55.
153 Then, as foreshadowed, on 26 August 1978 Mr Smith wrote to the Director-General of the Australian Archives:
"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."
154 As can be seen, therefore, at all relevant times Sir John regarded the letters from the Monarch, and the copies of his own letters to the Monarch, as subject to an established understanding of confidentiality. Consistently with that understanding, Sir John resolved that the correspondence should be deposited with Archives subject to the embargo. And, to that end, Sir John gave instructions for the correspondence to be so deposited. On those facts, the overwhelming inference is that Sir John continued to exercise control over the correspondence at the time of deposit.
155 A lot is made in the appellant's argument, and the plurality's reasons[1], of the fact that the records were at some points of time kept by Mr Smith in his official strong room. But, for the reasons already expressed[2], the mere fact that a personal communication may be kept pro tem in an available place of storage of the official establishment is not sufficient to infer an intention that the communication should thenceforth stand as an official record of that establishment. Much less could it be sufficient to infer an intention that Mr Smith or anyone else in the official establishment could thenceforth exercise control over the correspondence, personally or in an official capacity.
156 A lot is made, too, in the plurality's reasons[3], of the fact that the letter of deposit with Archives was on official letterhead and identified Mr Smith as the "Official Secretary to the Governor-General". But that unexceptional use of
