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82.

records in the custody of a Commonwealth institution other than the Archives[1]. Although the Archives has power to enter arrangements to accept care of records from a person other than a Commonwealth institution[2], the Archives Act contemplates the usual circumstance being transfer of a Commonwealth record to the Archives from a Commonwealth institution[3]. Commonwealth institutions are, in general terms, entitled to reasonable access to Commonwealth records that they have transferred[4].

217 The "Commonwealth institutions" about which the Archives Act is concerned are defined. They are the organisations or institutions of government which accord with the conceptions of ordinary life. Some are incorporated. Some are not. The definition of "Commonwealth institution" in s 3(1) provides that they are: "(a) the official establishment of the Governor-General; (b) the Executive Council; (c) the Senate; (d) the House of Representatives; (e) a Department; (f) a Federal court or a court of a Territory other than the Northern Territory or Norfolk Island; (g) an authority of the Commonwealth; or (h) the Administration of an external Territory other than Norfolk Island". An "authority of the Commonwealth" is itself defined in s 3(1), again using the Commonwealth in its conception based upon ordinary life, as generally including, subject to exceptions:

"an authority, body, tribunal or organization, whether incorporated or unincorporated, established for a public purpose" in various ways; "the holder of a prescribed office under the Commonwealth"; and Commonwealth-controlled companies and associations.

218 The enumerated Commonwealth institutions are separate from the holders of offices within those institutions unless the office under the Commonwealth – that is, appointed by the Commonwealth or employed by the Commonwealth[5] – is prescribed[6]. Thus, the institutions of the House of Representatives and the Senate will not automatically include the offices of its members, Senators, or

  1. ↑ Archives Act, s 28.
  2. ↑ Archives Act, s 6(2).
  3. ↑ Archives Act, s 27. See also s 6A(2). And compare the exception in s 6(3) for other transfers.
  4. ↑ Archives Act, s 30.
  5. ↑ Sykes v Cleary (1992) 176 CLR 77 at 95–96; Re Lambie (2018) 263 CLR 601 at 628 [58].
  6. ↑ Archives Act, s 3(1), definition (b) of "authority of the Commonwealth".
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