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

SUMMARY

In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, particularly in the case of lengthy reasons for judgment, the Court has prepared a summary of the main conclusions of the judgment. The summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions or reasoning of the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website. This summary is also available there.

These proceedings involve judicial review of a decision by the National Archives of Australia (Archives) to refuse the applicant (Professor Hocking) access under the Archives Act 1983 (Cth) (the Act) to certain records labelled as AA1984/609. The records comprise letters, telegrams and attachments exchanged between the Governor-General of Australia, Sir John Kerr, and Her Majesty The Queen (or Her Private Secretary) during the period 15 August 1974 to 5 December 1977.

On Sir John’s instructions, the records were deposited with the then Australian Archives on 26 August 1978 by Mr David Smith, in his capacity as Official Secretary to the Governor-General. The instrument of deposit stated that the records were to remain closed until after 8 December 2037 and, thereafter, were not to be released without prior consultation with the Sovereign’s Private Secretary of the day and the Governor-General’s Official Secretary of the day.

Archives refused Professor Hocking’s request for access to the records under the Act on the basis that the records were not “Commonwealth records” as defined in the Act because they were neither “the property of the Commonwealth” or “the property of the official establishment of the Governor-General”. Rather, Archives concluded that the records were Sir John’s personal property and had been lodged with Archives under a special arrangement under s 6(2) of the Act. Accordingly, the records were not subject to the ordinary open access period which applies to Commonwealth records which, generally speaking, means that they are available 30 years after the records came into existence (unless the records are “exempt records” within the meaning of the Act).

There is a clear public interest in the content of the records, which 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. Importantly, however, the legal issues in the proceeding do not turn on whether there is a public interest in the records being published. Rather, the legal issue is whether Archives erred in its findings that the records were Sir John’s personal property and were not the property of either the Commonwealth or the official establishment of the Governor-General. Resolution of these issues turns on the proper statutory construction of relevant provisions in the Act, which includes legislative history leading up to the passage of the Act and conventions.

The Court has determined that the applicant has failed to establish any reviewable error in Archives’ decision. It has determined that private and personal correspondence between Sir John and The Queen (or Her Majesty’s Private Secretary) is sui generis and traditionally has been regarded as the personal property of the correspondents. This view has also been taken in respect of correspondence to and from The Queen with other Governors-General, including Sir Paul Hasluck, Sir Zelman Cowen and Sir Ninian Stephen.

The Court has also found that, in providing periodic briefings to The Queen, Sir John Kerr was not exercising the executive power of the Commonwealth under s 61 of the Constitution. The Governor-General performs a wide range of functions, not all of which are performed on the basis of advice from the Prime Minister or the Executive Council.

The Court has noted that Archives’ construction of the Act conforms with the view taken in the United Kingdom, where such correspondence (as well as other private and personal records of The Queen) are housed in the Royal Archives and access to them is governed by specific agreements.

The Court has also found that the records are not “the property of the official establishment of the Governor-General”. That concept is not defined in the Act, but the Court has found that the “official establishment of the Governor-General” refers to persons who assist and support the Governor-General’s performance of official duties, namely the Official Secretary and his or her staff, as opposed to the position of Governor-General itself.

The parties were agreed that, in the event that Professor Hocking was unsuccessful, there should be no order as to costs.

Justice Griffiths

16 March 2018