87.
227 The comprehensive expression thus avoids any debate or dispute about whether the Commonwealth as a body politic holds a property right to documents that are in the custody of Commonwealth institutions or whether the property right is instead held by those institutions. For instance, any real or personal property, other than money, held by the High Court of Australia is deemed to be the property of the Commonwealth[1]. A record held by or on behalf of the Parliament or a House of Parliament is taken to be the property of the Commonwealth[2]. And a record kept by a Royal Commission or Commission of Inquiry which is no longer required for the purposes of the Commission is a record to which the Commonwealth is entitled to possession and is deemed to be a Commonwealth record, and therefore the property of the Commonwealth[3].
228 The official establishment of the Governor-General is not an independent legal person. As I have explained above, the expression distinguishes the Governor-General from the institution that supports them. It therefore distinguishes the Governor-General's private or personal records from official records kept by the official establishment. An assumption underlying the Archives Act is that a property right to institutional records is held by the Commonwealth. In other words, one assumption inherent in the expression "property of the Commonwealth or of a Commonwealth institution" is that a property right to those official records kept by the official establishment of the Governor-General, which is not a legal entity, will be a property right of the Commonwealth as a body politic.
Property rights to the correspondence lodged with the Archives
229 When Mr Smith lodged the documents now forming Archives record AA1984/609, he was acting in his capacity as Official Secretary to the GovernorGeneral, then Sir Zelman Cowen, and doing so on the instructions of the former Governor-General, Sir John Kerr[4]. That record contains correspondence between 15 August 1974 and 5 December 1977, being correspondence between the Queen, by her Private Secretary, and the former Governor-General, Sir John, or his Official Secretary, Mr Smith. The subject matter was described by Sir John, in an extract of his autobiography tendered in evidence at trial, to be part of "the duty …
