Dear Colleagues;

The decision today in Hocking v Director-General of the National Archives of Australia [2020] HCA 19 (29 May 2020) http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/19.html is a big deal politically in Australia, holding (by 6-1, Nettle J dissenting) that letters between Sir John Kerr and the Queen relating to the dismissal of the Whitlam government in 1975 are

“Commonwealth records” within the meaning of the Archives Act 1983 (Cth) and hence are subject to the disclosure regime under that legislation. But it incidentally also has some passing comments on torts issues relating to chattels and the nature of the concept of “property”.

While there is a tantalising passing reference to detinue in the judgement of the “plurality” (KIEFEL CJ, BELL, GAGELER AND KEANE JJ) at [102] (with the interesting possible implication that perhaps Sir John Kerr’s estate would now be able to sue to recover the documents), the main discussion is found in the fascinating examination of the area by EDELMAN J from [201] under the sub-heading “The common law meaning of property in relation to chattels”. It ranges over a wide range of controversial issues, commenting on “numerus clausus” arguments about the different types of property rights (an article by Swadling), and digging into the arguments about “bundle of rights” with reference to Honore, Penner and Smith among others. The “right to exclude”, factual possession and intention to possess, possession as an agent, who owns written letters, the application of Justinian’s Institutes (from [235]) all get a look in.

By the way, the decision does not mean (as some press headlines seem to be suggesting) that Professor Hocking will now get full access. It simply means that she can apply under the Act and the Archivist will then have to decide whether various exemptions under the Act apply, including questions of “confidentiality”. So there may be more private law issues ahead around the grounds for an equitable “breach of confidence” action!

Regards

Neil

 

 

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

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