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29.

distinct legal personality of the Commonwealth as a body politic has traditionally been expressed as "the Crown in right of the Commonwealth"[1].

76 Sometimes a statutory reference to "the Commonwealth" is more broadly to the central government of the nation understood in accordance with "the conceptions of ordinary life"[2]. In that broader sense, the expression is not confined to the Commonwealth as a body politic but can extend to encompass agencies and instrumentalities of the central government which have their own legal personalities[3]. In that broader sense, it can extend to encompass the holders of constitutional offices of the Commonwealth as a body politic and of statutory offices created by the Commonwealth Parliament in their official capacities[4].

77 The distinction drawn between "the Commonwealth" and a "Commonwealth institution" makes apparent that "the Commonwealth" is used in the Archives Act in the narrower sense to refer only to the Commonwealth as a body politic. That usage is confirmed by the interlocking definitions of "Commonwealth institution", "authority of the Commonwealth", "Commonwealth-controlled association" and "Commonwealth-controlled company", to which extensive reference has been made, the operation of which is to bring within the statutory conception of a "Commonwealth institution" some but not all agencies and instrumentalities of the central government and some but not all holders of constitutional and statutory offices.

78 That usage is also specifically confirmed by the deeming of a record kept by a Royal Commission to be a Commonwealth record only when the record is no longer required for the purposes of the Royal Commission and by the prescription that a record held by or on behalf of the Parliament or a House of the Parliament

  1. ↑ eg The Commonwealth v Rhind (1966) 119 CLR 584 at 599; Jacobsen v Rogers (1995) 182 CLR 572 at 585; The Commonwealth v Western Australia (1999) 196 CLR 392 at 409–411 [31]–[36], 429–431 [105]–[109]; Sue v Hill (1999) 199 CLR 462 at 501 [90].
  2. ↑ Bank of New South Wales v The Commonwealth ("the Bank Nationalisation Case") (1948) 76 CLR 1 at 363.
  3. ↑ eg Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 233; Austral Pacific Group Ltd (In liq) v Airservices Australia (2000) 203 CLR 136 at 142 [10], 143 [14].
  4. ↑ eg Crouch v Commissioner for Railways (Q) (1985) 159 CLR 22 at 36–43.
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