Hocking v Director-General of the National Archives of Australia: Can Kerr’s Correspondence with the Queen Be Kept Secret Forever?

Abstract

For decades, there has been much speculation over the contents of the correspondence between the Governor-General, Sir John Kerr, and the Queen concerning the dismissal of the Whitlam Government in 1975. This appeal to the High Court of Australia concerns whether these documents are ‘Commonwealth records’ that must be released to the public in accordance with the Archives Act 1983 (Cth), or are the private property of the former Governor-General, with access controlled by the Queen. The answer turns on whether the documents are the ‘property’ of the Commonwealth or a Commonwealth institution. The Full Federal Court of Australia held that these documents were Kerr’s personal property and that he therefore controlled the conditions of access to them. The appellant argues that the documents were made in the course of exercising official Commonwealth functions and are the property of the Commonwealth. This column contends that ‘property’ must be interpreted consistently with the purposes of the Act and accordingly includes documents created by the highest officers of the nation in the exercise of their official functions.