Federal Court Rules Against Disclosure of Whitlam Dismissal Letters

“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.”

“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”.”

"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

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?

“[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.”