BY MARIA NAWAZ

Introduction

On 29 May, the High Court handed down its decision in Hocking v Director-General of the National Archives of Australia [2020] HCA 19. In an emphatic  6:1 decision, the Court held that correspondence known as the ‘Palace Letters’ – letters between the Governor-General Sir John Kerr and the Queen in the lead up to the dismissal of Prime Minister Gough Whitlam in 1975 – are “Commonwealth records”, not “personal records” as asserted by the National Archives, and thus potentially subject to release under the Archives Act 1983 (Cth) (‘Archives Act’). The High Court ordered that the Director-General of the National Archives reconsider historian Professor Jenny Hocking’s request for access to the Palace Letters.

The decision follows a decade-long attempt by Professor Hocking to access the letters, which could shed light on what happened in the lead up to the Whitlam dismissal, a tumultuous time in Australian constitutional and political history. The letters could uncover what motivated and informed Sir John Kerr’s decision to exercise his reserve powers to dismiss a democratically elected Prime Minister, and what the Queen’s role was, if any, in the dismissal.

In the context of a clampdown on access to information in our democracy, including secret court hearings, obstructionist approaches by the government to freedom of information requests, Australian Federal Police raids on the media and draconian laws targeting public interest reporting, the case represents an important victory for democratic transparency.

Background

The dismissal

The dismissal of the Whitlam Government on 11 November 1975 remains a deeply controversial episode in our political history. Prime Minister Gough Whitlam was elected on 2 December 1972 and then again at a double dissolution election in May 1974. In October 1975, the opposition leader Malcolm Fraser announced that the Senate would not pass the Supply Bills (that would provide for interim appropriations to fund the core activities of the government) until the Whitlam Government called an election. The deferral of the money bills led to a supply crisis, with the Government soon to run out of funds to pay public servants, or to fund services and social security.

This led to a three-week constitutional crisis, with Fraser telling Whitlam he would only pass supply if Whitlam agreed to hold a double dissolution election in May 1976. Whitlam refused to do so and instead sought a half-Senate election in December. Without disclosing his intentions to the Prime Minister, Governor-General Sir John Kerr used his reserve powers under the Constitution and dismissed Whitlam just hours after the half-Senate election was announced. He then appointed Fraser as Prime Minister on the condition that he secure supply and hold a double dissolution election in December that year.

What are the Palace Letters?

The Palace Letters are copies of 211 pieces of correspondence between Sir John Kerr and the Queen’s private secretary, Sir Martin Charteris, exchanged between August 1974 and December 1977. The letters were deposited with the National Archives by Sir John Kerr’s official secretary, Mr David Smith, in 1978 as part of Kerr’s personal collection, with instructions that they not be made available for 60 years (i.e. until 2037), which was when the Queen’s copies of the letters would be made available. In 1991, the access period was brought forward to 2027 on the Queen’s instruction, with the condition that release of the letters to the public be subject to potential veto by the Queen’s private secretary or the Governor-General’s official secretary (‘royal veto’).

Since then, Buckingham Palace has indicated that all letters between the Queen, her private secretary and her Governors-General should not be made available until 5 years after her death, and then still be subject to royal veto. The Queen’s unilateral power to embargo the letters from release raises concerns about what the Palace’s role in the dismissal was, the impact of a foreign institution on access to information held by Australian institutions, and why the actions of Australia’s Head of State are being hidden from scrutiny.

Seeking access to our history

Professor Hocking initially attempted to obtain access to the letters from the National Archives in 2011. Section 31 of the Archives Act provides a “Commonwealth record” within the care of Archives must be made available within the “open access period” – in the case of the Palace Letters, this was 31 years after their creation (see ss 3(1) and (7)). Under the Archives Act there is no requirement of public access to records that are held by the National Archives that are not Commonwealth records.

Professor Hocking’s request to access the records was rejected by the National Archives on the basis that the Palace Letters were “personal records”, not “Commonwealth records”, and thus not subject to access provisions under the Archives Act.

In 2016, Professor Hocking challenged the National Archives’ denial of her request in the Federal Court. The Court dismissed her case in March 2018, finding that the letters were the personal property of Sir John Kerr, rather than official records. Professor Hocking appealed to the Full Court of the Federal Court, which upheld the decision in February 2019. As Lou Dargan has explained, the Court again affirmed that the letters were “personal”. In a 2:1 decision, the Court held that the “unique representative character” of the relationship between the Governor-General and the Queen, and the fact that the Queen could not direct the Governor-General on how to exercise his powers, meant that the Governor-General was corresponding with the Queen in his personal rather than official capacity (at [96]-[97]).  In dissent, Flick J noted that

[t]he documents include correspondence between a former Governor-General of this country, written in his capacity as Governor-General, to the Queen of Australia in her capacity as Queen of Australia, concerning ‘political happenings’ going to the very core of the democratic processes of this country (at [110]).

Professor Hocking then appealed to the High Court, again arguing that the letters were “Commonwealth records”; and that the letters were the property of the Commonwealth because they were created and received by Sir John Kerr in the performance of his office as the Governor-General. The National Archives argued that the letters were “personal” and owned by Sir John Kerr, because his intention at the time of creation was that they were “personal records”, and that there is a longstanding convention that communications between the Governor-General and the Queen are confidential, and do not form part of the official records of government.

The High Court decision

By a 6:1 majority, the High Court held that the lower Court had erred. The High Court found that the Palace Letters are “Commonwealth records”, and ordered a writ of mandamus to compel the Director-General to reconsider Professor Hocking’s request for access to the letters.

In their joint judgment, Kiefel CJ and Bell, Gageler and Keane JJ found that the outcome of the appeal turned on the construction and application of the statutory definition of “Commonwealth record” in s 3(1) of the Archives Act, rather than who might have been the “true owner” of the correspondence at common law, or expectations held at the time of its deposit with the National Archives by reference to constitutional convention ([7]).

“Commonwealth record” is defined under the Archives Act as: 

(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.

The majority found that by holding the letters and then depositing them with the National Archives the Official Secretary to the Governor-General, Mr David Smith’s, actions were sufficient to demonstrate that lawful power to control the physical custody of the correspondence lay with him ([116]). This meant that the Palace Letters were properly characterised at the time of deposit with the Archives as property of the “official establishment of the Governor-General” ([118]). As the letters were property of the “official establishment of the Governor-General”, the letters are “Commonwealth records” ([119]).

The Justices stated:

With respect to the majority in the Full Court, we cannot see how the correspondence could appropriately 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” ([117]).

While declining to decide the issue of ownership, the majority held that even if Sir John Kerr were the true owner of the Palace Letters, the mere existence of ownership rights would have no bearing on the characterisation of the deposited correspondence as a “Commonwealth record” ([120]).

Justice Gordon, while agreeing with the plurality that the Palace Letters were Commonwealth records, wrote separately to address the construction of key provisions of the Archives Act ([165]). Justice Gordon found that even if Sir John did have some property interest in the correspondence, he gave up any property interest he may have held by agreeing that his Official Secretary should retain custody of the documents and then deposit them with Archives ([186]).

Justice Edelman held that the letters were created or received officially, and were kept as institutional documents ([199]). The letters were kept by the “official establishment of the Governor-General” to the exclusion of others, and are the “property of the Commonwealth” ([199]).

In dissent, Nettle J found that the Palace Letters were personal records of Sir John Kerr, not Commonwealth records, and thus not accessible to Professor Hocking under the Archives Act. He found that Sir John Kerr sent, copied and kept the Palace letters in accordance with the established understanding that they would remain confidential ([161]). Sir John Kerr exercised control over his personal communications with the Queen from the moment they were written or received until their deposit with Archives, and they were in his lawful possession at all relevant times ([162]). As such, Nettle J concluded that the correspondence was not the “property” of the Commonwealth or of a Commonwealth institution ([163]).

What happens next with the letters?

Following the High Court’s decision, the Director-General of the National Archives, David Fricker has been compelled to reconsider Professor Hocking’s request for access. On 2 June, the National Archives released a statement noting that the HCA decision has given it the opportunity to examine and publicly release the letters. The National Archives has said while it is a pro-disclosure organisation, it is required to go through a declassification process which may take up to 90 business days. However, under s 42(1)(b) of the Archives Act, internal reconsideration of decisions must usually take place within 30 business days.

There is a chance that the National Archives may refuse the request by claiming the documents are “exempt records” under s 33 of the Archives Act, which prevents the 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”.

Given the significant passage of time since the creation of the records in question, and Professor Hocking’s decade-long attempt to access the records, Professor Hocking has publicly stated that the National Archives should act expeditiously to grant access to the letters.

Conclusion

The High Court decision is significant as it may pave the way for the release of not only the Palace Letters, but also of other correspondence between the Queen and her successive Governors-General. The dismissal was an unprecedented political crisis that raised questions about the strength of our democratic institutions, and the role of the monarchy in our democracy. The letters are a vital piece of Australian history of significant interest to the Australian public that may shed greater light on the actions of the Governor-General and the Palace during the greatest constitutional crisis of our time. Accountability in our political system can only be achieved if the decisions made by the holders of the highest offices in our democracy are subject to transparency and public scrutiny.

The objects of the Archives Act include preserving and making Australian archival resources publicly available. The High Court has ruled that the letters fall within the Archives Act and the National Archives must reconsider Professor Hocking’s request to access these key records. With any luck, this means the Australian public will soon be able to unlock the last missing piece of the puzzle.

Maria Nawaz is the Acting Head of Strategic Litigation at Grata Fund, which provides support to get public interest cases to court. Grata Justice Fund, a partner organisation, supported Professor Hocking’s case in the High Court.

Suggested citation: Maria Nawaz ‘Palace Letters are Commonwealth Records: A Victory for Democratic Transparency’ on AUSPUBLAW (10 June 2020) <https://auspublaw.org/2020/06/palace-letter-are-commonwealth-records-a-victory-for-democratic-transparency>