37.
101 By whichever of those two methods the Archives obtains custody of a record, the result in terms of ownership is the same. For the Archives to take the record into its physical custody does nothing to affect the ownership of the record or to alter any legal right of property in the record that might be vested in anyone. The Archives, after all, is nothing more than a grouping of officers of the Australian Public Service who act in concert under the supervision of the Director-General within a Department of State of the Commonwealth, which is currently the Attorney-General's Department.
102 The true owner of a Commonwealth record that has been transferred to the Archives from a Commonwealth institution or obtained by the Archives under an arrangement with a person outside a Commonwealth institution might or might not be the Commonwealth as a body politic. If the true owner is not the Commonwealth as a body politic, the true owner might well have a common law cause of action in detinue[1] against the Commonwealth for the recovery of the record from the Archives. If the true owner were to recover physical custody of the record from the Archives, then the record would cease to be in the lawful physical custody of the Attorney-General's Department as a Commonwealth institution. It would at that time cease to be a Commonwealth record, with the consequence that the access regime in Div 3 of Pt V would no longer apply to it. For so long as the record remains in the lawful physical custody of the Archives, however, it remains a Commonwealth record and the access regime in Div 3 of Pt V applies to it irrespective of its true ownership.
Property of the Commonwealth?
103 On the appeal, as at first instance in the Federal Court and in the Full Court, the principal focus of Professor Hocking and of the Director-General has been on attempting to establish the ultimate ownership of the deposited correspondence. There has been no dispute between them that legal title to a physical copy of correspondence that is made before the correspondence is sent ordinarily vests at common law in the creator of the copy at the time of its creation[2] and that legal title to the original of correspondence that is received ordinarily vests at common law in the recipient at the time of its receipt[3]. There has also been no dispute between them that the creator or recipient of each item of the deposited
