Sir John Kerr’s correspondence in the High Court … Submissions in the Archives case … Commonwealth property or personal property … What is being hidden? … Accessing governor general’s letters about the sacking of the Whitlam government … Bret Walker v Stephen Donaghue … Alan Zheng sifts through the paperwork 

The letters are held by the National Archives and last year the Full Feds said they did not fall within the scope of Commonwealth records and accordingly could not be disclosed in accordance with the Archives Act 1986. 

Prof. Hocking, was granted special leave in August and her appeal is supported by crowd funding and the Grata Fund. 

Justice Geoffrey Flick’s “great respect” dissent from findings by James Allsop and Alan Robertson also provide inspiration for her to go another round. 

Flick could scarcely veil his disbelief that the correspondence could be considered the personal property of the ghost of Sir John Kerr rather than records of the Commonwealth. 

That conclusion, Justice Flick said, could not be supported by reference to the positions occupied by the Queen and GG, their functions, the nature and subject of correspondence, and the importance of that subject to the constitutional system of government.

Submissions in the case have been filed and it’s working taking a squiz at what’s on offer. 

Bret Walker SC and Tom Brennan (for Hocking) argue that to say the records were referable to something the GG had done “personally” should not automatically exclude it from being done “officially”. 

The image of John Kerr mulling with HM The Queen the use of the Constitution’s s.64 power may suggest he was lonely and in need of enjoyable company, but that did not render the task at hand any less official.

And that was the point. Most aspects of a GG’s role will engage an element of personal performance, yet at the same time that doesn’t exclude the constitutional functions of the office.

One of the key pillars of the majority’s reasoning – that the GG’s personal property does not fall within “Commonwealth records” even when they have been created or received by the GG in the performance of his or her office – rested on an FOI decision in Kline v Official Secretary of the GG.  

Walker’s submission is that Kline should be distinguished from the facts here and is only applicable to documents relevant to the GG’s substantive powers and functions, not to those associated with the GG’s personal or private records.

“Differing views on rules governing open access to historical records have nothing to do with the allocation of property rights as between the Commonwealth and the person holding office as Governor-General.”

“Property of the Commonwealth,” then, should be given its natural meaning.

The documents created or received by the GG in the performance of his role should be taken as conducted by the Commonwealth acting as a body politic. 

Kerr was but the living flesh and emanation of the Commonwealth when he sent and received the relevant correspondence.  

His relationship with the Commonwealth was analogous to that between a public officer and the crown. 

“All profits or advantages gained by a public officer’s use of his or her office are held for the benefit of the body politic and not for the officer personally.” 

Allowing  governors general to acquire personal property risked opening the gate to acquiring interests which conflicted with the constitutional duties of the office holder. Their performance in office must instead be the property of the body politic.

Another key element of the appellant’s case rests on the subjective treatment of the letters.

No one who handled the relevant papers had perceived them to be the GG’s personal property.

Letters between Kerr and members of the royal retinue indicated an understanding that the letters were not his own property, but only held in his custody.

At various times, the evidence showed that the Queen was entitled to embargo the correspondence, the Queen’s private secretary believed them to be the property of the Queen, the Australian ministerial government had expected them to be protected by archival processes, and that access would be governed by policies and processes external to Kerr’s personal whim.

Even Kerr himself – who had a protocol for distinguishing between personal and non-personal papers – treated the correspondence as non-personal papers by sending them to his official secretary who then lodged them with the archives.

All this is to establish that the records are inconsistent with personal property.

The fact that the documents were labelled “personal and confidential” was merely a convention adopted by Buckingham Palace and had appeared on previous correspondence by GG Paul Hasluck which was still disclosed under the access provisions of the Archives Act.  

The relevance of Hasluck’s correspondence is unclear, however, with opposing evidence that those records actually involved Hasluck writing to the Queen’s official secretary Martin Charteris for advice in Charteris’ personal capacity, rather than in his capacity as a conduit for the Queen.

In the opposing trench, we find Stephen Donaghue, Craig Lenehan, Danielle Forrester and James McComish, for the National Archives and Commonwealth attorney general intervening.

They admit the relevant correspondence in 1975 was created or received by Kerr in performing the functions of governor general.

Unlike the appellant who uses “public law questions of function … to control the answer to a private law question of property,” they say “Commonwealth records” should only extend to property “owned under the general law by the Commonwealth” – namely, its organisations or institutions. 

On this construction, the letters are excluded from “Commonwealth records” at general law on the basis of ordinary principles of copyright, confidentiality and property, although section 57 of the Act may disagree. 

Donaghue argues the Archives Act utilises a property-based approach, not reliant on administrative provenance or custodial questions. 

He argues his opponent’s proposition – which is centred on querying whether the documents were created or received in the conduct of public office – ignores the property-based criteria enacted by parliament.

Early rumblings also suggest a key battleground will be the parties’ diverging approaches to the legislative history of the Archives Act.  

The appellant will argue that the parliamentary committees tasked with considering amendments to the Archives Act never sought to restrict the scope of the open access provisions and hence, exclude the GG’s correspondence with the Queen. 

But there are incriminating extrinsic materials against this view, central among which are the second reading speeches which state the Act should not apply to the GG’s “private or personal records”.  

This is given further weight by the qualified definition of “Commonwealth institution” as “the official establishment of the Governor General”. 

As to whether the GG should be properly considered an emanation of the Commonwealth as a body politic, Donaghue differs. 

The GG, properly considered, has two interfaces – one with the Queen and one with the Commonwealth. 

This two interface model offered a dubiously artificial conclusion which Walker argued in reply lent itself to the “impermissible assumption that the Queen is not herself part of the Commonwealth”.  

“With the Governor-General, the Queen forms part, and is at the centre, of the Commonwealth as a polity.” 

Notwithstanding this, Donaghue’s view is that when governors general exercise certain functions – including accrediting diplomats or concluding treaties –  they are acting as an emanation of the Commonwealth.  

But the role of GG escapes the “single monolithic characterisation” of being an emanation of the Commonwealth as a body politic. 

When the GG corresponds with Her Maj, he or she is not being directed by the Queen. The content and frequency of the correspondence is determined by the GG alone. This, according to the respondent, favours the records being personal property. 

The appellant’s key position – that the correspondence belongs to the polity in which Kerr held office because they were created or received in the performance of his duties – also has a limited basis in the cases. 

Far from illustrating questions of ownership of correspondence, the authorities establish:

“That the crown has an interest in property that is acquired when office holders receive property as a result of misusing their office in a way that constitutes a breach of fiduciary duty (often by taking bribes).”  

The guidelines for the National Archives also state the GG’s correspondence is considered the governor general’s personal property. 

That, along with evidence of historical practice and convention suggesting the papers were Kerr’s personal property, could be a roadblock for Hocking. 

The historical practices of public officers, including correspondence between senators and the GG, gifts received by members of parliament and draft judgments and memoranda in the case of judges, all show there is no absolute rule that property received in the course of discharging a public office belongs to the body politic.

Rather, they belong to a category of records that may be created or received by a person holding public office without being “property of the Commonwealth”. 

It is this category where the Palace Papers will fall if the Queen’s men succeed.

If Hocking triumphs, she may still come up against a resistant Buckingham Palace which has been digging its own defensive trenches in the interim.

The palace recently insisted that the Queen has a veto over the release of correspondence with her Australian governors general.  

See submissions in Hocking v Director General of the National Archives of Australia