Statutes Amendment (Child Exploitation And Encrypted Material) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 27 September 2017.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:37): I rise to speak as the lead speaker for the opposition on the Statutes Amendment (Child Exploitation and Encrypted Material) Bill 2017. This was a bill introduced by the Attorney-General seeking to amend the Child Sex Offenders Registration Act 2006; the Criminal Law Consolidation Act 1935; the Evidence Act 1929 and the Summary Offences Act 1953.

Again, this is a bill in which we are considering the creation of new offences around the use and establishment of child exploitation material websites and provide powers to the police in dealing with this evidence and compelling a suspect to provide access to computer material relating to criminal activities. This is the current situation in South Australia: our laws deal only with the possession and distribution of child exploitation material and do not deal with those administering or operating such websites and models to facilitate the possession and distribution of this material.

The new offences will be implemented in this bill to create, host or administer a website which is used to deal with child exploitation material. If convicted, a maximum penalty for the offence is up to 10 years' imprisonment. That proposed offence will have a defence if the person can prove that they had taken all reasonable steps to prevent any person from being able to use the website to deal with the child exploitation material.

Other offences relate to encouraging another person to use a child exploitation material website through advertising the website and, further, to provide information to another person when it is intended the other person will use the information to avoid apprehension for a child exploitation material offence. Finally, it will be an offence to refuse to provide encryption information; if convicted, it will attract a maximum penalty of up to five years' imprisonment.

The Prime Minster has made it clear during the year that we need to deal with this question of encryption. No longer do we require people to provide the combination to a safe, a password to a phone or fingerprint access to an area as a common means of entry to recorded material or premises. Encryption is just one more very complicated barrier to getting access to some of this material. It is fair to say that the more sophisticated we get in material which can store information online, in iCloud or some other means by which it may be accessible, there is someone else out there who is smarter and quicker developing a means by which it can be kept secure from the prying eyes of others.

Sometimes, that technology is used by people who want to conceal material that would otherwise result in them being prosecuted and sometimes it is used to communicate with others. It may be an activity that is perfectly legitimate. On the other hand, it may be illegal activity of a prohibited organisation, a terrorist group and the like. It is not uncommon for us to hear of preparations and access to information on what is otherwise known as the dark web because it is so protected by shields of encryption that that would be the only way to access that information.

In this day and age, as the Prime Minister has pointed out, it is necessary for there to be laws to essentially require the mandatory production of the encryption to enable that information to be viewed and/or identified if it relates to a criminal offence. The commonwealth, Western Australia, Queensland and Victoria already have existing legislation but with varying penalties. On the information provided by the Attorney's office, I understand that the commonwealth introduced legislation on 13 September 2017 and that Victoria introduced a similar law back in 2015. Again, consistent with COAG meetings and, in this case, a direct commitment that they will each work to ensure that access is not impeded when there is a lawful search for material, that approach will be followed.

We have a process in this bill where, firstly, SAPOL will be given an opportunity to enable and facilitate their police officers to essentially become members of a child pornography network to enable them to capture the offenders. In fact, just today in the parliament we received our annual report of the Criminal Investigation (Covert Operations) Act 2009. So that members are familiar with this, what happens is that, when the police are undertaking criminal investigations, from time to time they will be undercover and they will need to employ all the options available to them to be able to catch criminals.

From time to time, that includes getting permission to be involved in a covert or undercover operation. As a matter of interest, 38 approvals were given last year according to the report tabled today, so it is not an often-used process and we have a means by which we can keep an eye on the utilisation of this type of thing. Similarly, from time to time in the modern world, police need to be able to, essentially, join up so that they can see what is being promoted and distributed. They can then accumulate the evidence to convict those who are offending.

It is fair to say that South Australia has had a dose of the most unseemly circumstance, I think, of child pornography with the Shannon McCoole case. This involved multiple children who were the victims of literally thousands of images of children that were recorded online. Thanks to the active work of police in Europe, they were able to link Mr McCoole, who was a resident in South Australia, with being part of a group who were trading in this disgusting commodity, and he was caught. The aspect that is quite grotesque about that case is that he was employed in the very department in this government that is supposed to be there to protect children. There, under the very nose of the child protection agency, he was working away, accumulating this material.

With regard to the police and/or the investigative officers who get this material or get this information, I want to commend those who work in this area because it is a pretty tawdry and unhappy type of employment to have to sit there and go through multiple images, sometimes most distressing for the viewer, over a sustained period to be able to collate the evidence. In some cases, they have to go through an extraordinary amount of material just to be able to identify the pieces of evidence that are going to be useful for a prosecution.

It is in many ways a thankless task, and it sometimes can take weeks and months. Certain rules have been established to protect the mental wellbeing of those who have to do this type of employment. They have to take regular breaks and it is important that they do not themselves fall victim to distress as a result of having to do this job. We thank them because it is a task that none of us would want to have to do.

If there is a chance of getting this material more quickly, without having to break codes and everything else or pay expensive investigators to get access to it, that is something that we need to pursue. In that regard, we agree with the Prime Minister. The obligation to provide access, whether it is by any of the old-style passwords, fingerprints or any other access, or whether it is in the new world, needs to be in place to find those responsible for this sort of behaviour.

The Chief Magistrate, I am told, has been consulted, as it will be her court that will be asked to grant orders for the disclosure of barriers to access. She will be the one issuing the order to direct a person or persons to provide information and encryption details. The bill also provides, importantly, the defence of reasonable excuse. This is to be available to ensure that a person, who may have not had access to the full encryption details or had forgotten them, is able to present that evidence and avoid the obligation to comply. In those circumstances, they would not be able to and would therefore be relieved of any obligation.

The drafting of this bill has raised a few concerns. It is a matter with which we will try to assist the government to make sure that we get it right, bearing in mind that other jurisdictions have done it. Victoria in particular has had it for a couple of years, so they have had some experience in implementing this type of legislation, so we are keen to have a look at some of that material. I want to thank in this instance the advisers to the government for providing a briefing about how this is to apply.

There will also be a question about who should be the relevant industry regulator. Victoria has its own eSafety commissioner, so they have a ready-made person to oversee this process. As I understand it, there is a commonwealth eSafety commissioner. I am not sure whether they are called a commissioner, but in any event they have a person who is responsible for doing that. We do not have one. One option is that at COAG there is some agreement to utilise the services of the commonwealth commissioner. I do not know whether that is available or appropriate, but it seems we need to have some kind of process to deal with the mechanics of the operation of this.

At least in this bill, we are pleased to see that the government have gone beyond the ranks of their own personal advisers and consulted with the Chief Magistrate. The Independent Commissioner Against Corruption and Crown law advised on the draft in addition to the DPP. As I indicated before, SAPOL has made a contribution. They are the ones who sought extra powers. Again, we need to be clear about how this will be implemented and whether there needs to be any tightening of the application of this law. We will consider that between the houses, again because this is legislation that was introduced on 27 September and the briefing was only last week, when we were able to at least present it for others to consider, and we are awaiting their consideration.

On the face of it, we say this is legislation that is a necessary expansion of modern regulation to deal, in this case, with the scourge of child exploitation and are persuaded that this is necessary to minimise trauma to the investigative officers. Also, the extraordinary time frame that is required to break the code and to get access to this material is clearly a police resource that is precious enough without having to be wasted. So with the protection of a court order application, we accept that that will be necessary, and the bill will have our support.