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STATE RECORDS ACT 1998 - SECT 38
Presumption that State records are owned by the State
38 Presumption that State records are owned by the State
(1) In any proceedings for the recovery of possession of a State record by or
on behalf of the State or an agency of the State it is to be presumed that the
record is owned by the State or agency of the State. The presumption is
rebuttable by evidence to the contrary.
(2) The presumption does not apply to
a record created before the commencement of this section unless it is
established that the record was in the ownership of the State or an agency of
the State on some occasion after that commencement.
(3) The presumption is
rebutted if it is established that the person who has possession of the record
(
"the holder" ) obtained possession of the record as a result of the
distribution of the estate of a deceased person, or as a purchaser in good
faith and for value without notice of any defect in title of the person who
transferred the record to the holder or that the person who transferred the
record to the holder had no title to it. This subsection does not limit the
ways in which the presumption can be rebutted.
Note-: The effect of this
presumption is not to make the State the owner of a record when there is
evidence that the State is not the owner. The presumption operates to put the
onus of establishing ownership on the person who is disputing the State’s
claim to the record, ie the State is regarded as the owner until someone
establishes to the contrary. Rebuttal of the presumption does not of itself
mean that the State is not the owner of the record. The State can still
establish ownership of the record in the same way as any person would
establish ownership of property. The fact that a person has obtained
possession of the record as a purchaser in good faith and for value without
notice that the State was the owner of the record, or obtained possession
under a will or intestacy, does not of itself mean that the person is the
owner of the record. Questions of ownership and entitlement to possession of a
State record are to be determined as for any other item of personal property.
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