BY LOU DARGAN

In Hocking v Director-General of the National Archives of Australia, a divided Full Federal Court (Allsop CJ and Robertson J, Flick J dissenting) ruled that the Palace Letters – the correspondence between Sir John Kerr and the Queen between 15 August 1974 and 5 December 1977 – were Kerr’s private or personal documents. This means that the Palace Letters, which cover the (only) time in history that a Commonwealth Governor-General has exercised the reserve power to dismiss a Prime Minister, cannot be accessed publicly, in accordance with Division 3 of the Archives Act 1983 (Cth). Instead, the correspondence will remain hidden until at least 2027, as was the wish of Sir John Kerr and her Majesty. The Full Court decision raises questions about the characterisation of the Governor-General’s powers, the nature of the Governor-General’s relationship with the Monarch and the absence of transparency of constitutional process.

Professor Jenny Hocking made the application to the National Archives to view the Palace Letters in 2011. Gough Whitlam AC has long been a focus of her scholarship. She has published a two-volume biography of Whitlam and “The Dismissal Dossier”, chronicling the events leading to the dismissal of the Prime Minister at 1 pm on 11 November, 1975. Professor Hocking’s work has shed new light on the circumstances surrounding that momentous event. She has documented extensively the previously unknown instrumental involvement of Sir Anthony Mason and has brought the extent of communications between Sir John Kerr and the Hon Malcolm Fraser AC into public consciousness. Some of these matters were detailed in Kerr’s records and contradicted prior public statements by both Kerr and Fraser. Most of Kerr’s records were made available by the National Archives in 2005, when the open access period for Commonwealth records commenced as per section 31 of the Archives Act.

Only one aspect of the Whitlam dismissal remains unstudied and inscrutable: the extent of the knowledge and involvement of Australia’s sovereign, Queen Elizabeth II. While we know plenty about Kerr’s machinations, we cannot know the extent to which the Queen knew of, was involved or acquiesced in, or counselled against the Whitlam government’s demise. We do know that the pair corresponded regularly, including in the months leading up to the constitutional crisis.

Copies of the Palace Letters are held by the Archives. They were given over by Kerr’s official secretary in 1978. However, they were deposited as part of his personal collection, not as official records, and with instructions not to be made available for 60 years, until 2037. That was the same period that the Queen’s copy of the records would be withheld. In 1991, on instructions of the Queen, the release date was brought forward to 2027.

On appeal to the Full Federal Court, Professor Hocking argued that the Palace Letters were in fact Commonwealth records within the meaning of the Act – and should be accessible. On 8 February, Chief Justice Allsop and Justice Robertson upheld the decision of the Director-General of the Archives and ruled that the Palace Letters were Kerr’s private or personal documents. Justice Flick dissented.

A special relationship

Chief Justice Allsop and Justice Robertson placed emphasis on the sui generis nature of the relationship between the Governor-General and the Queen. They referred to the “unique constitutional, governmental and Vice-Regal context” ([87]) in which the correspondence arose. They said the “unique representative character” ([96]) of the relationship coupled with the fact that the Queen cannot direct the Governor-General how to exercise her or his powers, led to their Honours’ conclusion that the Palace Letters were not Commonwealth records. The fact that the Queen could not control how the Governor-General went about his business meant, to the majority, that the Governor-General was corresponding with the Queen in a personal, and not official, capacity ([97]). This was different to the Governor-General’s exercise of executive power conferred by s 61 of the Constitution ([91]).

Justice Flick, in dissent, held that the Palace Letters were Commonwealth records. In fact, his Honour said that it was

difficult to conceive of documents which are more clearly “Commonwealth records” and documents which are not “personal” property ([110]).

These were letters between the Governor-General and the Queen in their official capacities about events “going to the very core of the democratic processes of this country” ([110]). His Honour said that the relationship between the Governor-General and the Queen is one established by the Constitution – and the absence of any power to direct the Governor-General did not make the correspondence “personal” ([114]).

Although there is neither a requirement for a Governor-General to write to the Queen – nor a power for the Queen to require it – describing the communications as “personal” is jarring. As Justice Flick said, there was no evidence of any relationship between the two, except the constitutionally prescribed one. There was also no evidence that they corresponded on any basis other than an official one. It is difficult to imagine a different position. In light of that, it is hard to see why the absence of a power to direct, or the sui generis nature of the relationship, changes the character of the communication. After all, according to the agreed facts, the correspondence was about the “political happenings” of the time – most significant of which was the Governor-General’s contemplated (and actual) exercise of power pursuant to section 64 of the Constitution. Given its significance, it is more logical to view correspondence incidental to that exercise of power as arising out of official, not personal, obligation.

By referring to the capacity to direct the Governor-General, the reasoning of the majority appears to set up a false dichotomy between records of the exercise of power on ministerial advice, which would be caught by the Act, and exercise of the reserve powers, which would not. The consequence of this is that there is no way to compel public scrutiny of the exercise of the most significant and controversial of the Governor-General’s powers – to dismiss a sitting Prime Minister of a democratically elected government. This is the position even though the Governor-General is accountable to no one (not even the Queen it seems). That conclusion appears to accord a degree of deference to the Monarch and her representative that is out of step with the workings of our constitutional democracy, at least today.

What is Commonwealth property?

Another issue with the decision is that it does not illuminate what is Commonwealth property for the purposes of the Act. Under section 3(1) of the Archives Act, a “Commonwealth record” is defined to include documents which are the property of the Commonwealth. Commonwealth property is not defined. Despite this being central to the resolution of the appeal, the majority judgment appears to skirt the issue. Rather, Allsop CJ and Robertson J approached the construction of the Act by reference to what Commonwealth property is not. They rejected that records whose subject-matter related to the performance of the Governor-General’s role and function were, without more, Commonwealth property. Their Honours said that this “functional approach” or “administrative provenance” definition of Commonwealth records had been repudiated in the legislative history to the Archives Act ([86]). They did not, however, detail an alternative test for determining if a document is Commonwealth property. They only said that the Palace Letters, as the “private or personal” records of the Governor-General were not Commonwealth property ([95]).

It is unclear from the judgment whether, generally, “property” in a document is synonymous with ownership, for the purposes of the Archives Act. Nor is it clear if the views of those creating the documents will ordinarily determine ownership. The primary judge, Griffiths J, placed considerable weight on correspondence and conduct by Kerr and other former Governors-General, which indicated that those persons viewed correspondence with the Queen as their own. Successive Governors-General made special arrangements for correspondence with the Queen, which was provided separately to the Archives. Chief Justice Allsop and Justice Robertson said that

What people think about who owns property, or who is entitled to property may or may not be decisive, or relevant, to answering any particular legal problem ([103]).

They did not, however, say it was determinative. Rather, they said only that in this instance the views of those with a claim to property in the documents at the time of their creation (presumably Kerr, the Queen and the Office of the establishment of the Governor-General) reflected the actual position – that the documents were not property of the Commonwealth.

Conclusion

The Full Federal Court decision means that, at least for now, what precisely Kerr told the Queen in the lead up to the 1975 Constitutional Crisis, and how she responded, remains closed for at least another 8 years – and possibly indefinitely if the Queen chooses not to consent to their release.

After he was deposed, Gough Whitlam said, famously,

Well may we say God save the Queen, for nothing will save the Governor General.

In this case at least, the Governor General has saved the Queen – whether from embarrassment, only time will tell.

Lou Dargan is the Head of Strategic Litigation at Grata Fund, a charity which funds public interest litigation. Grata Fund supported Professor Hocking’s case in the Full Federal Court.

Suggested Citation: Lou Dargan, ‘It’s Personal – the ‘Palace Letters’ to Remain Hidden and So Too Will Scrutiny of Constitutional Process’ on AUSPUBLAW (27 February 2019) <https://auspublaw.org/2019/02/its-personal-the-palace-letters-to-remain-hidden>