Lawyers fighting for the release of letters to the Queen from the governor-general who dismissed prime minister Gough Whitlam say they're as much a government record as official messages from bureaucrats.
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The High Court received written arguments on Friday rejecting the National Archives' and Attorney-General Christian Porter's case that the letters from Sir John Kerr are not Commonwealth records.
The lawyers for historian Jenny Hocking, pushing for the letters' release, said they were no more personal property than those written to the governor-general by ministers, senior public servants and other officials.
"Documents written by ministers, secretaries, statutory and other senior officers are Commonwealth records because of the law of public office," they said.
"There is no basis to distinguish between property in those documents and documents written by the governor-general."
In the case before the High Court, Professor Hocking's legal team has argued the letters are Commonwealth property because they were written and received by the governor-general for purposes that are at the centre of government.
The Attorney-General and National Archives previously rejected arguments that the letters were Commonwealth records because the governor-general was comparable to a public officer.
They said the role had "two interfaces", one with the Queen and another with the Commonwealth.
"This is reflective of the framers' intention that the governor-general be a 'link' between the Queen and the new body politic created by the constitution," lawyers for the government told the High Court.
Professor Hocking's legal team dismissed the argument in their submission in reply.
"That case proceeds upon the impermissible assumption that the Queen is not herself part of the Commonwealth," the submission read.
"With the governor-general, the Queen forms part, and is at the centre, of the Commonwealth as a polity."
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The joint submission by the Attorney-General and the National Archives referred to Australian governors-general dating to Lord Casey's time in the late 1960s, and their correspondence referring to their "papers" or "personal papers".
"Applying the ordinary law of property, the letters and copies are owned by the governor-general," the submission said.
"They are not 'the property of the Commonwealth or a Commonwealth institution', and therefore are not 'Commonwealth records'."
The Federal Court previously dismissed the case on the grounds the legal arguments before the court did not turn on the public interest in releasing the documents.
Professor Hocking later succeeded in appealing the case to the High Court.