Americans are outraged over reports that former secretary of state and presidential hopeful Hillary Clinton used her personal email address for official communication, in contravention of United States transparency and records-keeping laws. But why, when there were similar reports this week that Australian politicians were using encrypted messaging apps to communicate, was there no similar outrage?

It was reported on Monday that Communications Minister Malcolm Turnbull and his colleagues were using messaging apps such as Wickr — a platform that allows users to send encrypted, self-destructing messages — to discuss the leadership tensions that continue to plague the government. While Turnbull hasn’t confirmed what was said in the messages, he did tell reporters that he uses both Wickr and WhatsApp to send messages, as text messaging is not a secure form of communication.

Peter Timmins, a lawyer who has worked in the field of freedom of information for 25 years, says it isn’t against Australian law to use apps like Wickr for party political manoeuvring, as ministers are only required by law to keep correspondence relating to their portfolios. “However, I think there has been a question mark for some time about the extent to which unofficial channels are used to communicate on matters that do concern policy decision-making, if you like, the substance of matters concerning departmental responsibilities or ministerial activity, and we haven’t had that surface in Australia yet,” he said.

Timmins says a recent “explosion in the of means of communication available” has highlighted how out of date our freedom of information laws are. Although the current Freedom of Information Act (1982) is broad, it was drafted at a time when most communication was done on paper, although it does include a section that covers “requests involving use of computers etc”.

More recent freedom of information guidelines are much more specific, saying the definition of a “document” under the act “can also include information held on or transmitted between computer servers, backup tapes, mobile phones and mobile computing devices” — and even social media correspondence can be considered a “document”. But encrypted apps such as Wickr and WhatsApp create a whole new headache in government transparency.

Crikey understands that Victorian MPs and senior bureaucrats have recently been warned against using such apps for correspondence about portfolio matters to ensure that they comply with freedom of information and evidentiary requirements. Some MPs were apparently miffed at this advice, believing they should be able to use their phones as they wished.

When Crikey asked the Australian Information Commissioner John McMillan if federal MPs had been advised against using encrypted apps to communicate, he said he hadn’t done so — although that kind of advice would usually come from government archivists, he said. McMillan told Crikey that the commission hadn’t looked closely at apps like Wickr, but most likely would if it continued to exist. McMillan’s role and office was defunded by the government in last year’s budget, and he was supposed to finish up last year. The bill to abolish the role has passed the House of Representatives but has not been introduced to the Senate.

Timmins says there has been no push to amend Australia’s freedom of information laws. “We haven’t seen any great interest in looking at freedom of information, at modernising, enhancing and improving it. [The government] is just taking it backwards not forwards.”

In the meantime, voters would be forgiven for asking what our political representatives are afraid of, if they have nothing to hide.

Peter Fray

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