Federal Court Rules Against Disclosure of Whitlam Dismissal Letters

Tuesday 20 March 2018 @ 10.20 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

On Friday, 16 March 2018, the Federal Court of Australia released Justice Griffiths' judgment in the case: Hocking v Director-General of National Archives of Australia [2018] FCA 340. In his judgment, Justice Griffiths dismissed an application to release letters, known as the “Palace letters”, between the Queen and Sir John Kerr from 1975, when Sir Kerr was Governor-General of Australia. These letters are historically relevant as they concern one of the greatest constitutional crises in Australian history, the dismissal of Gough Whitlam as Prime Minister of Australia.

In his judgment, Justice Griffiths maintained that (at paragraph [1]):

“These proceedings raise important issues concerning access under the Archives Act 1983 (Cth) (the Act) to a bundle of correspondence between the then Governor-General of Australia, Sir John Kerr, and The Queen or The Queen’s Private Secretary. The relevant documents, which are known as “Series AA1984/609” (AA1984/609), were placed in the custody of Australian Archives on 26 August 1978 by Mr David Smith, the then Official Secretary to the Governor-General. The records relate to one of the most controversial and tumultuous events in the modern history of the nation, namely Sir John Kerr’s dismissal of Prime Minister Gough Whitlam.”

Background

Monash University historian Jenny Hocking applied to the Federal Court after being refused access to the aforementioned records being held by the National Archives of Australia. The background to this case is outlined in paragraph [2] of the judgment:

“The applicant sought access to the documents under the Act. Access was refused by the National Archives of Australia (Archives) on 10 May 2016 on the stated basis that the documents were not “Commonwealth records”. Rather, they were said to be Sir John’s personal property which the Archives had custody of in accordance with the transitional and other relevant provisions of the Act. Archives said that it did “not have power or authority to give access…other than in accordance with the instrument of deposit and arrangements specified by the offices of The Queen and the Governor-General”.”

Questions to be Decided

The question which was central to the judgment was whether or not the records were “Commonwealth records” as defined in section 3 of the Archives Act 1983:

"Commonwealth record" means:

  1. a record that is the property of the Commonwealth or of a Commonwealth institution; or
  2. 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;

Commonwealth institution” means:

  1. the official establishment of the Governor-General;
  2. the Executive Council;
  3. the Senate;
  4. the House of Representatives;
  5. a Department;
  6. a Federal court or a court of a Territory other than the Northern Territory or Norfolk Island;
  7. an authority of the Commonwealth; or
  8. the Administration of an external Territory

The questions put forward to Justice Griffiths for analysis were:

  1. Are records of the Governor-General which are “Commonwealth records” within the meaning of the Act limited to administrative records of the official establishment of the Governor-General?
  2. Is one or more of the records constituting AA1984/609 a “Commonwealth record”?
  3. In the alternative to question (b), did Archives exceed its jurisdiction by reason that AA1984/609 did not contain “Commonwealth records” because it was not the property of the official establishment of the Governor-General?

Decision

In his judgment, Justice Griffiths found that the letters between the Queen and Sir John Kerr from November 1975 were correctly classified by the National Archives as “personal records”. The implication of this judgment is that they cannot be classified as “Commonwealth records” under the Archives Act 1983 and are therefore unable to be accessed early. The earliest date that they may be released is 2027, stipulated by Sir Kerr’s estate, with the final power of veto over the release being held by the Queen.

In deciding that the records were not “Commonwealth records” under the Act, Justice Griffiths stated:

“[101] Whether one or more of the records comprising AA1984/609 is a “Commonwealth record” within the meaning of the Act turns on whether any such record is the “property” of either the Commonwealth or “the official establishment of the Governor-General”. As noted above, the records comprising AA1984/609 were not put before the Court. Accordingly, the question must be answered on the assumption that all the records in that bundle are correspondence in the form of letters or telegrams between Sir John Kerr acting in his capacity as Governor-General and The Queen (including through Her Majesty’s Private Secretary), while noting that it is also the agreed position of the parties that some of the correspondence had attachments, such as newspaper clippings. […]

[103] Although it is unnecessary for the purposes of this proceeding to attempt an exhaustive meaning of the word “property”, I accept Archives’ submission that the reference to “property of” in the definition of “Commonwealth record” picks up the concept of ownership as ordinarily understood under the general law.”

As such, Justice Griffiths held that, at all relevant times, the documents were the personal property of Sir John Kerr. Justice Griffiths gives a number of reasons for this determination including:

  • Sir John Kerr considered the records to be his own personal property (at [108])
  • “Sir John chose to consult The Queen in order to ascertain Her wishes as to his disposition of the Palace correspondence kept by him, and in which The Queen had a reciprocal interest because Her Majesty was a party to that correspondence” (at [109]).
  • “The Queen also appears to have considered that the subject records were owned by Sir John and were amenable to disposition in accordance with his instructions, including by way of testamentary disposition” (at [110]).
  • “After consultation with The Queen (through her Private Secretary), it was Sir John’s decision to place the correspondence to and from the Palace in the custody of Australian Archives (at [111]).

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Hocking v Director-General of National Archives of Australia [2018] FCA 340.

Archives Act 1983, available from Timebase's LawOne service.

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