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  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 ):
“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.”
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  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”.”
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:
“Commonwealth institution” means:
The questions put forward to Justice Griffiths for analysis were:
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:
“ 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. […]
 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:
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Hocking v Director-General of National Archives of Australia  FCA 340.
Archives Act 1983, available from Timebase's LawOne service.
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