be part of the archival resources of the Commonwealth under s 3C. Section 27(2) provides that the person responsible for the custody of the record must cause the record to be transferred to the care of the National Archives in accordance with arrangements approved by the National Archives. The record must be transferred "as soon as practicable after the record ceases to be a current Commonwealth record" and in any event within 15 years of it coming into existence: Archives Act, s 27(3). A "current Commonwealth record" is defined to mean a Commonwealth record that is "required to be readily available for the purposes of a Commonwealth institution", other than purposes under the Archives Act. The expression "Commonwealth institution" is defined to capture "an authority of the Commonwealth" which in turn is defined to mean "the holder of a prescribed office under the Commonwealth".
136 General Records Authority No 38 (GRA 38) is a document issued by the Director-General on 25 October 2018, before the High Court delivered judgment in Hocking. Titled "Ministers of State", its two stated purposes are to authorise arrangements for the disposal of records in accordance with s 24(2)(b) of the Archives Act and to determine certain records to be classed as part of the archival resources of the Commonwealth under s 3C.
137 Those two purposes are separately empowered and so must be considered separately.
138 GRA 38 is said on its face to apply to "All core business records relating to Ministerial Office and Portfolio Management". The effect of GRA 38 is to authorise a thing to be done in accordance with an approved practice or procedure with the result that the offence created under s 24(1) does not apply to acts so authorised. The authorisation under GRA 38 is given to "Ministers, former Ministers, and Ministerial offices" as well as "Heads of Commonwealth institutions in possession of Ministerial records". The expression "Ministerial records" is defined in GRA 38 to mean a record received and kept by a Minister or Ministerial office, other than a record that was not made or received in connection with discharging the Minister's responsibilities. However, paragraph 3 excludes from that definition "Cabinet documents". Paragraph 3 of GRA 38 states in part:
This records authority does not apply to Cabinet documents as defined in the Cabinet Handbook of the Commonwealth (as amended from time to time)–except in the case of copies of Cabinet records that have been substantially annotated by the Minister or the Ministerial office. Cabinet documents are Commonwealth records subject to the Archives Act 1983. Cabinet documents must be managed in accordance with the Cabinet Handbook or as directed by the Cabinet Secretariat, and the Archives Act 1983.
