42.
the property of the official establishment of the Governor-General. The appeal can, and therefore should, be determined through the resolution of that issue alone.
Property of the official establishment of the Governor-General?
114 The focus of the parties on the ownership of the correspondence resulted in the significance of the circumstances in which the correspondence came to be deposited with the Australian Archives not being brought to the attention of the Federal Court. The significance is as follows.
115 The sequence of events that has been recounted makes apparent that, at least from the time of Sir John Kerr's departure from Government House upon his retirement from office on 8 December 1977 until the time of the deposit of the correspondence on 26 August 1978, the correspondence was in the lawful physical custody of Mr Smith in his capacity as Official Secretary. During that period, Mr Smith in his private capacity made copies of the correspondence for Sir John in his private capacity. But that does not detract from the fact that Mr Smith held the correspondence throughout the period in the proper performance of his functions as Official Secretary. He did so in order to fulfil the arrangement he had made in his capacity as Official Secretary with Professor Neale in his capacity as Director-General of the Australian Archives in November 1977 to deposit the correspondence with the Australian Archives. The making of the arrangement had been suggested by Mr Fraser as Prime Minister to Sir John as Governor-General and the arrangement was undoubtedly made with the knowing approval of Sir John when he was still Governor-General. On Sir John's instructions, Mr Smith then went on to fulfil the arrangement by depositing the correspondence with the Australian Archives in his capacity as Official Secretary after Sir John's retirement.
116 The very actions of Mr Smith in making and fulfilling in his capacity as Official Secretary the arrangement by which the correspondence came to be deposited with the Australian Archives are sufficient to demonstrate that lawful power to control the physical custody of the correspondence then lay with Mr Smith in his capacity as Official Secretary. The quality of that power to control the physical custody of the correspondence is not affected by the finding that Mr Smith acted on the instructions of Sir John Kerr in making the deposit in his capacity as Official Secretary just as it is unaffected by the inference that the arrangement was entered into by Mr Smith in his capacity as Official Secretary with the knowing approval of Sir John when he was still Governor-General.
117 The inference that Mr Smith in his capacity as Official Secretary had lawful power to control the physical custody of the correspondence is compelling. It is, after all, the power that was actually exercised by the unit of government in whose physical custody the correspondence was in fact kept. The nature and significance
