95.
"For that purpose clause 21 provides that Australian Archives may enter into arrangements with a Governor-General to take custody of records under access rules which a Governor-General may lay down."
In the draft of the Archives Bill that was current at the time that the Prime Minister wrote, cl 21 permitted those arrangements to be made for records of the Governor-General that were exempt from the operation of Divs 2 and 3 of Pt V of the Archives Bill, concerning dealings with Commonwealth records and access to Commonwealth records[1]. Although that draft of the Archives Bill contained no reference to the "official establishment of the Governor-General" as a category of Commonwealth institution, it was still contemplated that the records were Commonwealth records. The Prime Minister was referring to an exemption from the regime of dealings with Commonwealth records and access to Commonwealth records which assumed that those records were Commonwealth records that required exemption. Naturally, once there was express provision for the institution of the Governor-General and removal of the exemption from the Archives Bill when it was reintroduced in 1983 the inference that originals of the correspondence were created or received institutionally, and were therefore Commonwealth records, became even stronger.
246 Fourthly, the same institutional approach to the correspondence was taken after Sir John Kerr's retirement as Governor-General by the different treatment of the original correspondence (the original telegrams sent, the carbon copies of the letters sent, and the original letters received) and the copies made of those originals. Very shortly before Sir John's retirement as Governor-General took effect, on 18 November 1977 the Director-General of the Australian Archives wrote to Mr Smith, as Sir John's Official Secretary, confirming their agreement that both the originals and the "copies" would be transferred to the Australian Archives with the copies then to be sent to a London address for Sir John. After Sir John's retirement took effect, Mr Smith (who was then the Official Secretary to the new Governor-General, Sir Zelman Cowen) wrote to Sir John on 23 December 1977 and described photocopying that he had been undertaking on the instructions of Sir John of correspondence in the "original file" at Government House. He said that he could "copy only at night" and had been encountering problems with the copying process. He explained that "[i]n the meantime the papers are in my strong-room under absolute security until the task is completed and the original file is in Archives".
247 These letters provide strong support for the treatment of Sir John Kerr's correspondence with the Queen as being subject to property rights of the Commonwealth as a body politic or, more loosely, as part of the institution of "the official establishment of the Governor-General". Relevantly, the matters supporting this conclusion are: (i) the presence of the "originals" of the
- ↑ See cl 18(1)(a) of the Archives Bill 1978 (Cth)
