86.
224 Despite the general focus throughout the Archives Act on Commonwealth institutions rather than on the Commonwealth as a body politic, the expression "of the Commonwealth or of a Commonwealth institution" was intended as a comprehensive expression to cover all of the ways in which property rights to documents that are or were kept by the enumerated institutions of government could be held[1]. The expression is comprehensive in the sense that it is exhaustive of all the ways in which property rights to institutionally kept documents can be held. The use of the conjunction "or", and the repetition of "of", reinforces the comprehensive nature of the expression as comprised of two different parts that exhaust the two different categories of person who might hold the property rights to institutionally kept documents. The comprehensive expression follows the same form as the expression in ss 55 and 90 of the Constitution, "duties of customs or of excise", which is also a "comprehensive expression"[2] which "must be construed as exhausting the categories of taxes on goods"[3].
225 The comprehensive nature of the expression avoids the difficulty that arises where the enumerated institution is not a legal person, because the relevant property rights that would have been held by that institution if it were a legal person will be held by the Commonwealth. For instance, documents administered and kept within a Department of State are generally "property of the Commonwealth" as a body politic. Equally, documents that are administered and kept by an unincorporated body, tribunal or organisation falling within the meaning of an "authority of the Commonwealth" will also generally be "property of the Commonwealth" as a body politic.
226 The comprehensive expression also avoids any debate about whether the relevant property right to a document is held by an institution with independent legal personality or by the Commonwealth as a body politic itself. As the Australian Law Reform Commission observed, "while most Commonwealth property is owned by the Commonwealth as a whole, there are some Commonwealth institutions which own property in their own right"[4]. A simple example is a Commonwealth-controlled company within the definition in s 3(1) of an "authority of the Commonwealth".
- ↑ See also Archives Act, s 36(4)(d).
- ↑ Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 at 600.
- ↑ Ha v New South Wales (1997) 189 CLR 465 at 488, quoting Capital Duplicators Pty Ltd v Australian Capital Territory [No 2] (1993) 178 CLR 561 at 589–590.
- ↑ Australian Law Reform Commission, Australia's Federal Record: A review of Archives Act 1983, Report No 85 (1998) at [8.39].
