27.
arrangement that had been entered into between Professor Neale in his capacity as Director-General of the Australian Archives and Mr Smith in his capacity as Official Secretary in or about November 1977 and to the characterisation for the purpose of Div 3 of Pt V of the correspondence which Mr Smith in his capacity as Official Secretary had deposited with the Australian Archives pursuant to that arrangement on 26 August 1978. The statutory changes were almost certainly unforeseen by either party to the arrangement.
Four issues of construction
70 To address the ultimate question of whether each item of the deposited correspondence is properly characterised as "a record that is the property of the Commonwealth or of a Commonwealth institution" within the meaning of the Archives Act, it is necessary to determine the proper construction of the four principal statutory terms which combine to give that composite expression its relevant content. The four statutory terms are "record", "the Commonwealth" as distinct from "a Commonwealth institution", "the official establishment of the Governor-General" as a Commonwealth institution, and perhaps most importantly, "property".
"record"
71 Two features of the statutory definition of "record" are significant. The first is that a record is an "object" – a tangible thing – which has an existence that is independent of any informational content it may have and that is separate from any copyright in the form of any informational content it may have. In the case of a record that is a document, including a record that is a paper copy of a letter sent or the original of a letter received, the record is the document as a physical thing: the paper on which words are written or copied.
72 The second is that a thing does not become a "record" in virtue of being created or received but in virtue of being "kept by reason of" its informational content or its connection with an event, person or circumstance. To keep a thing for such a reason is to maintain the physical integrity of the thing for that reason. Whether, and if so when, a thing is so kept is an objective question the answer to which must ordinarily turn on the applicable system of record-keeping.
73 For the purposes of the Archives Act, a document created or received is therefore not necessarily a "record". Depending on the applicable system of recordkeeping, working documents such as notes, aide memoires and preliminary drafts might never become records. Originals of correspondence received and copies of correspondence sent will only become records if and when in fact kept by reason of their informational content or connection with an event, person or circumstance.
