92.
239 The fact that something is created or received by a public officer in the course of performance of public duties is a powerful indicator that it was created or received for the institution so that the legal entity of the Commonwealth or the Commonwealth institution has a property right in that thing. But documents are commonly created or received in the course of performance of public duties where the creation or receipt is entirely personal and not institutional. Examples are preliminary working papers, personal notes or drafts of a final product created by judges, Ministers, Senators or the Governor-General. As the majority rightly said in the Full Court, if the Commonwealth obtained a property right in the correspondence, thus rendering the correspondence a "Commonwealth record" under s 3(1) of the Archives Act, simply because the officer was performing duties, this would "introduce an administrative provenance definition, when that alternative had been rejected some years earlier"[1].
240 The respondent submitted that the Commonwealth obtains a property right to documents created by the Governor-General when the Governor-General is acting as "an emanation" of the Commonwealth. But the expression "emanation of the Commonwealth" either is too opaque to be meaningful or collapses into an approach based upon agency which the respondent rightly disclaimed as too narrow. The "much criticised"[2] expression, "emanation of the Crown", has similarly been said to convey "no meaning capable of precise significance"[3] and, where it is used, commonly denotes a relationship of agency such that the so-called emanation is acting with actual or apparent authority of the Crown[4]. The issue of whether a document was created or received for an institution that is not a legal entity is not one of agency, although there are similarities.
241 The general principles of property adopted in the Archives Act require consideration of whether the creation of the new thing (the carbon copies of letters, and originals of telegrams, sent) or the receipt of a new thing (the correspondence received), as objectively characterised, (i) was solely for Sir John Kerr personally so that he alone obtained the property right or (ii) was official, being created or received officially and retained for the institution of the official establishment of the Governor-General with a property right held by the body politic of the
- ↑ Hocking v Director-General of the National Archives of Australia (2019) 264 FCR 1 at 18 [86].
- ↑ NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at 149 [163].
- ↑ Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248 at 284.
- ↑ International Railway Co v Niagara Parks Commission [1941] AC 328 at 342–343. See also Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 42 [50].
