2.
5 Professor Jennifer Hocking is an academic historian and writer with a particular interest in the period of Australian constitutional and political history in which Sir John Kerr held the office of Governor-General. On 31 March 2016, she requested access to the file within the custody of the Archives which contains the deposited correspondence. On 10 May 2016, the Director-General rejected her request for access on the basis that the contents of the file were not Commonwealth records. That characterisation of the deposited correspondence was upheld on judicial review by the Federal Court, at first instance (Griffiths J)[1] and on appeal by a majority of the Full Court (Allsop CJ and Robertson J, Flick J dissenting)[2].
6 We would allow Professor Hocking's appeal from the judgment of the Full Court, declare the deposited correspondence to be Commonwealth records within the meaning of the Archives Act and order that a writ of mandamus issue to compel the Director-General to reconsider Professor Hocking's request for access.
7 Contrary to the arguments of the parties, the outcome of the appeal does not turn on who might have been the true owner of the correspondence at common law or on expectations held at the time of its deposit with the Australian Archives by reference to constitutional convention or otherwise. The appeal turns rather on the construction and application of the elaborate statutory definition of "Commonwealth record". In particular, it turns on the application to the deposited correspondence of that part of the definition which on its proper construction operates to include records the physical custody of which is within the lawful power of control of specified functional units of government, one of which is the "official establishment of the Governor-General". The determinative consideration is that the correspondence met that part of the definition at the time of its deposit irrespective of its ownership.
8 Explaining why that is so commences best with a description of the deposited correspondence and an explanation of the circumstances of its creation, keeping and deposit followed by an examination of the scheme and legislative history of the Archives Act. Issues of construction are then best resolved before turning to note the detail of the arguments of the parties concerning the ownership of the records and moving finally to an elucidation of the determinative consideration.
