“For how long should there be a record of our web browsing? Or of our emails? If we choose to delete our browsing history or emails or tweets or Facebook entries, should they not be deleted everywhere and not just on our own computer?

“As a matter of principle I believe the answer must be yes — if I am lawfully entitled to burn copies of the letters I have written to you and the letters you have sent me in return, why can I not do the same to my emails? If I can throw my diary and my photo album in the bin, why can I not delete my Facebook page?

“Well I can, can’t I?”

Prime Minister Malcolm Turnbull’s comments in his 2012 Alfred Deakin lecture look in stark contrast to the acts of the government he now leads, as the deadline passes for Australian telecommunications companies to begin implementing plans to store all their customers’ communications data for two years for access by law enforcement without a warrant. Turnbull’s own actions have revealed that he is bypassing the data retention scheme by using his own email server and using self-destruction messaging apps like Wickr and Confide, even for his business as a minister. Questions were raised about whether Turnbull might be in breach of the Archives Act, which requires that something considered to be a government record be retained and stored.

But politicians deleting tweets or using self-destructing messaging apps need not worry about breaching Australian laws, according to the National Archives of Australia.

The National Archives of Australia says that records can be anything created by government to document its business, and, as such, the communications of ministers can be considered records if they are in relation to the business of government. After a record is created, according to the act, a person must not “engage in conduct that results in the destruction or disposal of a Commonwealth record”.

There is, however, an important clarification to be made here, as a spokesperson from the National Archives told Crikey: “Messages sent through third-party systems like Wickr, Twitter, Instagram or Facebook  may relate to government business, however [they] would ordinarily be facilitative or transitory in nature. Under the Archives Act, messages that disseminate news, or help an action or a process move forward but are not needed to provide evidence of government activity would not need to be retained.”

In addition to running his own email server to conduct some government business, Turnbull has publicly admitted he is using Wickr and is believed to be using another, more secure app known as Confide. Last week, Turnbull admitted that the very nature of these apps would mean records would not be kept of communications sent over the apps. Turnbull said on Friday, in response to a question from a journalist:

“Well if they’re using Wickr there probably won’t be a record to disclose. Wickr is a very secure, over-the-top application. I’m happy if you want to have a talk about the security of different forms of communication. Firstly you shouldn’t assume that government email services are more secure than private ones. That’s one point to remember. But nonetheless we do have rules relating to them.”

The rules around whether Turnbull’s communications via these apps are required to be retained under the Archives Act are unclear. Is a Wickr message created by a government minister or prime minister related to his or her work in government a Commonwealth record?

The National Archives of Australia does not believe so, telling Crikey that the use of Wickr by government ministers or the prime minister “does not violate the Archives Act“.

Lawyer Peter Timmins told Crikey questions still remained about whether every single message sent through Wickr or other similar apps was “facilitative or transitory in nature”, and whether the ministers sending those messages were making the right judgement call that those messages could then be destroyed.

Peter Fray

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Peter Fray
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