23.
59 The provenance of the definition of "Commonwealth record" as "a record that is the property of the Commonwealth or of a Commonwealth institution" was examined by the Australian Law Reform Commission in the context of undertaking a review of the Archives Act which it commenced in 1996 and concluded in 1998[1]. The Commission then reported that successive drafts of the Archives Bill in 1975 and 1976 had moved from "a provenance definition through a custodial definition ('a record that is held in official custody on behalf of the government')" to "the present property definition". The Commission noted "[a]necdotal evidence from those involved in drafting the legislation" which indicated that the property definition was preferred for a number of reasons. One was that "ownership was a term which was generally understood and which defined clearly a body of material to which the legislation would apply". Another was that "as owner of the records the Commonwealth already exercised many of the rights (for example, in relation to custody, disposal and public access) proposed to be included in the legislation"[2].
60 Written and oral submissions to the Senate Standing Committee on Education and the Arts by Professor Neale, in his capacity as Director-General of the Australian Archives, shed light on a link between the preference of those involved in the early stages of the drafting of the Archives Bill for a "property definition" of "Commonwealth record" and the preference of those involved in those early stages of drafting for the inclusion of the provisions which came to be enacted as ss 5(2)(f), 6(2) and 70(3).
61 Professor Neale explained that the Archives Bill contained "no clause whatsoever giving the Archives or the Government the right to recover Commonwealth records" and that the drafting intent was that "[t]he Commonwealth's power to recover Commonwealth-owned records" was to remain as it always had been under the general law[3]. Neither the proposed definition of "Commonwealth record" nor the proposal to make provision for categories of records to be deemed to be Commonwealth records was intended to create a new
- ↑ Australian Law Reform Commission, Australia's Federal Record: A review of Archives Act 1983, Report No 85 (1998).
- ↑ Australian Law Reform Commission, Australia's Federal Record: A review of Archives Act 1983, Report No 85 (1998) at 99 [8.13].
- ↑ Australia, Senate, Standing Committee on Education and the Arts (Reference: Archives Bill) 1978–79, Official Hansard Transcript of Evidence (1979) at 20.
