72.
The definition of a "Commonwealth record" in s 3(1) of the Archives Act
200 A "Commonwealth record" is defined, with exceptions that can be put to one side, in s 3(1) of the Archives Act as, relevantly, a "record that is the property of the Commonwealth or of a Commonwealth institution". A "record" is defined as "a document, or an object, in any form (including any electronic form) that is, or has been, kept by reason of: (a) any information or matter that it contains or that can be obtained from it; or (b) its connection with any event, person, circumstance or thing". Two aspects of the definition are presently relevant. First, and of considerable importance, a document will only be a record if it is, or has been, "kept" for the relevant reason. Secondly, although records can be electronic, the core concept of a record is concerned with tangibles, namely chattels. This case concerns only chattels.
The meaning of "property" in the Archives Act
The common law meaning of property in relation to chattels
201 The word "property" is not defined in the Archives Act. As all the parties and both courts below rightly assumed, in the absence of any indication in the Archives Act to the contrary it must bear its usual legal meaning. At common law, the word has been used in different senses, applying to both tangibles and intangibles, and common law and equitable rights to things[1]. Its meaning in relation to intangibles is different from its meaning in relation to tangibles. Its meaning in relation to equitable rights is different from its meaning in relation to common law rights. But when dealing with a relationship with tangible things, or chattels, the common law conception of property has been the subject of development and analysis for hundreds of years. It would be very surprising if Parliament had intended to use the concept of "property" in the Archives Act to describe a legal relationship with a chattel according to some unique, undefined meaning, unknowable until it is revealed by creative judicial exegesis. If Parliament had created such a unique meaning it would potentially compete with the common law conception of property rights, violating a numerus clausus principle of a closed number of property rights[2] and creating a potential clash between the statutory regime and co-existing remedies for common law actions for
- ↑ Zhu v Treasurer of New South Wales (2004) 218 CLR 530 at 577 [135]; Kennon v Spry (2008) 238 CLR 366 at 397 [89]. See also McFarlane and Stevens, "The nature of equitable property" (2010) 4 Journal of Equity 1.
- ↑ See also Swadling, "Opening the Numerus Clausus" (2000) 116 Law Quarterly Review 354 at 357.
