61.
establishment of the Governor-General, the Official Secretary is such a natural person[1].
Property
171 A second consequence concerns the meaning to be given to "property". "[P]roperty" is not defined in the Archives Act. As Gleeson CJ, Gaudron, Kirby and Hayne JJ said in Yanner v Eaton[2], the concept of "property" may be elusive. The word "property" can refer to something that "belongs to another" but it can also be no more than a description of a legal relationship with a thing; it can refer to "a degree of power that is recognised in law as power permissibly exercised over the thing"[3]. Thus, it "can be, and is, applied to many different kinds of relationship with a subject matter"[4]. It can and often does refer to "a legally endorsed concentration of power over things and resources", or "control over access"[5], which may not derive from legal title.
172 In deciding what is "property … of a Commonwealth institution" (here, the official establishment of the Governor-General), the question is whether "property" is limited to something that belongs to another[6], or whether it extends to records in the custody of the official establishment of the Governor-General – or, to put it another way, records over which the Official Secretary has a legally endorsed concentration of power.
173 "Property" is a core element of both limbs of the definition of "Commonwealth record". It is a common element. In the first limb of the definition of "Commonwealth record" – "a record that is the property of the
- ↑ See Governor-General Act 1974 (Cth), s 6.
- ↑ (1999) 201 CLR 351 at 365–367 [17]–[20]. See also Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 210 at 230–231 [44].
- ↑ Yanner (1999) 201 CLR 351 at 365–366 [17].
- ↑ Yanner (1999) 201 CLR 351 at 366 [19].
- ↑ Gray, "Property in Thin Air" (1991) 50 Cambridge Law Journal 252 at 299, cited in Yanner (1999) 201 CLR 351 at 366 [18].
- ↑ See Pope v Curl'' (1741) 2 Atk 342 at 342 [26 ER 608 at 608]; In re Wheatcroft (1877) 6 Ch D 97 at 98; Earl of Lytton v Devey (1884) 54 LJ Ch 293. cf Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 at 496–497; Yanner (1999) 201 CLR 351 at 365 [17]; JT International SA v The Commonwealth (2012) 250 CLR 1 at 69 [175]. See also Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1913) 23 Yale Law Journal 16 at 21–22.
