62.
Commonwealth" – "property" may be thought to be limited to, or referring to, something that belongs to another, though it is not necessary to decide that point. The content of the second limb of the definition, however, compels a different conclusion. Where, as here, the relevant Commonwealth institution has no legal personality, the reference to "property … of a Commonwealth institution" (emphasis added) must be read as extending to those records of an institution in the custody of that institution.
174 "Custody" is not limited to physical custody. It may be physical custody but "property" in a record also can, and often does, extend to records over which an institution has a legally endorsed concentration of power absent physical custody – for example, when a document is provided to a third party to hold it as bailee for, or agent of, that institution. And where the document is held by a third party as bailee for, or agent of, that institution, the institution still has custody of – "property" in – the document because it retains a legally endorsed concentration of power over the document. The institution may, subject to the terms on which the document was provided to the third party, call for the return of it. At the same time, the third party may be described as having custody of – "property" in – the document because the third party holds it with a legally endorsed concentration of power, albeit that the source of the power to hold and control the document is different from the institution's because it derives from the institution.
175 Moreover, the construction of what is "property", and thus "property … of a Commonwealth institution", that has been described is not inconsistent with, but is reinforced by, s 24(2)(d) of the Archives Act. Section 24(2)(d) provides that the prohibition in s 24(1) on a person engaging in conduct that results in destruction or other disposal of a Commonwealth record, or transfer of the custody or ownership of a Commonwealth record, or damage to or alteration of a Commonwealth record, does 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". The provision recognises that Commonwealth records may not be in the physical custody of the Commonwealth or of a Commonwealth institution, and that steps may need to be taken to place those Commonwealth records in the physical custody of the Commonwealth or of a Commonwealth institution that is "entitled to custody of the records". What that entitlement is will not be uniform.
