Hocking v Director-General of the National Archives of Australia

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.