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60.

circumstance or thing"[1]. The fact that a document or object exists is not sufficient for it to be a "record". For a document or object to be a "record", it must be kept, or have been kept, for one or both of the stated reasons. Commonwealth record

168 A "Commonwealth record" is, among other things, "a record that is the property of the Commonwealth or of a Commonwealth institution"[2]. There are two limbs to the definition: "property of the Commonwealth" and "property … of a Commonwealth institution"[3]. The definition cannot be read as treating "of the Commonwealth or of a Commonwealth institution" as a compound expression. And describing the expression as "comprehensive" cannot obscure the fact that many of the institutions in the list of Commonwealth institutions are not legal persons.

169 A "Commonwealth institution" is defined to mean one of a list of eight institutions, the first of which is the "official establishment of the Governor-General"[4]. Many of the institutions in the list are not legal persons and are therefore not recognised by law as capable of having legal rights and duties[5]. The inclusion of institutions that are not legal persons in the definition of a "Commonwealth institution" has interlinked consequences.

170 The first consequence is that, like artificial legal persons, the interests of the named institutions can be pursued and protected only by natural persons appointed to act for an institution either generally or specifically[6]. For the official

  1. ↑ Archives Act, s 3(1) definition of "record".
  2. ↑ Archives Act, s 3(1) para (a) of the definition of "Commonwealth record".
  3. ↑ Each reference to the limbs of the definition of "Commonwealth record" in this judgment is a reference to the limbs in para (a) of that definition.
  4. ↑ Archives Act, s 3(1) definition of "Commonwealth institution". See reasons of Kiefel CJ, Bell, Gageler and Keane JJ at [41].
  5. ↑ Paton, A Textbook of Jurisprudence, 4th ed (1972) at 391–395; Dicey, Morris and Collins on the Conflict of Laws, 15th ed (2012), vol 2 at 1528–1529.
  6. ↑ Paton, A Textbook of Jurisprudence, 4th ed (1972) at 394–395.
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