78.
Another example is s 6(1)(c), which is concerned with the power of the Archives to make arrangements relating to the custody of material that forms part of the archival resources of the Commonwealth, a category that, by s 3(2), is not limited to records that are the property of the Commonwealth or of a Commonwealth institution. A further example is s 24(2)(d), which provides that the prohibitions in s 24(1) do not apply to anything done "for the purpose of placing Commonwealth records that are not in the custody of the Commonwealth or of a Commonwealth institution in the custody of the Commonwealth or of a Commonwealth institution that is entitled to custody of the records". That is, this section contemplates that a record can be the "property" of the Commonwealth or of a Commonwealth institution (and therefore a Commonwealth record) without the record being in the custody of the Commonwealth or of a Commonwealth institution.
211 The Archives Act contrasts property and possession in s 3(6) by providing for the power to make regulations, in certain cases, to deem records to be Commonwealth records, and therefore the property of the Commonwealth or of a Commonwealth institution, where the Commonwealth is in possession of the records. In other words, s 3(6) recognises that there will be cases where records will not be the property of the Commonwealth despite the Commonwealth being in physical possession of the records. Another example is s 22(2), which entitles the Commonwealth to "the possession of records kept by a Royal Commission, or by a Commission of inquiry, that are no longer required for the purposes of the Commission". However, since the mere entitlement to possession is insufficient for the records to become the "property" of the Commonwealth, the sub-section also provides that "all such records shall be deemed to be Commonwealth records [and therefore property of the Commonwealth] for the purposes of this Act".
"The Commonwealth or … a Commonwealth institution" in the Archives Act
What is "the Commonwealth"?
212 Rousseau described the "public person … formed by the union of individuals", with individual "members" collectively described as "The People", as a "Body Politic"[1]. Rousseau carefully distinguished "The People", the collective term for membership of the body politic, from the subsets of "Citizens" and "Subjects"[2]. In its primary sense, the body politic of the Commonwealth is such a legal body with membership constituted by the political community of the
