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25 Jun 2020

Administrative law updater: Of knights and dames: Letters from Australian Prime Ministers to the Queen

By Cain Sibley, Neil Cuthbert, and Oliver Morris

The Administrative Appeals Tribunal says that disclosure of communications with the Sovereign would damage Australia's international relations.

The High Court's recent decision in Hocking v Director-General of the National Archives of Australia [2020] HCA 19 was not the first decision to consider correspondence between Australian public officials and the Queen. In late 2016, the journalist William Summers submitted a Freedom of Information request to the Department of Prime Minister and Cabinet for all letters from Prime Ministers of Australia to the Queen since 1 January 2013.

The Administrative Appeals Tribunal was asked to determine whether the letters were exempt from release under the Freedom of Information Act 1982 (Cth) (FOI Act). Sitting as a Deputy President of the Tribunal, Justice Perry decided in December 2019 that the letters were exempt because their disclosure would, or could reasonably be expected to, damage Australia's international relations: Re Secretary, Department of Prime Minister and Cabinet and Summers [2019] AATA 5537.

Although Summers would not have been affected by the High Court's decision if it had been handed down after Hocking, it is a useful example of how arguments over exemption claims can play out in analogous circumstances. There could be a similar dispute if the National Archives makes exemption claims over the documents sought by Professor Hocking.

What is the problem decision-makers face?

Section 33(a)(iii) of the FOI Act provides that a document is an "exempt document" if its disclosure 'would, or could reasonably be expected to, cause damage to ... the international relations of the Commonwealth'.

In Summers, that test required careful consideration of the constitutional relationship between the Queen and her Australian Government; the relationship between Australia and other Commonwealth realms through their common monarch; and construction of the phrase "could reasonably be expected to cause damage".

The case raises the question, would letters exchanged between Ministers of the Australian Government and the Queen (regardless of their content) always be exempted from FOI requests by reason of section 33(a)(iii)?

How did Summers affect this?

Drawing upon the evidence of an experienced "career diplomat" (Andrew Todd) as well as the then Official Secretary to the Governor-General (Mark Fraser LVO OAM), Justice Perry explained that, by convention, correspondence between any one of Her Majesty's governments and the Royal Household (including Her Majesty's Private Secretary) are conventionally treated as absolutely confidential. She considered that the release of documentation under the FOI Act would be considered by the Queen and the Royal Household as a betrayal of the trust reposed in the Australian Government to abide by that convention.

Justice Perry also considered that a breach of convention as to the strict confidentiality of correspondence between the Prime Minister of Australia and the Queen could reasonably be expected to damage that relationship. She considered that that relationship was properly to be characterised as international due to Her Majesty's position as the Sovereign of other Commonwealth realms. In any event, Justice Perry also considered that such a breach could also reasonably be expected to damage Australia's relationship with the other Commonwealth realms themselves.

The facts and decision in Summers

Mr Summers is a prominent journalist and has uncovered stories of constitutional significance in the past. Mr Summers' FOI request in this instance was for "all letters sent from the Prime Minister(s) of Australia to Queen Elizabeth II (or her representatives) since 1 January 2013". 

The Department retrieved 14 letters which matched Mr Summers' request, but declined to produce them all, deciding that all were exempt by reason of section 33(a)(iii) of the FOI Act. The Department also decided that 13 of the 14 letters were also exempted under section 47C of the FOI Act.

The Australian Information Commissioner (IC) disagreed with the Department, finding that none of the documents were exempt. The Department sought merits review of the IC's decision by the Tribunal.

Four key issues were raised for the Tribunal to consider:

  • what standard of persuasion is required by the terms "could reasonably be expected to"?
  • is the relationship between the Prime Minister of Australia and the Queen "international"?
  • would that relationship be "damaged" by reason of the release of the letters? and
  • how would disclosure of the letters affect the relationship between Australia and other Commonwealth realms?

Justice Perry explained that the words "could reasonably be expected to" should not be subject to any unnecessary "gloss". She referred to the observation made by Chief Justice Bowen and Justice Beaumont in Attorney-General's Department v Cockcroft (1986) 10 FCR 180 that those words require a judgement about whether "those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act." Accordingly, the words "could reasonably be expected to" in the FOI Act must be interpreted by reference to the commonly understood meaning of those words.

Mr Summers argued that the relationship between the Prime Minister of Australia and the Queen could not be characterised as "international" because the Queen acted as the Queen of Australia in her dealings with the Prime Minister of Australia, meaning that Her Majesty formed "a part of the domestic or internal system" of the Commonwealth of Australia. Justice Perry rejected this argument for two reasons:

  • not all of the letters were actually addressed to the Queen in her capacity as Queen of Australia; some were addressed to her Majesty in her capacity as Head of the Commonwealth;
  • given the identity of personage between the Queen of Australia and the Queen of the United Kingdom (and the Queen of other Commonwealth realms such as Canada, New Zealand, Jamaica, and Papua New Guinea), it is "artificial" to draw a line between the Queen of Australia and the Queen's constitutional role in respect of other Commonwealth realms.

Put another way, to damage the relationship between Australia and the Queen of Australia is also to damage the relationship between Australia and the Queen of the United Kingdom, Jamaica, Canada, and so on. Justice Perry determined that this would constitute damage to Australia's international relations.

The Tribunal accepted the evidence of Mr Fraser and Mr Todd as to the longstanding convention of strict confidentiality that exists in relation to correspondence between Ministers of Her Majesty's Government and the Sovereign. It was accepted that the release of those documents in breach of that convention would be considered a "betrayal" of trust. Accordingly, the Tribunal considered that relations with the Queen would be damaged by the letters being released under the FOI Act.

Finally, the Tribunal also accepted the evidence of Mr Fraser and Mr Todd that other Commonwealth realms may take a dim view of the release of letters from Australian Prime Ministers to the Queen. Notably, in his evidence, Mr Todd hypothesised as to his reaction should another Commonwealth realm release documents that were, by convention, supposed to be confidential. He explained that he may reassess what information Australia could provide to that other country, noting that he could not be sure "what other forms of correspondence could be revealed".

As a result of the Tribunal's findings in respect of the above four matters, Justice Perry ordered that the IC's decision be set aside and that a decision be substituted that that all of the letters are exempt pursuant to section 33(a)(iii). It is notable that the Tribunal also accepted the Department's contention that 13 of the 14 documents would have been exempted under section 47C as well.

After Summers, here's what you need to remember

The Tribunal's reasoning could be seen as creating something close to a "class" exemption for correspondence between Ministers of the Australian Government and the Queen and Royal Household, meaning that they would always be exempt irrespective of their actual content. However, Justice Perry stopped short of prescribing an absolute rule on this question. Such a rule, if it did exist, would parallel the absolute exemption that exists in UK legislation in relation to correspondence between Ministers of Her Majesty's Government (UK).

Moreover, this decision emphasises the duality that exists within the personage of Her Majesty as the Queen of Australia and the Queen of other Commonwealth realms (as well as the Head of the Commonwealth itself). Her Majesty is properly to be regarded as a part of the constitutional structure of Australia but also as a part of the constitutional structure of other countries.

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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.