45.
125 NETTLE J. Most of the facts of this matter and the terms of the relevant legislation sufficiently appear from the reasons for judgment of the plurality, and I gratefully adopt their Honours' recitation of them. I respectfully disagree, however, with their Honours' conclusion.
Definition of "Commonwealth record"
126 As the plurality's reasons indicate[1], the Governor-General is not "the Commonwealth" within the meaning of the Archives Act 1983 (Cth). As is apparent from the way that the Act distinguishes between "the Commonwealth" and "a Commonwealth institution", "the Commonwealth" refers to the body politic established under the Constitution[2] or, as it is sometimes described, the Crown in right of the Commonwealth[3].
127 As the plurality's reasons also indicate[4], the Governor-General is not "a Commonwealth institution", because the Governor-General is not part of "the official establishment of the Governor-General". Within the Archives Act, "the official establishment of the Governor-General" refers to the Official Secretary and other staff who assist the Governor-General in the performance of duties of the viceregal office[5].
128 That conclusion is fortified by the way the Act recognises the distinction between persons holding office and organs of government to which their offices relate, in each of the other paragraphs of the definition of "Commonwealth institution". Most notably, just as para (a) distinguishes "the official establishment
- ↑ See reasons of Kiefel CJ, Bell, Gageler and Keane JJ at [77].
- ↑ Constitution, covering cll 3, 4; "A Proclamation", in Commonwealth of Australia Gazette, No 1, 1 January 1901 at 1; Acts Interpretation Act 1901 (Cth), s 2B (definition of "Commonwealth"). See The Commonwealth v Rhind (1966) 119 CLR 584 at 599 per Barwick CJ (McTiernan J agreeing at 600), 603 per Taylor J, 611 per Owen J; The Commonwealth v Western Australia (1999) 196 CLR 392 at 431 [109] per Gummow J; Williams v The Commonwealth (2012) 248 CLR 156 at 185 [22] per French CJ, 237 [154] per Gummow and Bell JJ, 254 [205] per Hayne J.
- ↑ See The Commonwealth v Baume (1905) 2 CLR 405 at 418 per O'Connor J; The Commonwealth v Bogle (1953) 89 CLR 229 at 259 per Fullagar J (Dixon CJ, Webb and Kitto JJ agreeing at 249, 255, 274).
- ↑ See reasons of Kiefel CJ, Bell, Gageler and Keane JJ at [80].
- ↑ See, eg, R v Accrington Youth Court; Ex parte Flood [1998] 1 WLR 156 at 162 per Sedley J; [1998] 2 All ER 313 at 318.
