather than official records such that access to them remained off limits. The majority in the Full Court held, ‘to found a conclusion as to property on such a functional approach would be to introduce an administrative provenance definition’ (at [86]).
The key to the case of the Palace Letters
The key issue in the High Court of Australia was whether the Palace Letters are in fact ‘property of the Commonwealth’ and are therefore ‘Commonwealth records’ under the Act. The decision sees an unfurling of a long red carpet of very elaborate statutory definitions embedded within the Act, in particular, the critical expression, ‘Commonwealth records’. A laborious statutory interpretation task was required because the Act does not expressly address the question of whether records of the Governor-General fall within its ambit.
The Archives Bill was introduced in the Commonwealth Parliament in June 1978, incidentally, just months prior to Sir John’s retirement. At [55], the plurality observed that the parliamentary process which culminated in the enactment of the Act was ‘unusually long’. The Explanatory Memorandum stated that special provision had been made for the records of the Governor-General, amongst others. The Supplementary Explanatory Memorandum to the Archives Bill 1981 also noted that special provision had been made for the records of the Governor-General.
In 1983, there was a change of Government, being the Hawke era. 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 plurality noted that the 1983 version, ‘took quite a different approach… it incorporated two significant departures from the earlier versions’ (at [66]). One was the deletion of the proposed exclusion of records of the Governor-General or of a former Governor-General. The other was the insertion of the reference to ‘the official establishment of the Governor-General’ into the definition of ‘Commonwealth institution’. In his Second Reading Speech, the Attorney-General explained the altered policy intent to be, ‘[t]he provisions of the legislation will apply to the records of the official establishment of the Governor-General, but not to his private or personal records’.
Section 3(1)(a) of the Archives Act defines a ‘Commonwealth record’ as a record that is the ‘property of the Commonwealth’ or of a ‘Commonwealth institution’. It does not include ‘exempt material’ (which has its own detailed definition) while the term ‘property’ is not defined. A ‘Commonwealth institution’ includes ‘the official establishment of the Governor-General’ and ‘an authority of the Commonwealth’.
The plurality held that despite being expressed as the ‘personal letters’ of the Governor-General, the Palace Letters related to the exercise and function of the Governor-General’s power and had been created, received and held as institutional documents by the ‘official establishment of the Governor-General’ before being transferred to the National Archives by the Official Secretary to the Governor-General in his official capacity. These actions of the Official Secretary were sufficient to demonstrate that lawful power to control the physical custody of the letters lay with him. As such, at the time the Palace Letters were deposited with the National Archives, they were properly characterised as property of the ‘official establishment of the Governor General’ (at [118]) and were accordingly ‘Commonwealth records’ (at [119]). The level of official control over the Palace Letters caused them to be characterised as ‘Commonwealth records’, even if the Governor-General still held ownership rights over them (which the plurality said it did not need to decide).
The plurality stated, ‘we cannot see how the correspondence could… be described… however “loosely” as private or personal records of the Governor General even allowing for the ambiguity of the description of “private or personal”…’ (at [117]).
Justice Gordon, who agreed with the plurality, gave separate reasons addressing the statutory construction of key provisions of the Act. Justice Gordon found that even if Sir John had a proprietary interest in the Palace Letters, he relinquished any such potential property interest by agreeing that his Official Secretary should retain custody of the documents and then deposit them with Archives (at [186]).
Justice Edelman, also giving separate reasons, held that the Palace Letters were created or received officially and were kept as institutional documents (at [199]). The letters were kept by the ‘official establishment of the Governor General’ and were the ‘property of the Commonwealth’ and no convention existed that requires them to be treated otherwise (at [199]).
In dissent, Justice Nettle held that the Palace Letters were personal records and not Commonwealth records (at [162]).
The next chapter
The result compels the Director-General of the National Archives to reconsider Professor Hocking’s request for access. The decision is due to be made in late July. There remains a possibility that her request is refused on the basis that the Palace Records are said to be ‘exempt’. Section 33 of the Act exempts disclosure of information that ‘could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth’ and information that was ‘communicated in confidence by, or on behalf of, a foreign government or an authority of a foreign government’.
Implications; Dear Betty
Regardless of the facts of this particular situation, the decision also impacts more generally on the status of correspondence by other Governors-General. All correspondence between Governors-General and the Queen is now liable to public perusal once the ‘open access period’ commences and subject to any exemption. It is hoped that the Palace Letters do become available to Professor Hocking whose lengthy legal battle demonstrates the maintenance of ‘rage and enthusiasm’ for access to primary sources relating to this significant period of Australia’s political history.
Publication
As published in LSJ