Page:Hocking v Director-General of the National Archives of Australia.pdf/69

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63.

Official establishment of the Governor-General

176 It is unnecessary to attempt any general definition of the phrase "official establishment of the Governor-General" in the Archives Act[1]. Although the version of the Governor-General Act 1974 (Cth) in force at the time the Archives Act was enacted did not refer to the Official Secretary[2], the phrase "the official establishment of the Governor-General" certainly includes the Official Secretary to the Governor-General[3] acting in his or her official capacity and, in that capacity, having custody of the records of that institution.

Parties' positions

177 Two aspects of the parties' positions should be noted. First, Professor Jennifer Hocking did not accept that the records which had been deposited with the Australian Archives were the property of the official establishment of the Governor-General. And the Director-General of the National Archives of Australia and the Attorney-General of the Commonwealth, intervening, did not accept that the inference could be drawn that the records were kept in the official establishment of the Governor-General.

178 Second, the parties embraced the conclusion reached by the primary judge[4] and the Full Court of the Federal Court of Australia[5] that the phrase "the property of the Commonwealth or of a Commonwealth institution" was to be given content by the common law. The Director-General of the National Archives of Australia and the Attorney-General of the Commonwealth then submitted that it was critical to examine the common law concerning ownership of correspondence. There can be no dispute that the law distinguishes between: property in or associated with letters as tangible property; copyright in their contents; and other rights relating to their contents, such as the right to restrain a breach of

  1. ↑ Archives Act, s 3(1) para (a) of the definition of "Commonwealth institution".
  2. ↑ Provisions referring to the Official Secretary were introduced into the Governor-General Act by the Public Service Reform Act 1984 (Cth), ss 139, 141.
  3. ↑ See Governor-General Act, s 6.
  4. ↑ Hocking v Director-General of National Archives of Australia (2018) 255 FCR 1 at 29 [102]–[103], 36 [136].
  5. ↑ Hocking v Director-General of the National Archives of Australia (2019) 264 FCR 1 at 13–14 [62], 18 [84]–[86].
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