70.
194 The question on this appeal is whether the Commonwealth had a property right to those originals. The legal issue concerns the meaning of the expression "the property of the Commonwealth or of a Commonwealth institution" in the definition of "Commonwealth record" in s 3(1) of the Archives Act 1983 (Cth).
195 If the original documents held in the Archives record AA1984/609 were "the property of the Commonwealth or of a Commonwealth institution" when they were deposited then they are Commonwealth records within s 3(1) of the Archives Act and are within the "open access period" as defined in s 3(7) because 31 years has expired since their creation. Access will then be governed by Div 3 of Pt V of the Archives Act. Any restrictions upon the ability of the appellant to access them will depend upon the application of exemptions to access.
196 On the other hand, if (i) the original documents in record AA1984/609 were not the property of the Commonwealth or of a Commonwealth institution when they were deposited, and (ii) the Archives accepted the care of those records "from a person other than a Commonwealth institution", then access to those documents will be governed by arrangements made with that person, rather than by Div 3 of Pt V of the Archives Act[1]. In this case, the terms of the letter of deposit of the original documents provided for restrictions that "[i]n accordance with The Queen's wishes and Sir John Kerr's instructions, these papers are to remain closed until 60 years after the end of his appointment as Governor-General, ie until after 8 December 2037" and that thereafter their release should only be "after consultation with the Sovereign's Private Secretary of the day and with the Governor-General's Official Secretary of the day".
197 Throughout this litigation, a consistent approach was taken to the meaning of "property" in the definition of "Commonwealth record" in s 3(1) of the Archives Act. That approach was taken in this Court by the appellant, and in the joint submissions of the Director-General of the Archives and the Commonwealth (intervening), together described in these reasons as "the respondent". The same approach was taken by the parties in the Federal Court and the Full Court, and by all judges in those courts. That approach, correctly, was to treat the Archives Act as using the term "property" in its ordinary, common law sense in relation to chattels rather than to create a new, and potentially unique, meaning. As explained below, that long-established sense involves a right to exclude others from the chattel (here, the record) or, by its correlative, it recognises a duty upon others not to interfere physically with the chattel.
198 As to the meaning of the expression "of the Commonwealth or of a Commonwealth institution", this expression is sparsely used in the Archives Act.
- ↑ See Archives Act, ss 6(2), 6(3), 70(3).
