35.
93 Within the definition of "Commonwealth record", "property" obviously connotes a relationship between a record–a tangible thing–on the one hand and either the Commonwealth as a body politic or a Commonwealth institution as a functional unit of government on the other hand. The nature and intensity of the requisite relationship is a question of statutory construction the resolution of which is informed by the statutory context.
94 Despite the focus of those involved in the early stages of the drafting of the Archives Act on the "ownership" of a record, the inclusion within the definition of "Commonwealth institution" of Departments of State of the Commonwealth and of other functional units of government which lack legal personality necessarily means that the connoted relationship cannot be confined to the holding of rights. Much less can it be confined to the holding of rights corresponding to ownership or possession at common law. The relationship connoted can only be understood in terms of a legally endorsed concentration of power. The question becomes as to the nature and intensity of the requisite concentration of power.
95 Purposively construed in the context of the Archives Act, the relationship between a record and either the Commonwealth as a body politic or a Commonwealth institution as a functional unit of government connoted by "property" is best understood as a legally endorsed concentration of power to control the physical custody of the record. The power might arise from a capacity to exercise a common law or statutory right arising from ownership or possession. But it need not so arise. The power might be exclusive. But it need not be.
96 The paradigm of a Department of State of the Commonwealth rather indicates that the concentration of power can arise from a capacity to control the physical custody of the record that is conferred and is exercisable as a matter of management or administration rather than as a matter of the recognition and vindication of rights of ownership or possession at common law. The Archives Act is not concerned to vindicate the incidents of ownership or possession at common law such as the right to destroy or the right to alienate the property. A record which is kept in the control of a Department in the course of the management and administration of the affairs of the Commonwealth is sensibly described as property of the Commonwealth for the purposes of the Archives Act whether or not another person – such as the author of the record – may have a claim to ownership or possession of the record under the general law.
97 The paradigm of a Department of State of the Commonwealth also indicates that the power to control the physical custody of the record need not depend on the capacity to assert any right of ownership or possession at common law given that the Department is not an entity capable of bearing or enforcing legal rights. Nor need the power of control extend to the ultimate power to dispose of the record.
