69.
EDELMAN J.
Introduction
192 On 26 August 1978, Mr David Smith, acting in his capacity as Official Secretary to the Governor-General, and on instructions of the former Governor-General, Sir John Kerr, lodged with the Australian Archives (now the National Archives of Australia, or "Archives"[1]) a package of documents being "originals" of correspondence between Sir John and the Queen (always by her Private Secretary), namely the originals of letters received, the originals of telegrams sent, and the contemporaneous copies of letters sent (described in some correspondence as "carbon copies") with photocopies of attachments such as newspaper articles. Those original documents are now held in record AA1984/609. The appellant, Professor Hocking, is an academic historian who was refused access to those original documents by the Archives. She applied for judicial review of that decision but her application was dismissed by the Federal Court of Australia. An appeal was dismissed by a majority of the Full Court of the Federal Court of Australia.
193 The period of the correspondence covered by the original documents was one described by the primary judge as relating to "one of the most controversial and tumultuous events in the modern history of the nation"[2], namely the dismissal of Prime Minister Whitlam by the Governor-General, Sir John Kerr. The primary judge found that Sir John had assumed that he owned the "material"[3]. Two years prior to the lodgement of the original documents with the Archives, Sir John had remarked to the Private Secretary to the Queen that, upon departure from office, "[e]ach Governor-General takes with him such material". However, Sir John also recognised that the historical significance of the correspondence meant that it had to be preserved. Perhaps for this reason, after his retirement from office, Sir John took the material with him by having Mr Smith, his former Official Secretary, make and send photocopies of the originals to him in London, whilst preserving the originals in a file at Government House to be deposited with the Archives. The photocopied material sent to Sir John in London is now also contained in the Archives, as Series M4513 Part 1. That material is a near complete copy of the original documents. But this litigation concerns the "originals", not the photocopies.
