spending some time pondering the relief sought in the @palaceletters case that the high court will decide tomorrow. The appellant, Jenny Hocking, a political scientist and biographer seeks the following:

"A writ of mandamus... requiring [the Director General of the National Archives of Australia, or a delegate], to
make and give to the appellant a decision pursuant to sec 40 of the Archives Act 1983 (Cth) on the appellant's request for access to [the palace letters]."

(the palace letters are correspondence between sir John Kerr, as governor general, and the Queen, about Whitlam's dismissal)

The Archives says that it did “not have power or authority to give access...other than in accordance with the instrument of deposit and arrangements specified by the offices of The Queen and the Governor-General”. The case is about whether it does have that authority.

If the high court decides that it does, this isn't the same as the high court deciding that the letters are to be released. That decision remains one for the Archives to make, in accordance with its governing legislation.

Section 31(1) of the Archives Act requires that the Archives "must cause [certain records] to be made available for public access". The ultimate question bearing on whether the Archives will do this to the palace letters is whether they are within that class of records.

For a record to be within that class, it has to satisfy the following criteria. The court case is about whether the record constituted by the letters is a "Commonwealth record" (which is a defined term). It is not about whether any of the other criteria are met.

As to whether the other criteria (a), (b) and (c) are met, (a) and (b) are uncontroversial: the Archives has the letters, and the open access period has begun. But as the decision under appeal makes clear, no decision has been made regarding whether the letters are exempt records

So, one possible outcome is that the high court says the Archives can decide whether to release them, and the Archives then decides they're exempt records, and refuses to release them (followed by internal review, AAT review, federal court appeals, etc).

Might the Archives decide that the letters are an exempt record, and might this be upheld on review? Well, section 33(1)(d) says a record is exempt if it contains "information or matter the disclosure of which under this Act would constitute a breach of confidence".

The letters were marked "personal and confidential", and while the significance of that phrase was the subject of argument, even Bret Walker, as counsel for the appellant, can be seen to concede the confidentiality of the letters.

Note also that the UK versions of the letters are very clearly confidential to the monarch.

So overall I'm not holding my breath that we'll see these letters any time soon. I would love to know if I've gotten any of this wrong though. and if I figure out my guess regarding which way the court will decide, I'll tweet a prediction, and in so doing, secure my embarrassment

Alright, my prediction is: appeal dismissed, probably not unanimous.