4.
12 The letter of deposit which Mr Smith wrote to the Australian Archives in his capacity as Official Secretary was in the following terms:
"This package contains the personal and confidential correspondence between the Right Honourable Sir John Kerr, AK, GCMG, GCVO, K St J, QC, Governor-General of the Commonwealth of Australia from 11 April 1974 until 8 December 1977, and Her Majesty The Queen.
In accordance with The Queen's wishes and Sir John Kerr's instructions, these papers are to remain closed until 60 years after the end of his appointment as Governor-General, ie until after 8 December 2037.
Thereafter the documents are subject to a further caveat that their release after 60 years should be only after consultation with the Sovereign's Private Secretary of the day and with the Governor-General's Official Secretary of the day."
13 Unchallenged in the appeal is a finding by the primary judge that "[a]lthough Sir John had ceased to be Governor-General when the records were placed by Mr Smith with Australian Archives, it is plain that he was doing so as Sir John's agent and not as the agent of the incumbent Governor-General"[1]. Against the background of the agreed fact that Mr Smith deposited the documents in his capacity as Official Secretary, the finding can only be understood as a finding that, in depositing the correspondence, Mr Smith acted not on the instructions of Sir Zelman Cowen but on the instructions of Sir John, whose affairs as Governor-General Mr Smith was in the process of winding up.
14 More about the contents of the correspondence and about the circumstances of its creation can be gleaned from Sir John Kerr's published autobiography[2] and from his unpublished journals, extracts from both of which are in evidence. The extracts reveal that Sir John engaged in the correspondence in the performance of what he understood to be a "duty" of the office of Governor-General to "keep Her Majesty informed" and that he did so "with the conscious and deliberate thought that the reports would be preserved" in the Australian Archives as a "record" of his "Governor-Generalship". From a personal letter Sir John later wrote to Mr Smith, it appears to have been the practice of Sir John as Governor-General and of Mr Smith as Official Secretary that Mr Smith checked Sir John's correspondence
