44.
Secretary in his official capacity also means that the arrangement was not one by which the custody of records was accepted by the Australian Archives "from a person other than a Commonwealth institution". The consequence is that s 70(3) of the Archives Act has no application to the arrangement. Even if it did, the character of each item of the deposited correspondence as a Commonwealth record would make Div 3 of Pt V applicable to it through the operation of s 6(3) notwithstanding s 6(2).
122 To the extent that the conclusion that each item of the deposited correspondence is a Commonwealth record might run counter to the current understanding of the Private Secretary and to the present expectations of Her Majesty about the timing of public access to it, two points are to be made. The first is that the conclusion is the product of the application of the Archives Act, properly interpreted, to the historical circumstances. The second is that acceptance that the holder of the office of Official Secretary acting in his official capacity had power to enter into and fulfil the arrangement under which the correspondence was deposited was implicit in acceptance that a subsequent holder of the office of Official Secretary acting in the same official capacity had power, by conveying the decision of Her Majesty, to alter the conditions on which the deposit was made.
123 To the extent that conclusion might be thought to run counter to the expectations of Mr Smith as Official Secretary and of Professor Neale as Director-General of the Australian Archives in entering into the arrangement under which the correspondence was deposited, of Mr Fraser as Prime Minister in suggesting it, and of Sir John Kerr as retiring Governor-General in acquiescing in it, the point to be emphasised is that the conclusion is the product of legislative choices made in the final stages of the parliamentary processes which resulted in the enactment of the Archives Act. The determinative legislative choices were made after the arrangement was entered into and fulfilled.
124 The appeal must be allowed. The orders of the Full Court must be set aside, the appeal to that Court must be allowed, and the orders made at first instance must be set aside. In their place, it should be declared that the deposited correspondence is constituted by Commonwealth records within the meaning of the Archives Act and it should be ordered that a writ of mandamus issue to compel the Director-General to reconsider Professor Hocking's request for access to the deposited correspondence. The Director-General must pay Professor Hocking's costs.
