The Attorney-General has invoked Richard Nixon's fight to retain the presidential papers in a High Court battle over the 'palace letters' linked to former prime minister Gough Whitlam's dismissal.
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The case between the former United States President and the US government was related to papers and audio recordings of his discussions in the White House linked to Watergate scandal.
"It rejected any analogy with the proposition that an employer owns the papers its employees create in the course of employment, and the claim that the papers were held on trust for the American public," the submission argues.
In the case before the High Court, historian Jenny Hocking brought the action against the government and chiefly the National Archives, in an effort to secure the public release of letters between former Governor-General Dr John Kerr and the Queen.
Ms Hocking has argued the correspondence between such figures at the apex of a constitutional monarchy and on such a major political matter as the Prime Minister's dismissal should be seen as public documents.
The joint submission by Attorney-General Christian Porter and the National Archives cites a series of Australian Governors-General dating to Lord Casey's time in the late 1960s, and their correspondence referring to their "papers" or "personal papers".
The Federal Court had previously dismissed the case on the grounds the legal arguments before the court did not turn on the public interest in releasing the documents; before Ms Hocking succeeded in appealing the case to the High Court.
"Applying the ordinary law of propelty, the letters and copies are owned by the Governor-General. They are not "the property of the Commonwealth or a Commonwealth institution", and therefore are not "Commonwealth records", the submission reads.
The Crown's argument also extended to the provisions governing the personal correspondence while holding elected office and the legislative history of the relevant laws and the stated intentions when introducing amendments to emphasise its point such letters were not intended to be captured as public documents.
The case follows Ms Hocking, a prominent political historian, publishing a book in 2015 about the dismissal amid a lengthy fight to obtain the letters through the NAA.
