Hocking v Director-General of the National Archives of Australia

Case [2020] HCA 19

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

JENNIFER HOCKING  APPELLANT

AND

DIRECTOR-GENERAL OF THE NATIONAL

ARCHIVES OF AUSTRALIA  RESPONDENT

Hocking v Director-General of the National Archives of Australia

[2020] HCA 19

Date of Hearing: 4 & 5 February 2020

Date of Judgment: 29 May 2020

S262/2019

ORDER

1.Appeal allowed.

2.Set aside the orders of the Full Court of the Federal Court of Australia made on 8 February 2019 and, in their place, order that:

(a)the appeal to the Full Court be allowed;

(b)the orders of Griffiths J made on 16 March 2018 be set aside and, in their place, it be:

(i)declared that the contents of Record AA1984/609 ("the deposited correspondence") constitute Commonwealth records within the meaning of the Archives Act 1983 (Cth);

(ii)ordered that a writ of mandamus issue to compel the Director-General of the National Archives of Australia to reconsider Professor Hocking's request for access to the deposited correspondence; and

(iii)ordered that the Director-General of the National Archives of Australia pay Professor Hocking's costs at first instance; and

(c)the Director-General of the National Archives of Australia pay Professor Hocking's costs of the appeal to the Full Court.

3.The Director-General of the National Archives of Australia pay Professor Hocking's costs of this appeal.

On appeal from the Federal Court of Australia

Representation

B W Walker SC with T J Brennan for the appellant (instructed by Corrs Chambers Westgarth)

S P Donaghue QC, Solicitor-General of the Commonwealth, with C L Lenehan SC, D M Forrester and J A G McComish for the respondent and the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Hocking v Director-General of the National Archives of Australia

Administrative law (Cth) – Judicial review – Archives – Access to records – Where Governor‑General engaged in correspondence with Her Majesty the Queen – Where correspondence described as personal and confidential – Where Official Secretary to Governor‑General kept correspondence and made arrangement to deposit correspondence with predecessor organisation to National Archives of Australia ("Archives") – Where correspondence deposited by Official Secretary on instructions of former Governor-General after his retirement – Where Archives Act 1983 (Cth) subsequently enacted – Where s 31 of Archives Act provides that Commonwealth records within care of Archives must be made available for public access when within "open access period" – Where s 3(1) defines "Commonwealth record" as including "record that is the property of the Commonwealth or of a Commonwealth institution" – Where "Commonwealth institution" defined as including "the official establishment of the Governor‑General" – Whether correspondence property of Commonwealth or of official establishment of Governor‑General – Whether "property" within context of Archives Act connoted relationship involving holding of rights corresponding to ownership or possession at common law or connoted existence of legally endorsed concentration of power to control custody of record.

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Details
AGLC
Hocking v Director-General of the National Archive of Australia [2020] HCA 19
Case
[2020] HCA 19
Decision Date

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia by Professor Hocking against the Director-General of the National Archives of Australia. The dispute centred on Professor Hocking's request for access to correspondence between a former Governor-General and Her Majesty the Queen, which had been described as personal and confidential. This correspondence was deposited with the predecessor organisation to the National Archives by the Official Secretary to the Governor-General, acting on instructions from the former Governor-General after his retirement. The core of the disagreement was whether this correspondence constituted "Commonwealth records" under the *Archives Act 1983* (Cth), thereby making it subject to public access.

The High Court was required to determine whether the deposited correspondence was the property of the Commonwealth or of a Commonwealth institution, specifically the "official establishment of the Governor-General," as defined by the *Archives Act*. This involved interpreting the meaning of "property" within the context of the Act, specifically whether it referred to a common law relationship of ownership or possession, or a broader concept of a legally endorsed power to control the custody of the record. The court also had to consider whether the personal and confidential nature of the correspondence, and the circumstances of its deposit, affected its status as a Commonwealth record.

The High Court allowed the appeal, finding that the correspondence constituted Commonwealth records within the meaning of the *Archives Act*. The Court reasoned that the term "property" in the Act encompassed a legally endorsed concentration of power to control the custody of a record, rather than strictly common law ownership. It was held that the official establishment of the Governor-General was a Commonwealth institution, and records kept by its Official Secretary, even if described as personal and confidential, were considered Commonwealth property if they were kept by reason of their official character or by lawful power of control. The Court concluded that the duty of loyalty owed in Australia regarding original records of official correspondence meant that such records were not likely to be treated as private property for sale or distribution. Consequently, the Court set aside the orders of the Full Court of the Federal Court and ordered that a writ of mandamus issue to compel the Director-General to reconsider Professor Hocking's request for access.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 8 February 2019 and, in their place, order that:

(a) the appeal to the Full Court be allowed;

(b) the orders of Griffiths J made on 16 March 2018 be set aside and, in their place, it be:

(i) declared that the contents of Record AA1984/609 ("the deposited correspondence") constitute Commonwealth records within the meaning of the Archives Act 1983 (Cth);

(ii) ordered that a writ of mandamus issue to compel the Director-General of the National Archives of Australia to reconsider Professor Hocking's request for access to the deposited correspondence; and

(iii) ordered that the Director-General of the National Archives of Australia pay Professor Hocking's costs at first instance; and

(c) the Director-General of the National Archives of Australia pay Professor Hocking's costs of the appeal to the Full Court.

3. The Director-General of the National Archives of Australia pay Professor Hocking's costs of this appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, BELL, GAGELER AND KEANE JJ (dissent)
In any event, it could hardly be supposed that confidences would be more likely to be protected if title to the correspondence were held privately, to the exclusion of the Commonwealth, so that the Governor-General personally could sell, publish or distribute the correspondence at any time. The respondent correctly observed that "no responsible Governor-General would ever do such a thing". But the reason this would not occur in Australia is the duty of loyalty that exists for original records kept of correspondence sent or received. This duty contrasts with the position in the United States, where Presidents do not regard themselves as "trustees for the American people" so that, absent voluntary arrangements for a Presidential Library, the institutional correspondence of a President can be sold "for a fancy sum" or can be the subject of arrangements, such as in the case of President Monroe, for publication with the profits to be divided among his daughters and son-in-law[309].[309] Nixon v United States (1992) 978 F 2d 1269 at 1278.Conclusion Orders should be made as follows:1. Appeal allowed.2.Set aside the orders of the Full Court of the Federal Court of Australia made on 8 February 2019 and, in their place, order that:(a) the appeal to the Full Court be allowed; (b)the orders of Griffiths J made on 16 March 2018 be set aside and, in their place, it be:(i)declared that the contents of Record AA1984/609 ("the deposited correspondence") constitute Commonwealth records within the meaning of the Archives Act 1983 (Cth);(ii)ordered that a writ of mandamus issue to compel the Director-General of the National Archives of Australia to reconsider Professor Hocking's request for access to the deposited correspondence; and(iii)ordered that the Director-General of the National Archives of Australia pay Professor Hocking's costs at first instance; and(c)the Director-General of the National Archives of Australia pay Professor Hocking's costs of the appeal to the Full Court.3. The Director-General of the National Archives pay Professor Hocking's costs of this appeal.

Ratio Decidendi

Legal Principle Established

Established by:

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