On 29 May 2020, the High Court delivered a landmark decision that letters exchanged between the former Governor-General Sir John Kerr and the Queen are Commonwealth records and are eligible for access under the Archives Act 1983: Hocking v Director-General of the National Archives of Australia  HCA 19.
The Archives Act defines a Commonwealth record as a record that is the "property" of either "the Commonwealth" or of a "Commonwealth institution". In Hocking, the High Court by a 6-1 majority (Chief Justice Kiefel, and Justices Bell, Gageler and Keane, with Justice Gordon agreeing, and Justice Edelman also allowing the appeal for slightly different reasons) held that the letters were the property of a Commonwealth institution, namely the official establishment of the Governor-General. Justice Nettle dissented.
The High Court issued a writ of mandamus to compel the Director-General of the National Archives of Australia to reconsider Professor Jenny Hocking's request for access to the letters. The Court also ordered the National Archives to pay Professor Hocking's costs.
Although the litigation had been conducted on the basis of a dispute over who was the "true owner" of the correspondence at common law, five judges in the majority instead resolved the appeal on the basis that "property" in the context of the Archives Act is determined by reference to a lawful power to control the physical custody of the record. The question of whether Sir John was the "true owner" of the letters at common law was not to the point.
The facts and decision in Hocking
The Palace Letters include letters exchanged between Sir John and the Queen or the Queen's Private Secretary between 15 August 1974 and 5 December 1977, covering the period in which Sir John dismissed Gough Whitlam as the Prime Minister of Australia on 11 November 1975.
The letters were deposited with the National Archives by Mr David Smith "in his capacity as Official Secretary to the Governor-General" under a letter of deposit dated 26 August 1978. The letter of deposit stated that:
"This package contains the personal and confidential correspondence between [Sir John and the Queen] … In accordance with The Queen's wishes and Sir John Kerr's instructions, these papers are to remain closed until 60 years after the end of his appointment as Governor-General, ie until after 8 December 2037."
Professor Hocking requested the Palace Letters from the National Archives. The National Archives refused her request on the basis that the letters were not Commonwealth records and accordingly not subject to public access.
In October last year, Chief Justice Allsop and Justice Robertson in the Full Federal Court agreed with the National Archives. They concluded that the letters were "private or personal records of the Governor-General". Justice Flick dissented, and reasoned that the National Archives was attempting to establish an artificial distinction between “property of the Commonwealth” and “personal property”, which could not be sustained.
The High Court allowed Professor Hocking's appeal, but in doing so re-framed the question that was before the Full Court. The question was not, as argued by both parties before the Full Court, whether legal title to the letters vested in the Commonwealth as a body politic or in Sir John at the time of their creation or receipt by him.
Rather, Chief Justice Kiefel, Justices Bell, Gageler and Keane, with Justice Gordon agreeing, held that, in the context of the Archives Act, the term "property" implies a relationship in which the Commonwealth or a Commonwealth institution has lawful power to control the custody of the record. The arrangement by which the correspondence was kept and then deposited with the National Archives demonstrated that lawful power to control the custody of the correspondence lay with the Official Secretary, an office within the official establishment of the Governor-General. They reasoned:
"The nature and significance of the correspondence was such that it was only to be expected that the correspondence would be kept within the official establishment of the Governor-General … It cannot be supposed, for example, that Sir John Kerr could have taken the correspondence from the custody of the official establishment and destroyed it or sold it, and the sequence of events which resulted in its deposit with the Australian Archives demonstrates that such a possibility was never contemplated."
The correspondence was the property of the official establishment of the Governor-General, irrespective of whether the Commonwealth as a body politic, or Sir John, was the true owner of the letters at common law. Their judgment discloses a significant and potentially novel interpretation of what constitutes "property", at least for the purposes of the Archives Act, as it re-casts the foundation of property from ownership to power.
Justice Edelman agreed with the orders of the other majority judges, but reasoned instead that the term "property" in the Archives Act should be given its ordinary common law meaning in relation to chattels, involving a right to exclude others from the chattel. Justice Edelman rejected the notion of giving what he termed a "potentially unique" meaning to the concept of property, and observed:
"It would be very surprising if Parliament had intended to use the concept of 'property' in the Archives Act to describe a legal relationship with a chattel according to some unique, undefined meaning, unknowable until it is revealed by creative judicial exegesis."
In Justice Edelman's view, the letters were "property of the Commonwealth" because they were kept as institutional documents by the official establishment of the Governor-General to the exclusion of others.
Following the High Court's decision, the Director-General of the National Archives of Australia must now re-consider Professor Hocking's request for access to the correspondence.
In our previous article, we said that the decision could have implications for the circumstances in which a person who holds high office does something in an official or personal capacity. Our view is that the majority's reasoning confines those implications to relatively rare circumstances where the lawful power to control the custody of the documents is in question.
What happens now?
The Palace Letters are Commonwealth records and now eligible for public access under the Archives Act, 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. If the National Archives does not release the letters in full, there may be a further dispute between it and Professor Hocking over any exemption claims.
There are examples of correspondence with the Sovereign being exempt under the Freedom of Information Act 1982 (Cth). In a decision from December 2019, Justice Perry, sitting as a Deputy President of the Administrative Appeals Tribunal, determined that letters exchanged between Australian Prime Ministers and the Queen since 1 January 2013 were wholly exempt under the Act because their disclosure would, or could reasonably be expected to, damage Australia's international relations.