The Librarian of the Parliament of the Commonwealth has forwarded to me for advice the following communication:

The question of disposal of records transferred from State to Commonwealth on the occasion of the transfer of departments has been raised recently and I would appreciate a legal opinion on the matter.

The following are the relevant facts:

1.  The National Library and the Australian War Memorial were constituted provisional archival repositories for Commonwealth departments in 1942 for the purpose of safeguarding Commonwealth records which were of continuing value but which were no longer needed in the transaction of current business.

2.  Section 85(i) of the Constitution Act lays down that when a department of the public service of a State is transferred to the Commonwealth all property of the State of any kind, used exclusively in connexion with the department shall become vested in the Commonwealth; but in the case of the departments controlling customs and excise and bounties, for such time only as the Governor-General in Council may declare to be necessary.

3.  In the case now to be described, despite the constitutional provision, possession of records so transferred is claimed by a State library which has been designated as the State archival repository.

By section 13 of the Navigation Act 1912–35 (gazetted 1921 to take effect on 1st March 1922) the Commonwealth Marine Office assumed shipping functions which had previously been exercised by the State Navigation Department. Included in the records taken over at the transfer in New South Wales were valuable series of Crew and Passenger Lists dating from 1837. These records were transferred from the Mercantile Marine Office, Sydney to the Customs Department, Sydney on various dates between 1923–27. This transfer was effected so that the records would be available in the Customs House for convenient reference when applications for old age pensions are lodged and enquiries are made by the Police and other Departments in connexion with various matters. These uses rendered necessary a period of retention of sixty (60) years.

In 1934 the Mitchell Library Sydney arranged for transfer of all those lists over sixty years old, into its care as State archival repository. During the war with its possible dangers to valuable records, all such lists, including continuations after 1922 were deposited with the Mitchell Library for safe-keeping. When return was requested, the Library suggested that lists prior to 1922 should be retained and that the reference service would be provided there.

This suggestion was apparently based on the supposition that the records in question were State Archives until 1922 at which stage Crew and Passenger Lists, being maintained by a Commonwealth Department, would be Commonwealth Archives.

Customs House, Sydney, has however, referred the matter to the National Library, as it seemed to the officers concerned that, in view of the Prime Minister’s instruction to refer all disposal questions to the Commonwealth Archival Repository, transfer to the Mitchell Library on the original basis was no longer in order.

It is submitted therefore that the records in question for the whole period 1837 to the present day are the property of the Commonwealth Government and that disposal should be made according to Commonwealth archival arrangements.

As this question has arisen in several instances and is likely to do so in the future, a legal opinion is requested, with, if possible, general application to all cases of records transferred with departments from State to Commonwealth.

…

State records may be the property of the Commonwealth either by virtue of section 85 of the Constitution or by virtue of other legal action (whether by statute or agreement or otherwise).

The Crew and Passenger Lists prior to 1922 were ‘transferred (to the Customs Department, Sydney) as part of the stock in trade as it were of the Navigation Department’ (see letter from Premier of New South Wales, dated 5th March, 1935). Whether there was any necessity, in law, for this to be done is not clear in the absence of documents effecting the transfer. But whatever the basis, I think it is clear that these documents did not become vested in the Commonwealth by virtue of section 85(i) of the Constitution which reads as follows:

85. When any department of the public service of a State is transferred to the Commonwealth—

(i)  All property of the State of any kind, used exclusively in connexion with the department, shall become vested in the Commonwealth; but, in the case of the departments controlling customs and excise and bounties, for such time only as the Governor-General in Council may declare to be necessary.

Section 69 reads as follows:

69. On a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth the following departments of the public service in each State shall become transferred to the Commonwealth:

Posts, telegraphs, and telephones:

Naval and military defence:

Lighthouses, lightships, beacons, and buoys:

Quarantine.

But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment.

It is to be observed that although section 69 refers to departments of Customs and of Excise, no specific mention is made of departments administering the laws of States in relation to navigation. It appears that the Navigation and Customs Departments were, immediately prior to Federation, under the control of the Colonial Treasurer, although each Department was a separate agency (See Estimates of Expenditure.)

In my view, the Commonwealth can establish a claim to the records in question only if they are shown to have been the property used by a State department the functions of which were transferred. It is apparent that they were kept by the State Navigation Department up to 1922 when the Commonwealth Mercantile Marine Office was established.

On the information before me, I do not think that the records were the property of a State Department referred to in section 69 of the Constitution. It follows, in consequence, that they did not become vested in the Commonwealth by section 85 of the Constitution.

With regard to the transfer to the Mitchell Library effected in 1935, it appears that, on the assumption that the records in question are the same as those referred to in certain correspondence between the Commonwealth and New South Wales, the transfer was effected with the consent of the Commonwealth Government. On 5th March, 1935, the Premier of New South Wales requested that the matter of certain missing volumes of Harbour Masters’ Reports be taken up with the Customs Authorities with a view to the volumes being returned. In reply, the acting Prime Minister suggested to the Premier that the Mitchell Librarian should approach the Collector of Customs, Sydney, with a view to arranging the transfer to the Mitchell Library of any records no longer required for reference purposes.

Whatever was the assumption underlying this arrangement, I think it clear that the Commonwealth surrendered any property which it may have had in the records the subject of the abovementioned correspondence.

In order, therefore, that the Commonwealth should again have the property in these records vested in it, it would be necessary, in my view, for negotiations to be entered into with the States. There cannot, I think, be any question of compulsion in the matter of the return of the records.

I have been asked to advise generally with regard to all records transferred with departments from the States to the Commonwealth.

Two classes of transfer occur to me. Firstly, a transfer in pursuance of section 69 of the Constitution; and, secondly, a transfer as the result of agreement with the States.

In the case of a transfer under section 69, section 85 operated to vest the property in records in the Commonwealth. There may be cases in which the Commonwealth has since disposed of them. I think it clear that in such a case the Commonwealth has no legal right to require the records to be returned to it.

The position in regard to records of Departments or portion of Departments transferred otherwise than in pursuance of section 69 would depend on the terms of any arrangement with the States. Accordingly before giving my concluded views on the matter, it would be necessary for full particulars to be supplied as to the arrangements made in relation to the transfer of the records.

[Vol. 37, p. 557]