Are app messages ‘Commonwealth records’? If so, why do Canberra’s elite routinely delete them via Signal and WhatsApp? Andrew Gardiner reports.

Canberra politicians and bureaucrats could be breaking the very law they supposedly strengthened late last year, by auto-deleting app messages transparency advocates say “must be made publicly available”. 

    by Andrew Gardiner

Sources close to government confirm this assault on transparency (via the Signal app) yet it barely raises eyebrows at the upper reaches of Federal Government agencies, and is habitual among MPs from all sides of politics. 

What is Signal? Available on both PCs and phones, its American developers describe it as an app which provides “state-of-the-art end-to-end encryption (to) keep your conversations secure”. 

What they don’t mention, on their homepage at least, is that there’s a setting on Signal which instantly deletes messages after they’re sent. With the motive and now the means to get around pesky public records laws, Canberra officials see Signal is a must-have app. 

“Disappearing messages frustrate regular accountability measures, including FoI requests, court subpoenas and parliamentary orders for production. Any minister or official who sets up disappearing messages on a communication device used to conduct government business is, in effect, commissioning a crime under section 24(1) of the Archives Act of 1983,” former Senator Rex Patrick, a Senate candidate at this year’s federal election, told MWM. 

“It’s as simple and as serious as that”. 

By blithely deleting their sensitive messages, Canberra’s elite show scant regard for both Freedom of Information (FoI) laws and the Archives Act, the latter supposedly bolstered late last year by mandatory standards and guidelines for record keeping.

But are they in for a shock? High Court rulings in 2020 and 2024 confirmed that under the Archives Act, information of some significance to the wider community (ranging from letters between Sir John Kerr and the Queen before Gough Whitlam’s dismissal to location data from a refugee’s ankle bracelet) are Commonwealth records which must be preserved and available to the public. 

If the High Court is indeed the ultimate arbiter of our laws, personal messages from a politician or bureaucrat like “what’s for dinner?” or “who’s your tip for Race 3 at Randwick?” are deletable, but suggestions for a Dorothy Dixer during Question Time, or instructions to a junior staffer on assisting Queensland during Cyclone Alfred, are likely not. 

“Messages that should be archived are instead ‘disappeared’ on Signal as a matter of course if the owner sets them to delete. And that happens all the time,” one insider told MWM. 

Further buttressing the High Court decisions, a 2022 parliamentary inquiry concluded that encrypted messages like those on Signal were Commonwealth records under the Act, and In an estimates brief last year, the Office of the Australian Information Commissioner (OAIC) insisted messages from Signal and other apps “must be filed (so) they can readily be searched and retrieved.” The NAA’s General Records Authority 38 adds some specificity: records to be lodged with and retained at NAA include a Minister’s “communication and liaison with other Ministers and Members of Parliament”. 

Clearly, the latter covers communications over Signal, and could extend to backbenchers and cross-benchers if tested in the courts. Yet no records from encrypted messaging apps have been lodged with the NAA, and messages on Signal continue to vaporise around Canberra at an alarming rate. 

Last November, Australia’s privacy commissioner began her own inquiry into the app’s widespread use by senior politicians and staffers. Patrick said the use of Signal and WhatsApp was “standard practice” in and around Parliament House.

“The use of disappearing messages is a widespread practice. The Information Commissioner should institute random checks on devices and charge ministers and officials accordingly if they’re caught with messages set to be erased,” he told MWM.

The widespread use of apps to thwart transparency reached epidemic proportions five years ago in the UK, where former Prime Minister Boris Johnson was sent super-sensitive “red box” material, including diary updates, via WhatsApp. He and other senior ministers also used Signal to delete messages on their phones, an act later deemed legal in that country. 

Here in Australia we might have more luck. Disappearing messages are yet to be directly challenged in the courts, but if and when they are, there’s every chance the practice will be outlawed if the NAA’s own rules, and the conclusions of parliamentary inquiries, commissioners and the High Court itself are any guide.   

Then it would become a question of catching the perpetrators. Which – like the government’s apparently futile attempt to keep teens off social media – might prove near-impossible. 

NAA’s website spruiks the Canberra archive as promoting “best practice management” of official records, and ensuring historically significant government information is “secured, preserved and available” to all Australians. “Our work strengthens trust in democracy and improves government transparency and accountability by connecting Australians to government decisions and activities,” the blurb adds. 

Of course, when NAA first emerged as an independent agency in 1961, computers were the size of classrooms and disappearing digital messages were the stuff of science fiction. Both the archive (which continues to see some records as “personal” and not for us) along with the laws it helps enforce, are in dire need of an update.

https://michaelwest.com.au/sending-the-wrong-signal-australias-disappearing-political-history

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