31.
in the regular course of public administration, are to be expected to have responsibility for the keeping of records created or obtained by the holders of constitutional offices in their official capacities.
82 In the case of a Minister, the applicable functional unit is the Department of the Australian Public Service, which corresponds to the Department of State of the Commonwealth administered by that Minister. The Department is comprised of persons engaged or employed under the Public Service Act 1999. Subject to the capacity for direction by the Minister, responsibility for the management of the Department, including responsibility for the management of "property … that is owned or held by the Commonwealth" within the portfolio administered by the Department, is cast by statute on the Secretary of the Department[1]. As the Solicitor-General of the Commonwealth emphasised in argument, a document created or received by a Minister in his or her official capacity can be expected in the regular course of public administration to be delivered into the control of the Department and kept by the Department on a departmental file. That is routinely so for originals of correspondence received and for copies of correspondence sent by the Minister in an official capacity. There will, of course, be exceptions. An email or memorandum embodying a confidential and politically sensitive communication between Ministers on a matter of government business, for example, if it is kept at all, might well be kept solely by one or other of those Ministers or within what has come to be referred to as the "private office"[2] of a Minister.
83 A notable feature of the design of the Archives Act is that ministerial consultants and personal staff engaged or employed under the Members of Parliament (Staff) Act 1984 (Cth) are not within the definition of a "Commonwealth institution". One consequence is that a document that is kept within the private office of a Minister by reason of its informational content or its connection with an event, person or circumstance is not thereby a record that is kept by the Commonwealth or a Commonwealth institution. Another consequence is that a document created or received by a Senator or member of the House of Representatives is not a record that is kept by the Commonwealth or a Commonwealth institution even if the document is kept by reason of its
- ↑ Section 57(2) of the Public Service Act 1999 (Cth) and ss 8 (definitions of "public resources" and "relevant property"), 12 (definition of "accountable authority"), 15 and 16 of the Public Governance, Performance and Accountability Act 2013 (Cth).
- ↑ Ng, Ministerial Advisers in Australia: The Modern Legal Context (2016) at 1–2.
