Bills

Statutes Amendment (Child Exploitation And Encrypted Material) Bill

Second Reading

Debate resumed.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (17:56): Again, I would like to say thank you to the deputy leader for indicating albeit conditional support for the bill—at this stage, anyway. If, in relation to this matter also, she desires to have a chat with SAPOL about what they regard as being the importance of this, I would be happy to facilitate an opportunity for that to occur.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 10 passed.

Clause 11.

The Hon. J.R. RAU: I move:

Amendment No 1 [AG–1]—

Page 7, after line 33 [clause 11, inserted clause 74BN(1)]—After line 33 insert:

investigator means an investigator under the Independent Commissioner Against Corruption Act 2012;

Amendment No 2 [AG–1]—

Page 8, line 16 [clause 11, inserted clause 74BQ]—After 'officer' insert 'or an investigator,'

Amendment No 3 [AG–1]—

Page 8, line 22 [clause 11, inserted clause 74BR(1)]—After 'police officer' insert 'or an investigator'

Amendment No 4 [AG–1]—

Page 8, line 24 [clause 11, inserted clause 74BR(1)]—After 'police officer' insert 'or an investigator'

Amendment No 5 [AG–1]—

Page 8, line 32 [clause 11, inserted clause 74BR(1)(c)]—After 'police officer' insert 'or investigator'

Amendment No 6 [AG–1]—

Page 10, line 17 [clause 11, inserted clause 74BT(1)]—After 'police officer' insert 'or an investigator'

Amendment No 7 [AG–1]—

Page 10, line 21 [clause 11, inserted clause 74BT(1)]—After 'police officer' insert 'or investigator'

Amendment No 8 [AG–1]—

Page 10, line 25 [clause 11, inserted clause 74BT(1)(a)]—After 'officer' insert 'or investigator'

Amendment No 9 [AG–1]—

Page 10, line 36 [clause 11, inserted clause 74BT(1)(b)]—After 'police officer' insert 'or an investigator'

Amendment No 10 [AG–1]—

Page 10, line 38 [clause 11, inserted clause 74BT(1)(c)]—After 'police officer' insert 'or investigator'

Amendment No 11 [AG–1]—

Page 10, line 40 [clause 11, inserted clause 74BT(1)(c)]—After 'arrest and' insert ', subject to subsection (1a),'

Amendment No 12 [AG–1]—

Page 10, after line 41 [clause 11, inserted clause 74BT]—After inserted clause 74BT(1) insert:

(1a) On arresting a person under subsection (1)(c), an investigator must immediately deliver the person, or cause the person to be delivered, into the custody of a police officer (and the person will, for the purposes of any other law, then be taken to have been apprehended by the police officer without warrant).

Amendment No 13 [AG–1]—

Page 13, after line 11 [clause 11, inserted clause 74BX]—After line 11 insert:

(2) A person who is served with an order under this Part commits an offence if the person, without lawful authority or reasonable excuse—

(a) alters, conceals or destroys data; or

(b) causes another person to alter, conceal or destroy data,

held on a computer or data storage device in respect of which the order was made and in so doing, or in causing the other person to so do, the person intends that, or is recklessly indifferent as to whether, the investigation of the commission of an offence is impeded or prejudiced.

Maximum penalty: Imprisonment for 10 years.

(3) A person who voluntarily provides, or purports to provide, information or assistance of a kind referred to in section 74BR(1) commits an offence if the information or assistance causes data held on a computer or data storage device to be, without lawful authority or reasonable excuse, altered, concealed or destroyed, and in so doing the person intends that, or is recklessly indifferent as to whether, the investigation of the commission of an offence is impeded or prejudiced.

Maximum penalty: Imprisonment for 10 years.

Ms CHAPMAN: I would just ask the Attorney to place on the record the basis for these amendments, and obviously we will consider them between the houses.

Sitting suspended from 17:59 to 19:30.

The Hon. J.R. RAU: I think we were at the point where I was going to talk about a couple of amendments that we had on file just to explain for the record what they were about. Bear with me for a second whilst—

Ms Chapman: I have 13.

The Hon. J.R. RAU: Yes, I am speaking figuratively.

The CHAIR: A baker's dozen.

The Hon. J.R. RAU: It really is a baker's dozen of amendments. The first one is amendment No. 1. The bill provides a means for police to seek an order from a magistrate to compel a suspect or certain third parties to provide information or assistance that will allow access to encrypted or other restricted access material that is reasonably suspected to relate to criminal activities. The effect of this amendment, amendment No. 1, is to extend the availability of the procedure to allow access to encrypted or other restricted access material to investigations under the Independent Commissioner Against Corruption Act. In other words, presently, without this, they would not be able to benefit from these provisions. This has been at the request of the Hon. Bruce Lander QC.

The commissioner advises that his investigations also on occasion are unable to obtain access to encrypted material, and he noted the utility and benefit to the work of the office as a means to acquire encrypted material. He is an investigating agency. He is asking for what the police would get, so that is the explanation for that amendment.

Amendment No. 2 is consequential on amendment No. 1. Amendment No. 3 is also consequential on amendment No. 1. Amendment No. 4 is consequential on amendment No. 1. Amendment No. 5 is consequential on amendment No. 1. Amendment No. 6 is consequential on amendment No. 1. Amendment No. 7 is consequential on amendment No. 1. Amendment No. 8 is consequential, as are amendments Nos 9, 10 and 11. That then brings me to amendment No. 12, which I think we are dealing with as part of our group at the moment.

The CHAIR: Amendments Nos 1 to 13 we are doing. We thought we would do them all together, but we can be talked into doing it differently.

The Hon. J.R. RAU: For something completely different, this is also consequential, but this is to extend the procedure for access to encrypted material in the bill to ICAC. It is designed to clarify the procedure to be followed in an urgent procedure under the bill if an individual has to be arrested pending the seeking of a court order. It requires the ICAC investigator to immediately transfer or cause to be transferred the individual into the custody of a police officer.

In relation to amendment No. 13, the bill includes an offence under the new section 74BW of the Summary Offences Act with a maximum penalty of five years' imprisonment where the subject of an order to compel access fails without reasonable excuse to comply with the order. Modern computer programs are such that an individual could purport to comply with an order and provide his or her password or other means of access, but in reality it would destroy all the encrypted records, being the subject of the order.

The situation of the subject of an order to compel access to encrypted material purporting to comply with the order and providing a means of access that actually deletes the encrypted data in question goes beyond the existing offence in the bill of failing to comply with the court order. The individual is not only failing to comply with the order but is deleting the data and in so doing is in effective contempt of any such order. Any of us who have seen any of the spy movies produced in the last decade would have seen a moment in time when something very much like this has happened.

The existing offence of failing to comply with an order under section 74BW fails to reflect the additional deliberation and gravity of such a course of conduct. The amendment introduces two new additional offences in new section 74BX. These offences have a maximum penalty of 10 years' imprisonment to reflect their gravity. The first additional offence provides that a person who is served with an order under the bill commits an offence if the person without either lawful authority or reasonable excuse alters, conceals or destroys data or causes another person to alter, conceal or destroy data in respect of which the order was made and in so doing, or in causing the other person to so do, the person intends or is recklessly indifferent to whether or not the investigation of the commission of an offence is impeded or prejudiced.

The reference to causing another person to alter, conceal or destroy data covers the situation where, for example, the person gives the police officer a password which the police officer uses and, unbeknown to the police officer, the provision of that password in fact destroys the very material the police officer is seeking to access. The second additional offence is in similar terms and it covers a situation where, for example, no order is obtained because a person voluntarily provides a password that itself has the effect of destroying the data which is the subject of the inquiry.

Ms CHAPMAN: The two extra offences to deal with the wilful destruction of data, etc., were at whose request?

The Hon. J.R. RAU: I am advised that the request came from SAPOL and that we obtained advice from the Crown to ascertain whether or not this might in fact be a problem. The advice we received was, yes, the technology associated with these machines is such that this is a contemporary issue and that whilst we are doing all this we would be prudent to address this matter as well.

Amendments carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (19:39): I move:

That this bill be now read a third time.

Mr KNOLL (Schubert) (19:39): Thank you for the indulgence of the house. I rise to make a brief (in a politician's context) contribution to the third reading of the Statutes Amendment (Child Exploitation and Encrypted Material) Bill merely to point out that this is a very serious matter and one for which there is bipartisan support from both the government and opposition to deal with this issue.

Those who seek to exploit children are wrong and they need to be punished. Anything we can do to strengthen laws in this area is extremely important. This bill does that in a number of ways around creating some new offences for creating, hosting or administering a website, encouraging another person to use a child exploitation material website and providing information to another person when it is intended that the other person will use the information to avoid apprehension for a child exploitation material offence.

Really, I wanted to say that this issue is quite personal for my family and me, having been victims of this in a form. I will not go into any specifics except to say that it does wreak havoc upon a family and upon individuals. Those effects stay around for a long time. We are very much in favour of helping to do anything we can to shut this down to the extent that we can.

We also need to be very mindful of the police and their role in this. I have spoken to a number of police officers about their ability to cope with trawling through this information as it is unlocked. It really does weigh down upon them, and the memories they take with them create lasting and long-term damage and also long-term imprinting upon their psyche.

What I really want to get to in relation to this bill is some comments in the second reading speech around the increasing use of encryption and the fact that technology is moving at such a pace that we need to be able to keep up. It seems that the criminals are always one step ahead and able to use ever-increasing encryption techniques to avoid detection.

The privacy argument is an interesting argument in the broader sphere around whether or not what we are doing here is infringing upon people's right to privacy and their civil liberties. In this case, upon reflection, what we used to talk about was coppers breaking into somebody's house with a warrant and finding their stash of physical pictures or videos or the like. The police could hold the evidence in their hands and see it. We were okay with that, even though, for instance, they were going through a house and managed to see the entire contents of the house whilst going in to search for this material. If they found it, they had the physical evidence and they went away.

What we are seeking to do here is essentially the same in an electronic context. There is no right to privacy that is being breached that would otherwise not have been breached when we searched for physical material. What we are talking about here is electronic rather than physical images. Instead of breaking down the front door, we are talking about unlocking the password. If police have the ability to do that in a physical context, they should have the ability to do that in an electronic context. We need to make sure that the protections are in place so that they only seek and use the material that they are looking for, but again, that would work the same way with a physical search warrant.

For those who suggest that this is a privacy and a civil liberties issue, all we are seeking to do is to deliver the same protections and the same access that would occur in a physical space to the electronic space. I think looking at it in that context shows that this is extremely important legislation. We on this side of the chamber are very happy to support the government in the very tough and difficult work that we have to try to stamp out this gruesome trade in our community.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (19:43): I just wanted to say briefly, because the member for Schubert clearly wished to say things earlier and has quite reasonably taken the opportunity to say something now, that on my behalf the clarity, brevity and rationality of the contribution from the member for Schubert is impressive. I do not want to say anything else; it might wind up on a pamphlet.

Mr Knoll: This is on camera now, too.

The Hon. J.R. RAU: Yes. But I do want to say this: I went through exactly the same thinking process that the member for Schubert has just been through for the parliament, which was initially I did approach this from a civil liberties perspective, and I did ask myself, 'Would I want somebody coming in and intruding into what are my personal affairs?'

Naturally, one has a reluctance for any intrusion into one's personal affairs, and so we should have. However, ultimately I did come to the point where I actually analysed the theme from exactly the same perspective as the member for Schubert, which was to say that, really, the only difference between this and what has been the case for centuries is that this material is actually stored in a digital form rather than a physical form.

Had the material been stored in a physical form, there has for a very long time been an opportunity for the police to come in, enter my property, if necessary break the front door down, rummage through my filing cabinet, empty my drawers, and seize and remove any material which is legitimately offensive material.

If you start from that premise and then you ask yourself, 'Why should I be in a different position if, rather than storing it in my cupboard or in my filing cabinet, I have stored it in the cloud or I have stored it in a device containing a digital memory capacity?' then the answer is obviously: how can you possibly draw that distinction? You cannot. If the offence is actually collecting this material, or storing this material, or holding this material so that you can access the material, why on earth does the mechanism by which you have accessed the material make any difference?

We have actually had a situation where we have had discrimination, perversely, in favour of new-technology criminals because they are smart enough to be trendy in the way that they collect their material. Obviously, that is not okay. I am very pleased to hear the contributions from those opposite, and yes, I did go through the same process the member for Schubert went through. Ultimately, for the reasons he articulated in his remarks, I came to exactly the same conclusion.

Bill read a third time and passed.