36.
The power can be constrained, including by rights of ownership or possession vested in the Commonwealth as a body politic or in another legal person. The exercise of the power can be subject to a power of direction in another–in the case of a Department, most obviously its Minister.
98 That contextual understanding of the statutory reference to "property" furthers the legislative purpose of enabling the Archives to preserve and make publicly available the archival resources of the Commonwealth. It does so by ensuring that the Archives is able to assume the custody of a Commonwealth record of national significance or public interest without needing to concern itself with questions of the ultimate ownership or possessory title.
99 Underlying the legislative scheme is an expectation that a record the physical custody of which is within the lawful power of control of the Commonwealth as a body politic or of a Commonwealth institution as a functional unit of government will in the regular course of administration be kept in the actual physical custody of a Commonwealth institution. Within the Commonwealth institution there will be a "person responsible for the custody of the record". That person will be compelled to transfer the record to the Archives if the record is determined by the Director-General to be part of the archival resources of the Commonwealth. The circumstance that a record is in fact kept in the actual physical custody of a Commonwealth institution lacking in legal personality makes it highly likely that the true owner of the record will be the Commonwealth as a body politic. But the circumstance cannot exclude the possibility that the true owner of the document is some other person.
100 Informed by the experience of the Australian Archives as recounted to the Senate Standing Committee on Education and the Arts by Professor Neale, the legislative contemplation is also that a record the physical custody of which is within the lawful power of control of the Commonwealth or a Commonwealth institution might on occasions in fact be found in the actual physical custody of a person outside a Commonwealth institution. The person might even claim to be its owner. The function conferred by s 5(2)(f) enables the Archives in those circumstances to seek and obtain the physical custody of the record by entering into an arrangement with the person without necessarily resolving the question of ownership. If the record is not a Commonwealth record at the time the Archives obtains custody of it under the arrangement, s 6(2) will ensure that the terms of the arrangement will prevail over the access regime in Div 3 of Pt V. If the record is a Commonwealth record at the time the Archives obtains custody of it under such an arrangement, s 6(3) will ensure that the access regime in Div 3 of Pt V will prevail notwithstanding the terms of the arrangement.
