A century ago, Dicey distinguished between laws and conventions of the constitution on the basis that the latter were ‘not enforced or recognised by the courts’. Today, only the first aspect of Dicey’s observation remains true; while courts generally do not enforce constitutional conventions they are increasingly called upon to recognise conventions for particular purposes. Thus, in Miller (No 1), a majority of the Supreme Court said that courts ‘are neither the parents nor the guardians of political conventions’ but added that ‘they can recognise the operation of a political convention in the context of deciding a legal question’. (para 146)
The High Court of Australia was recently called upon to recognise the operation of a claimed constitutional convention in Hocking v Director-General of the National Archives of Australia. The case concerned an historian’s request to the National Archives of Australia to access 211 letters between the Queen and the Governor-General of Australia, sent around the time of the Governor-General’s hugely controversial dismissal of Prime Minister Gough Whitlam in 1975. The case has potential ramifications for the confidentiality of royal correspondence held throughout the Commonwealth Realms. Most importantly, the case illustrates the way that domestic freedom of information legislation can take primacy over claimed constitutional conventions and ‘The Queen’s wishes’.
The claimed constitutional convention and ‘The Queen’s wishes’
In order to outline the issues in Hocking it is necessary to briefly refer to some of the lesser-known duties of the Governor-General of Australia, which are similar to those of viceroys in other Commonwealth Realms. In addition to Governor-General’s celebrated and sometimes contentious reserve powers, the Governor-General is responsible for keeping the Queen informed of the political happenings of the day in the Dominion. During the 1970s – the period relevant to Hocking – the Governor-General’s despatches took the form of letters and telegrams between the Governor-General and the Queen, via her Private Secretary, sometimes including attachments of photocopied newspaper clippings to corroborate the Governor-General’s observations.
In recent decades, at the conclusion of a Governor-General’s appointment, copies of the despatches and the original correspondence received from the Queen have typically been deposited in the National Archives of Australia. Such deposits are usually said to be subject to the condition that the documents not be made public for 60 years after the end of the Governor-General’s appointment. The documents at issue in Hocking were deposited in this manner, the letter of deposit making clear that it was ‘The Queen’s wishes … [that] these papers are to remain closed until 60 years after the end of [the Governor-General’s] appointment’. (para 12) The Queen subsequently reduced the non-access period to 50 years, albeit with a rider that even after 50 years the documents not be made public without the Queen’s approval. This would have meant that the documents would have remained closed until at least 8 December 2027.
In the Hocking litigation, it was said to be the Queen’s view that correspondence between Her Majesty and the Governor-General was covered by a constitutional convention of confidentiality. In a remarkable letter in evidence in Hocking,the Queen’s Private Secretary wrote to the office of the Australian Governor-General in 2017 asserting:
correspondence between the Sovereign and her Governors-General and their respective officers are made in confidence. These are essentially private communications which are inherently sensitive. … the embargo period of 50 years applies in each of Her Majesty’s 15 Commonwealth Realms, and the same convention of confidentiality is attached to communications between The Queen and her Ministers in the UK. … a convention of confidentiality is necessary to protect the privacy and dignity of the Sovereign and her Governors-General, and to preserve the constitutional position of the Monarch and the Monarchy.(para 34)
In Hocking, the National Archives and the Attorney-General of Australia (both seeking to resist public access to the palace letters) sought to rely on this claimed convention of confidentiality. However, as will be explained below, the constitutional convention only arose for consideration in a very particular statutory setting, and it was ultimately the statute that dictated the outcome in the case.
The statutory setting
In Hocking, the relevant letters were held in the National Archives and access was sought via the Archives Act 1983 (Aust). The Director-General of the National Archives refused access to the records on the basis that they did not fall within the statutory definition of ‘Commonwealth record’, which definition relevantly included a ‘record that is the property of the Commonwealth or of a Commonwealth institution’. (section 3(1) – for clarity, it should be noted that the word ‘Commonwealth’ in this sense refers to the Commonwealth of Australia and not the Commonwealth of Nations.) On the appeal to the High Court, and in academic commentary leading up to it, much energy was directed to the question of whether the word ‘property’ was used in the statute in its common law sense or whether it took its meaning from its statutory context. The government parties (seeking to resist access to the letters) sought to rely on the common law meaning of property and to argue that the above-described constitutional convention of confidentiality pointed against the letters being property of the Commonwealth.
The plurality (Kiefel CJ, Bell, Gageler and Keane JJ) held that the question of whether a document was ‘property of the Commonwealth’ in the Archives Act was one of statutory construction that could not be answered by reference to common law conceptions of property. The plurality considered that this conclusion made it unnecessary to consider the argument based on constitutional convention. However, in obiter dicta, it observed that the claimed constitutional convention ‘is not unambiguously borne out by the practices of Governors-General’, hinting that it was not ‘convinced … of the convention’s existence’. (para 111)
Edelman J, in the majority but writing separately, took the view that the term ‘property’ in the statute was given content by the common law. Accordingly, his Honour engaged substantively with the government parties’ argument that the purported constitutional convention of confidentiality militated against a finding that the letters were the property of the Commonwealth. In dealing with the argument, Edelman J tested the existence of the claimed constitutional convention using the test articulated by Ivor Jennings in The Law and the Constitution (5th ed, University of London Press, 1959, page 136). In essence, Jennings’ test asks whether the convention is evident from past practice, is considered binding by the relevant actors and is supported by a ‘good reason’. Edelman J’s endorsement of the test would appear to bring Australia into line with Canada and the United Kingdom, where Jennings’ test has found favour in the courts.
Applying Jennings’ test, Edelman J was not satisfied of the existence of the claimed constitutional convention. His Honour considered the historical practice to be haphazard, with royal correspondence sometimes kept by the Governors-General or their families while, at other times, deposited in national institutions or archived on government files. In addition to ‘the weakness of the precedents’, his Honour identified a ‘lack of evidentiary support’ for the proposition that the relevant actors felt themselves bound by the purported convention of confidentiality. (para 259) Finally, and perhaps most controversially, his Honour was not satisfied that there was an adequate reason for the claimed convention, implicitly rejecting the reason put forward by the Queen in 2017 correspondence, that ‘a convention of confidentiality is necessary to protect the privacy and dignity of the Sovereign and her Governors-General, and to preserve the constitutional position of the Monarch and the Monarchy.’ (para 34)
The remaining two justices, Nettle J (dissenting) and Gordon J, did not explicitly address the claimed constitutional convention. In the result, the letters were declared to be Commonwealth records within the meaning of the Archives Act and the Director-General of the National Archives was ordered to reconsider the request for access. It is now expected that the letters will be released on 14 July.
In some ways, the decision in Hocking simply underscores what was already well known, namely that when constitutional convention and legislation conflict, the latter will prevail (especially when the claimed constitutional convention lacks evidentiary support). The case is nevertheless instructive because it demonstrates the relative freedom of the Commonwealth Realms to legislate for greater public access to royal correspondence than might be provided under the United Kingdom’s legislation, particularly the Public Records Act 1958 (UK) and the Freedom of Information Act 2000 (UK). As was stated by the Hocking plurality, in apparent anticipation of The Queen’s displeasure at finding her correspondence laid open to public access:
To the extent that the [outcome of the case] … might run counter to the current understanding of the Private Secretary and to the present expectations of Her Majesty about the timing of public access … [the outcome] is the product of the application of the Archives Act, properly interpreted, to the historical circumstances.
Julian R Murphy is a PhD candidate at the Melbourne Law School. You can find some of his scholarship here.
(Suggested citation: J. R. Murphy, ‘The Palace Letters Case: Constitutional Conventions and the Confidentiality of Royal Correspondence in the Commonwealth Realms’, U.K. Const. L. Blog (13th July 2020) (available at https://ukconstitutionallaw.org/))