47.
"coupled with a legal claim and right to exercise it in one's own name against the world at large"[1].
130 For Commonwealth institutions that have no separate legal personality or collective power over chattels (such as the power to compel production of documents on pain of contempt[2]), possession in law – like any other legally endorsed concentration of power over things – must be exercised by one or more natural persons comprising the Commonwealth institution[3]. To avoid the absurd consequence that every record in the lawful possession of any such natural person is a "Commonwealth record", the references to such Commonwealth institutions must be taken to require that the person lawfully possess the record in his or her capacity as one of the persons comprising the Commonwealth institution.
131 Evidently, then, the definition of "Commonwealth record" is intended to confine the record-keeping obligations in the Act to records in the lawful possession of the Commonwealth or a person or persons comprising a Commonwealth institution in their capacity as such, and thereby to prevent those obligations attaching to records in the lawful possession of office holders and others related to a Commonwealth institution in their personal capacity.
132 The intention so to distinguish records officially possessed by organs of government from records in the personal possession of office holders is also apparent from the legislative history of the Act. As first introduced in 1978, the Archives Bill expressly excluded all records of the present, and any former, Governor-General from the open-access requirements under the proposed Act[4]. Thereafter, the Bill was referred to two committees: the Senate Standing Committee on Constitutional and Legal Affairs ("the Constitutional Committee"); and the Senate Standing Committee on Education and the Arts ("the Education Committee"). Although not accepting the policy of total exemption for a Governor-General's records, the Constitutional Committee acknowledged "the need for special treatment to be given to a few categories of records, such as …
- ↑ Pollock and Wright, An Essay on Possession in the Common Law (1888) at 16.
- ↑ See James v Cowan; In re Botten (1929) 42 CLR 305; Egan v Willis (1998) 195 CLR 424.
- ↑ See Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 256 CLR 171 at 192–193 [52]–[53] per Gageler J.
- ↑ cl 18(1)(a).
