In Hocking v Director-General of the National Archives of Australia  HCA 19 (29 May 2020) the High Court of Australia has, in a majority decision, allowed an appeal from a judgment of the Full Court of the Federal Court of Australia [see Hocking v Director-General of the National Archives of Australia  FCAFC 12 (8 February 2019)]. The key issue on appeal was whether correspondence between the former Governor-General of Australia, Sir John Kerr, and Her Majesty Queen Elizabeth II (known as the "Palace Letters") now in the custody of the National Archives of Australia ("the Archives") were constituted "Commonwealth records" for the purposes of the Archives Act 1983 (Cth) (the Archives Act) because the correspondence was ".the property of the Commonwealth or of a Commonwealth institution".
As mentioned, this case has become know as the "Palace Letters case" and it raises a number of questions about "when a person who holds high office does something in an official or personal capacity". The documents (the Records) at issue in the case include the originals (and copies) of correspondence between the Governor-General, at the time of the dismissal of the Whitlam Government, Sir John Kerr (or his Official Secretary) and Queen Elizabeth II (or her Private Secretary) covering the period from 15 August 1974 to 5 December 1977.
The Records were lodged, by the then Official Secretary to the Governor-General, with the Archives on 26 August 1978 with the instruction that they were to remain closed until 2037 (a date later changed to 2027). Further, the Records could only be released following consultation between the reigning Sovereign’s Private Secretary and the incumbent Governor-General’s Official Secretary.
The Appellant, Professor Jennifer Hocking, had requested access to the Records which was refused by the Archives on 10 May 2016 with a refusal letter stating that the Records were not Commonwealth records and were not therefore subject to the access provisions of the Archives Act.
The relevant provision is section 3(1)(a) of the Archives Act which defines a “Commonwealth record” as meaning a record that is the "property of the Commonwealth" or of a "Commonwealth institution". It does not however, include exempt material and the term “property” is not defined. A “Commonwealth institution” does however include “the official establishment of the Governor-General” and “an authority of the Commonwealth”.
The key issue in the appeal was whether certain Records held by the Archives are “property of the Commonwealth” and are therefore “Commonwealth records” for the purposes of the Archives Act.
At trial in Hocking v Director-General of National Archives of Australia  FCA 340 (16 March 2018), Justice Griffiths dismissed an application seeking a declaration that the Records were Commonwealth records within the meaning of the Archives Act by the Appellant.
In the Full Federal Court ( FCAFC 12 (8 February 2019)), Chief Justice Allsop and Justice Robertson with Justice Flick dissenting, dismissed an appeal by the Appellant from the decision of Justice Griffiths. The majority held that the relationship between the Queen and the Governor-General was "essentially a personal one" going on to hold that the Records were the "personal property" of Sir John Kerr and not that of the Commonwealth.
Justice Flick, who dissented, disagreed strongly with the majority and concluded that the Records, taken as a whole, were in fact "Commonwealth records" reaching that conclusion by referencing the:
Justice Flick held that to regard those documents as Sir John Kerr’s personal property was a conclusion which could not be supported.
Special Leave to appeal was applied for on 16 August 2019. The grounds of appeal were:
On 29 August 2019, a notice of Constitutional matter was filed. On 14 October 2019 the Attorney-General of the Commonwealth filed a Notice of Intervention in this matter. The appeal was heard 5 February 2020 [see Hocking v Director-General of the National Archives of Australia  HCATrans 4 (5 February 2020)].
In its decision the High Court majority of six held that the correspondence was constituted by Commonwealth records because it was the property of the Commonwealth or of a Commonwealth institution, namely "the official establishment of the Governor-General".
The five Justices in the majority held that in the statutory context of the Archives Act the term "property" connoted the existence of a relationship in which the Commonwealth or a Commonwealth institution had a legally endorsed concentration of power to control the custody of a record.
Their Honours held that the arrangement by which the correspondence was kept by Official Secretary to the Governor-General and then deposited with the 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, such that the correspondence was the property of the official establishment.
The other Justice in the majority held that the correspondence was, by common law concepts of property employed in the Archives Act, the "property of the Commonwealth" because it had been created or received officially and kept by the official establishment of the Governor-General.
Interviewed by the ABC the appellant Professor Jennifer Hocking, applauded the High Courts decision saying:
It should be noted that the so called Palace Letters were due for release 12 years ago, but because they had been marked as "private" correspondence rather than "Commonwealth records", they were not covered by the rules binding Commonwealth documents.
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Hocking v Director-General of the National Archives of Australia  HCA 19 (29 May 2020) , Short Particulars and Judgment Summaries.
Hocking v Director-General of the National Archives of Australia  HCATrans 4 (5 February 2020)
Hocking v Director-General of the National Archives of Australia  FCAFC 12 (8 February 2019)
Hocking v Director-General of National Archives of Australia  FCA 340 (16 March 2018)
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