Episode 62

Context is always important and often decisive, as the case on access to correspondence between Sir John Kerr and the Queen shows1.  Marked ‘personal and confidential’, these papers have been the subject of intense speculation ever since the dismissal.  Public access could be had if each was a ‘Commonwealth record’, defined as ‘a record that is the property of the Commonwealth’2.  Were they ‘property of the Commonwealth’ or did they remain part of Kerr’s estate?  The plurality said ‘property’ was not limited to common law concepts of possession, and was ‘informed by the statutory context’.  Within the Archives Act, it was ‘best understood as a legally endorsed concentration of power to control the physical custody of the record’ (at [95]).  The ‘capacity to control the physical custody’ made it a ‘record’ to which public access must be given3iTip – statutory context may require departure from the common law meaning of words.

Steven Churches – Adelaide-based barrister

See here for the official PDF of Episode 62 of interpretation NOW!

In this episode:

Credits – Steven Churches, Gordon, Amy & Oliver.


1 Hocking v Director-General of the National Archives [2020] HCA 19.

2 s 3(1) of the Archives Act 1983 (Cth).

3 Made public on 14 July 2020 – Kerr did not tell the Queen in advance.