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03 Oct 2019

Administrative law updater: The Palace Letters and you

By John Carroll, Caroline Bush, Neil Cuthbert and Rachael Grivas

The Palace Letters case will have a significant bearing on the question of when a person who holds high office does something in an official or personal capacity.

What is the problem decision-makers face?

The Archives Act 1983 defines a Commonwealth record as a record that is the property of either "the Commonwealth" or of a "Commonwealth institution".

If a document is a Commonwealth record, the Archives Act creates legal obligations on government decision-makers to store, manage and provide access to the document in a particular way.

The problem is that determining whether a document is a Commonwealth record can be a difficult question of statutory construction.

How did Hocking v Director-General of the National Archives of Australia [2019] FCAFC 12 affect this?

In Hocking, the Full Federal Court considered whether correspondence between the then Governor-General and The Queen or The Queen's Private Secretary (the Palace Letters), were Commonwealth records.

A 2-1 majority of the Full Court ruled that the Palace Letters are the property of the person then holding the office of Governor-General – Sir John Kerr – and not the property of the Commonwealth.

In doing so, the Court found the communications between Sir John and The Queen to be personal in nature, having regard to the functions of the Governor-General, the relationship between the Governor-General and The Queen, and the proper construction of the Archives Act.

This has the effect of denying public access to the Palace Letters until at least 2027.

The facts and decision in Hocking

The Palace Letters include letters exchanged between Sir John and The Queen or The Queen's Private Secretary from 15 August 1974 and 5 December 1977, covering:

  • the official duties and responsibilities of the Governor-General;
  • personal and confidential correspondence;
  • the events of the day in Australia; and
  • contemporary political happenings in Australia.

The Palace Letters also cover the period during which Sir John dismissed the then Prime Minister of Australia, Gough Whitlam, on 11 November 1975.

The Official Secretary to the Governor-General lodged the Palace Letters with the National Archives of Australia, with instructions that the letters were to "remain closed until after 8 December 2037" (later revised to after 8 December 2027). If the letters were Commonwealth records, this direction would have no force as they would be subject to the open access period under the Archives Act – generally 30 years after the records were created.

Professor Jenny Hocking, Gough Whitlam's biographer, requested the Palace Letters from the National Archives under the Archives Act. On 10 May 2016, the National Archives refused Professor Hocking's request on the grounds that the letters were not Commonwealth records and accordingly not subject to the access provisions of the Archives Act.

On 16 March 2018, the Federal Court dismissed Professor Hocking's application for judicial review, finding the correspondence to be the personal property of Sir John Kerr.

On 8 February 2019, Professor Hocking's appeal to the Full Federal Court was dismissed. In doing so, the majority remarked that:

"We reject the approach that everything that a person who holds an office does is done by that person officially".

In a strongly worded dissent, Justice Flick considered the Palace Letters to be Commonwealth records because of:

  • the positions occupied by The Queen and the Governor-General;
  • the Governor-General's functions;
  • the nature and subject matter of the correspondence; and
  • the importance of that subject matter to Australia's Constitutional system of government.

After Hocking, here's what you need to remember

This case raises fundamental questions of statutory construction and is likely to have an enduring effect on the interpretation of the Archives Act.

If Justice Flick's view is upheld, the Palace Letters will be eligible for public access under the Archives Act. Access would be subject to any applicable exemptions, such as damage to Australia's international relations, or breach of a confidence shared by a foreign government with the Commonwealth. Nevertheless such a ruling could increase public scrutiny of supposedly personal collections of papers.

If the majority view prevails, public officials will have greater comfort that they are able to influence the conditions and timing of access to their personal papers after depositing them with the National Archives. The decision is likely to have broader implications for the circumstances in which a person who holds high office does something in an "official capacity" as opposed to in a personal capacity.

On 16 August 2019, the High Court granted Professor Hocking special leave to appeal from the Full Federal Court's decision. The High Court appeal is likely to be heard in late 2019 or early 2020.

You can expect an update from us once the High Court delivers its judgment.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.