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46.

of the Governor-General" from the Governor-General, whom the Official Secretary and other staff assist in the performance of viceregal duties, para (b) distinguishes "the Executive Council" from the Governor-General, whom the Executive Councillors "advise … in the government of the Commonwealth"[1]; and para (e) distinguishes "a Department" from the Minister of State who administers the Department. In marked contrast, para (c) refers to "the Senate", which includes the Senators; para (d) refers to "the House of Representatives", which includes the Members of the House of Representatives; para (f) refers to "a Federal court", which includes the Chief Justice or Chief Judge and Judges of each federal court; and para (h) refers to "the Administration of an external Territory", which includes the Territory's Administrator. Finally, para (g) refers to "an authority of the Commonwealth", which includes both "an authority, body, tribunal or organization … established for a public purpose" by prescribed means and "the holder of a prescribed office under the Commonwealth".

129 As the plurality's reasons indicate[2], too, the reference to "the property" of the Commonwealth or a Commonwealth institution in the definition of "Commonwealth record" cannot mean a thing owned by the Commonwealth or one of the Commonwealth institutions[3]. Ownership is neither necessary nor sufficient for compliance with the "record-keeping obligations"[4] which the Act attaches to Commonwealth records. As the principal obligation is to cause Commonwealth records to be transferred to the care of the Archives[5], the word "property" must refer to the "legally endorsed concentration of power"[6] that Pollock and Wright termed "possession in law": "the fact of control" over a record

  1. ↑ Constitution, s 62.
  2. ↑ See reasons of Kiefel CJ, Bell, Gageler and Keane JJ at [94].
  3. ↑ cf Shorter Oxford English Dictionary, 6th ed (2007) at 2370, quoted in White v Director of Public Prosecutions (WA) (2011) 243 CLR 478 at 485 [10] per French CJ, Crennan and Bell JJ.
  4. ↑ Archives Act 1983 (Cth), s 2A.
  5. ↑ Archives Act 1983 (Cth), s 27.
  6. ↑ Gray, "Property in Thin Air" (1991) 50 Cambridge Law Journal 252 at 299, quoted in Yanner v Eaton (1999) 201 CLR 351 at 366 [18] per Gleeson CJ, Gaudron, Kirby and Hayne JJ and Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 210 at 230–231 [44] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.
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