KIEFEL CJ, BELL, GAGELER AND KEANE JJ.
Introduction
1 The Right Honourable Sir John Kerr held the constitutional office of Governor-General of the Commonwealth of Australia from 11 July 1974 until 8 December 1977. Throughout that tumultuous period in Australian constitutional and political history, Sir John engaged in "personal and confidential" correspondence with Her Majesty the Queen.
2 Following Sir John Kerr's retirement from the office of Governor-General, a sealed package containing contemporaneous copies of correspondence sent by him to Her Majesty and originals of correspondence received by him from Her Majesty was deposited with the Australian Archives. The Australian Archives was an organisation within the Department of Home Affairs which operated under administrative arrangements first laid down during World War II. The package was deposited by the Official Secretary to the Governor-General ("the Official Secretary") under cover of a letter expressing Her Majesty's "wishes" and Sir John's "instructions" that its contents should remain "closed" for 60 years from his date of retirement, so as not to be available for public access until after 8 December 2037. Much later, another letter from the Official Secretary, sent not long after Sir John's death on 24 March 1991, announced that Her Majesty had "reduced" the closed period to 50 years, so as to allow release to the public after 8 December 2027.
3 With the enactment of the Archives Act 1983 (Cth), to which it will be necessary to turn in some detail, the deposited correspondence became "records" forming part of the "archival resources of the Commonwealth" within the "care and management" of the National Archives of Australia ("the Archives"), the powers of which are exercisable by the Director-General of the Archives ("the Director-General"). The "archival resources of the Commonwealth" consist of "Commonwealth records" and "other material" that are "of national significance or public interest" and that "relate to", amongst other things, "the history or government of Australia".
4 By force of the Archives Act, subject to exceptions the potential application of which are not in issue, a "Commonwealth record" within the care of the Archives must be made available for public access once the record is within the "open access period". The open access period for a Commonwealth record that came into existence before 1980 is on and after 1 January in the year that is 31 years after the year of its creation. There is no requirement for public access to archival resources of the Commonwealth that are not Commonwealth records.
