77.
Australian Law Reform Commission explained in its review of the Archives Act, the drafts of what became the Archives Bill 1978 (Cth) evolved from a "provenance definition" to a "custodial definition" before the present property definition was adopted, albeit with recognition of the difficulties for the Commonwealth to prove "ownership" where the Commonwealth sought to recover what it believed to be official records from private custodians[1].
208 The Archives Act provides for mechanisms to compel Commonwealth institutions to transfer to the Archives records that are the property of the Commonwealth[2] but it does not subject individuals to those mechanisms[3]. Apart from Commonwealth institutions, the procedures for recovery of chattels that are Commonwealth property are left to the general law, including actions for detinue or delivery up of chattels. The assumption is that the same notion of a property right is involved under the Archives Act as at common law. As the Director-General of the Australian Archives observed when asked during a committee consideration of a draft Archives Bill'' about the test for identifying a Commonwealth document[4]:
"As the test is a property test it is not determinable under this Bill. Under existing law, it is determinable in the courts and if it ever came to an attempt to acquire a paper the onus would be on the Commonwealth to prove that right."
209 Consistently with the common law conception of property as a right to exclude others, the Archives Act also draws the same distinctions as the common law between (i) property and custody and (ii) property and physical possession without an intention to possess personally.
210 The contrast between "property" and "custody" can be seen throughout the Archives Act. For instance, s 5(2)(f) describes a function of the Archives as being "to seek to obtain … material (including Commonwealth records) not in the custody of a Commonwealth institution". Hence, s 5(2)(f) assumes that a record that is the property of a Commonwealth institution, within the definition of "Commonwealth record" in's 3(1), might not be in the custody of a Commonwealth institution.
- ↑ Australian Law Reform Commission, Australia's Federal Record: A review of Archives Act 1983, Report No 85 (1998) at [8.13]–[8.14].
- ↑ Archives Act, s 27.
- ↑ Australia, Senate, Standing Committee on Education and the Arts (Reference: Archives Bill) 1978–79, Official Hansard Transcript of Evidence (1979) at 45.
- ↑ Australia, Senate, Standing Committee on Education and the Arts (Reference: Archives Bill) 1978–79, Official Hansard Transcript of Evidence (1979) at 47.
