43.
of the correspondence was such that it was only to be expected that the correspondence would be kept within the official establishment of the Governor-General as the functional unit of government responsible for keeping records created or obtained by the Governor-General in his or her official capacity. With respect to the majority in the Full Court, we cannot see how the correspondence could appropriately be described, however "loosely", as "private or personal records of the Governor-General"[1] even allowing for the ambiguity of the description of "private or personal". It cannot be supposed, for example, that Sir John Kerr could have taken the correspondence from the custody of the official establishment and destroyed it or sold it, and the sequence of events which resulted in its deposit with the Australian Archives demonstrates that such a possibility was never contemplated.
118 The inference is sufficient to conclude that the correspondence was properly characterised at the time of deposit as property of the official establishment of the Governor-General. The conclusion follows irrespective of whether the Commonwealth as a body politic or Sir John Kerr as an individual was the true owner of the correspondence as a matter of common law. Conclusion
119 The conclusion that the correspondence was the property of the official establishment of the Governor-General at the time of deposit with the Australian Archives is sufficient to lead to the ultimate conclusion that each item of the deposited correspondence was then a Commonwealth record, and remains a Commonwealth record in the care and management of the Archives.
120 There is accordingly no need to resolve the controversy about whether the Commonwealth as a body politic or Sir John Kerr as an individual was the true owner at the time of its deposit with the Australian Archives. If Sir John was the true owner, his rights of ownership were unaffected by the deposit, were unaffected by the subsequent enactment of the Archives Act, and enured for the benefit of his estate. The mere existence of those rights would have no effect on the characterisation of each item of the deposited correspondence as a Commonwealth record or on the application of Div 3 of Pt V to the deposited correspondence.
121 For completeness, it should be added that the fact that the correspondence was deposited under an arrangement between the Official Secretary and the Director-General of the Australian Archives and was fulfilled by the Official
- ↑ Hocking v Director-General of the National Archives of Australia (2019) 264 FCR 1 at 20 [95].
