71.
The focus throughout the Archives Act is upon Commonwealth institutions. It is not upon "the Commonwealth". The phrase "of the Commonwealth or of a Commonwealth institution" is used in the Archives Act only to describe the holding of property rights. It follows the familiar form of a "comprehensive expression"[1]. It is comprehensive in the sense that it is exhaustive of the ways of holding property rights to documents that are, or were, kept by the wide list of enumerated Commonwealth institutions. The comprehensive expression does not obscure the issue concerning how title could be held by a Commonwealth institution without legal personhood. Nor does it obscure issues that would otherwise arise by legislative provisions that deem the property rights of some of those institutions to be held by the Commonwealth as a body politic. Rather, the inclusion in the comprehensive expression of the Commonwealth as a body politic is a direct response to, and a clear resolution of, those issues. The relevant property right will always be held by either the Commonwealth institution or the Commonwealth as a body politic.
199 The primary judge and the majority of the Full Court held, again correctly, that institutionally kept documents that record matters such as the exercise of the executive power of the Commonwealth by the Governor-General are property of the Commonwealth[2]. But the majority of the Full Court, affirming the decision of the primary judge, concluded that the correspondence between the Governor-General and the Queen was "personal" rather than "official"[3]. In dissent in the Full Court, Flick J held that personal and official were not binary categories. A conclusion that the correspondence was personal did not prevent the conclusion, which his Honour reached, that the correspondence was also official[4]. That conclusion, with respect, was correct. For the reasons below, the original documents in the Archives record AA1984/609 were created or received officially, and were kept as institutional documents. They were kept by the "official establishment of the Governor-General" to the exclusion of others. They are the "property of the Commonwealth". No convention existed that requires them to be treated otherwise. The appeal must be allowed.
- ↑ Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 at 600. See Constitution, ss 55, 90.
- ↑ Hocking v Director-General of National Archives of Australia (2018) 255 FCR 1 at 32 [120]; Hocking v Director-General of the National Archives of Australia (2019) 264 FCR 1 at 19 [91].
- ↑ Hocking v Director-General of the National Archives of Australia (2019) 264 FCR 1 at 20 [97].
- ↑ Hocking v Director-General of the National Archives of Australia (2019) 264 FCR 1 at 23 [116], 24 [119].
