Hocking v Director-General of National Archives of Australia [2018] FCA 340

FEDERAL COURT OF AUSTRALIA

Hocking v Director-General of National Archives of Australia [2018] FCA 340 File number: NSD 1843 of 2016

Judge: GRIFFITHS J

Date of judgment: 16 March 2018

Catchwords: ADMINISTRATIVE LAW – judicial review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the National Archives of Australia – where the applicant sought access under the Archives Act 1983 (Cth) (the Act) to a bundle of correspondence, referred to as AA1984/609, between the then Governor-General of Australia, Sir John Kerr, and The Queen or The Queen's Private Secretary – whether AA1984/609 was a Commonwealth record such that public access to it is governed by Div 3 of Pt V of the Act – whether any document in AA1984/609 is "the property" "of the Commonwealth" or of "the official establishment of the Governor-General" – whether s 6(2) of the Act applies to AA1984/609, with access governed by the terms of the instrument of deposit – whether the presumption of regularity applies. CONSTITUTIONAL LAW – consideration of the relationship between the Governor-General and the Commonwealth under the Constitution – consideration of the roles of, and the relationship and communication between, The Queen and the Governor-General. Held: application dismissed.

Legislation: Archives Act 1983 (Cth) Freedom of Information Act 1982 (Cth) Governor-General Act 1974 (Cth) Judiciary Act 1903 (Cth), s 39B Freedom of Information Act 2000 (UK)

Cases cited: Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; 170 CLR 649 Kline v Official Secretary to the Governor-General [2013] HCA 52; 249 CLR 645 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Nixon v Administrator of General Services 433 US 425 (1977) Nixon v Sampson 389 F. Supp. 107 (1975) Ray v Superannuation Complaints Tribunal [2004] FCA 1120; 138 FCR 548 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936