Hocking v Director-General of the National Archives of Australia

Facts

Jenny Hocking sought access to correspondence between the Governor-General Sir John Kerr and the Palace (including the Private Secretary to the Queen) surrounding the 1975 constitutional crisis. The National Archives of Australia refused access to the letters, classifying them as personal communications of the Governor-General rather than Commonwealth records subject to the Archives Act 1983 (Cth). Hocking challenged that classification through the Administrative Appeals Tribunal, the Full Federal Court, and ultimately the High Court.

Issues

1. Whether the correspondence between the Governor-General and the Queen's Private Secretary constituted 'Commonwealth records' within the meaning of the Archives Act 1983 (Cth). 2. Whether the letters were the personal property of Sir John Kerr or records belonging to the Commonwealth.

Holding

By majority (4:1, Nettle J dissenting), the High Court held that the letters were Commonwealth records within the meaning of the Archives Act 1983 (Cth) and accordingly were subject to the access regime under that Act.

Ratio decidendi

Correspondence created or received by the Governor-General in the exercise of his official constitutional functions constitutes a 'Commonwealth record' under the Archives Act 1983 (Cth) and does not become the personal property of the holder of that office merely because the correspondence was with the Sovereign or her representative; the relevant inquiry is whether the document came into existence in the course of, and for the purposes of, the exercise of an official Commonwealth function.

Obiter dicta

The majority observed, without deciding, broader questions about the nature of the Governor-General's legal relationship with the Crown and the extent to which communications between the Governor-General and the Palace may engage conventions of constitutional confidentiality, leaving those questions for future cases.

Significance

Hocking is the leading Australian authority on the classification of official correspondence of constitutional office-holders as Commonwealth records and significantly expanded public access rights to historical government documents under the Archives Act 1983 (Cth), with important implications for transparency and constitutional accountability.

Key authorities

• Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421considered
• Pfeiffer v Stevens Pfeiffer v Stevens (2001) 209 CLR 57considered
• Hocking v Director-General of the National Archives of Australia Hocking v Director-General of the National Archives of Australia (2019) 269 FCR 337overruled
• Re Kline Re Kline, 849 F 2d 718 (DC Cir, 1988)considered