Page:Hocking v Director-General of the National Archives of Australia.pdf/34

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28.

Depending again on the applicable system of record-keeping, some correspondence, especially correspondence embodying communications of a routine or transient nature, might not be so kept at all.

"the Commonwealth" and "Commonwealth institution"

74 The term "Commonwealth" in a Commonwealth statute obviously means the "Commonwealth of Australia"[1]. But, of course, "the Commonwealth of Australia" can be used in a Commonwealth statute in different senses, corresponding at least to the several senses in which it is used in the Constitution[2].

75 The definite noun "the Commonwealth", when not used geographically, sometimes refers to the body politic of the Commonwealth of Australia. Together with the bodies politic of each of the States, the body politic of the Commonwealth of Australia was called into existence upon the proclamation of the Constitution. The Commonwealth as a body politic is a distinct legal entity, the legislative, executive and judicial powers of which are conferred and limited by the Constitution. The executive power of the Commonwealth as a body politic includes the power to exercise any right of property vested in the Commonwealth as a body politic. That executive power is formally vested in the Queen and exercisable by the Governor-General and is functionally exercisable by the Executive Government of the Commonwealth within the framework of responsible government established by Ch II of the Constitution[3], subject always to the capacity for statutory control by the Commonwealth Parliament[4]. When referring to the exercise of the executive power of the Commonwealth through the Executive Government of the Commonwealth, and when referring to its statutory control, the

  1. ↑ Section 2B of the Acts Interpretation Act 1901 (Cth), definition of "Commonwealth".
  2. ↑ R v Sharkey (1949) 79 CLR 121 at 153, quoting Moore, The Constitution of The Commonwealth of Australia, 2nd ed (1910) at 73.
  3. ↑ See New South Wales v Bardolph (1934) 52 CLR 455 at 489–490, 501–503, 507–509, 517–519; Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 90–93 [115]–[122].
  4. ↑ Brown v West (1990) 169 CLR 195 at 202.
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