Bills

Statutes Amendment (Child Exploitation and Encrypted Material) Bill

Second Reading

Debate resumed.

Ms STINSON (Badcoe) (17:41): I rise as the lead speaker for the opposition on the Statutes Amendment (Child Exploitation and Encrypted Material) Bill 2018. I indicate that this side of the house will be supporting this bill at this stage. However, we are continuing to consult—that is right, consultation, very important—and we flag that we may, or may not for that matter, have amendments in the other place.

This bill has two distinct aims, two different sections. Firstly, the bill establishes new offences to deal with child exploitation websites, specifically targeting the creation, administration, promotion of child exploitation websites and efforts to advise users on how to avoid detection. Secondly, the bill seeks to provide a means by way of an order for the police to compel a person to provide access to encrypted or protected electronic material that is reasonably suspected by police to be connected with criminal activity. It is worth noting that this second section of the bill is not restricted to child protection material but indeed applies to all indictable offences, and I will come to that second part of the bill later.

The first draft of changes is drawn largely, or even exclusively, from the work of the previous government's statutes amendment child exploitation bill which reached the Legislative Council on 18 October last year. The bill had received broad support and was expected to pass, but time simply got the better of the parliament.

That bill sought to better protect children from those who seek to benefit from their abuse—and that is what it is, it is abuse—by creating new offences targeting those who create or manage websites of child exploitation, promote or encourage others to use them or assist viewers of the material to avoid apprehension with advice on encryption or other tactics.

This bill reflects the rapidly changing technological space in which crime is committed and there are few criminal enterprises that have been aided by technology in recent decades more than the disgusting trade of child exploitation material. While once the consumer of such depraved images would have to take an image, find some way to develop it, print it and distribute it in physical form, the rapid advances in image related technologies and the existence of the internet have enabled this process to be much faster, incredibly more prolific, global and, most disturbingly, anonymous or at least very difficult to detect.

It has always been the case that law enforcement agencies are playing a game of catch-up with the most wily of criminals and, after many years spent examining and reporting on our courts, it has been my observation that those who not only view child exploitation material but create and distribute it are not stupid. They are among the most technologically skilled, organised, careful and calculating criminals. That is how they both execute their crimes and evade detection, sometimes for very long periods of time. They are also among the most security conscious, which brings us to this bill.

The first section of the bill introduces three specific offences to criminalise the creation, promotion and use of child exploitation websites with a penalty of ten years' gaol, consistent with most existing aggravated child exploitation material offences in this state. The first offence in section 63AB(1) seeks to target offenders who create, moderate or manage an offending website, including people who might be tech support of such a site or hold the membership list, not just those who build it and manage it daily. It is also worth noting that those found guilty of this new offence will be registerable offenders and subject to the requirements of the state Child Sex Offenders Registration Act 2006 and, consequentially, the national ANCOR and NCOS schemes as applicable.

New section 63AB(5) creates an offence of promoting or encouraging another person to use a child exploitation website. It is wise to give this word 'encourage' a deliberately broad meaning so as to extend to any form of promotion, whether that is online advertising through an app or chat group or, of course, the old-fashioned way of a one-on-one, direct conversation.

The third new offence in this part of the amendment bill is one of essentially coaching or equipping another person with the knowledge or advice to avoid apprehension or reduce the risk of detection. That advice may be given on the platform itself, separate to it, or in verbal advice. That might include providing information about how to use an offending website anonymously, how to encrypt files of child exploitation material or, indeed, to conceal the personal details of offenders using the site.

I accept the advice of those in the Attorney-General's office that this bill, consistent with the previous incarnation, will have little to no impact on law-abiding internet service providers (ISPs), chiefly because the element of knowledge or intent needs to be made out for the aforementioned new charges. I also appreciate the advice of staff to clarify that these new charges will also interact with division 10 of the Evidence Act, which restricts access to sensitive material during the prosecution process. That division ensures that sensitive material—images of child abuse certainly fall into that definition—are tightly held through the prosecution process so as to avoid retraumatisation of victims and prevent benefit to offenders or suspected offenders.

The proposed section 67H(1)(ab) in this amendment bill expressly incorporates child exploitation material into the definition of 'sensitive material' for the purposes of the Evidence Act, ensuring the restrictions outlined in division 10 apply to such material. I inquired about this and I am concerned to ensure that these restrictions are applied. As a former chair of the Victim Support Service and indeed as a reporter working with victims of crime most days, I am conscious of the great pain caused in the investigation and prosecution process in these cases in terms of revictimisation.

Victims of such heinous offences, whether they know it or not, become victims again each time exploitative material of them is viewed. While it is of course necessary to view material to some extent in order to ensure the process of justice is carried out, it is highly distressing to a victim to know that material of them may be viewed again and again by the offender or offenders, and I am sure anyone can understand that. That is why changes were made to the law in 2008 under the former Speaker, the then attorney-general, Michael Atkinson, to limit the circumstances in which such offending material is viewed by all parties to a prosecution and particularly by offenders.

I am also encouraged by the advice from the Attorney-General's Department and office that the proposed amendment to section 69 of the Evidence Act allows for judges and magistrates to issue an order clearing the court. Indeed, that was part of the previous incarnation of this bill. Currently, I am advised, child exploitation material is not expressly stipulated for the purposes of an order for clearing the court under section 69 of the Evidence Act. This amendment ensures that this will now be an explicit ground for such an order.

All these changes were features of the previous bill and I am glad they remain, as they are important aspects of ensuring our justice system is as respectful of the experiences and ordeals of victims as it possibly can be. In looking at the bill, it is all too easy to see how it can be of great assistance in protecting children.

I covered the shocking and incredibly depraved case of Shannon McCoole as a reporter for both Network Ten and Seven News. As we all know, he was the administrator of a network spanning 45,000 offenders across the world. Some excellent police work overseas, then in Queensland and then here in Adelaide led to his detection, arrest and conviction. But that might have been easier with some of the powers contained in this bill or, indeed, the charges against him may have been more extensive.

Once offenders or would-be offenders realise the powers that police have under this legislation, we can only hope they might think twice about committing such offences. Ultimately, we do not want to just catch these child abusers—and that is what they are; even if they never touch a child, they are still a child abuser—but ensure they are unable to commit these offences in the first place. That is what we should continue to strive for.

The second section of the bill seeks to provide the means for police to compel a suspect or third party to provide information or assistance that will allow access to encrypted or other restricted material that is reasonably suspected to relate to criminal activities. This is in relation to a variety of crimes, not just child abuse and exploitation crimes, though of course it will be very useful, if enacted, in relation to those types of offending. In short, it is the ability for police to compel a person to hand over passwords or encryption keys so they can access evidence.

In this second section there are three new offences contained in proposed section 74BX designed to deter or penalise people who impede or seek to impede an investigation by tampering with data. Subsection (1) outlines the alteration, concealment or destruction of data held on a device which is subject to an order or may be expected to be evidence.

Subsection (2) provides that a person is guilty of an offence if they tamper or instruct another person to tamper with data once an order has been issued. Subsection (3) is designed to address the very serious situation where a person purports to provide access to data to law enforcement agencies, but instead deletes or causes the deletion of the required data—for example, by providing a self-destruct password or the wrong password to trigger the automatic deletion of material. A 10-year penalty applies for such conduct.

There is also a range of other amendments with which I am sure members are familiar in relation to expanding the types of data to include fingerprints, retinal scans and facial scans. I was pleased to hear in the briefing from the department and the Attorney's office that this list is in fact not exhaustive and may also include things like voice and other access-activating data as might be devised in coming years. There is also a provision to replace 'belief' with 'suspicion' in new section 74BT(1)(c), setting a lower bar for police to make out when making a decision to hold a person in custody without a warrant.

The bill also increases to four hours the length of time a person can be held by police or an investigator pending an application for an order. It was two hours under the previous prorogued bill, but I understand this extension of time, this amendment, was requested by SAPOL and conforms with the lengths of time permitted under other similar provisions.

A bill such as this raises very real questions about the extent and application of police powers and privacy considerations. For that reason, I am pleased to see that this bill also includes a requirement for the Commissioner of Police and ICAC to comply with annual recording and reporting obligations, and furnish the Attorney-General with an annual report to be tabled in the parliament. There is also a requirement to review the provisions three years after the commencement of the act.

It is worth noting that there is currently an extensive and, indeed, fascinating worldwide debate, including court cases in the US and other jurisdictions, in relation to compelling tech companies to divulge passwords or encryption keys to law enforcement agencies in order to investigate crime. That is a broad and multifaceted debate and one with very real implications for law enforcement, privacy, accountability, technology and the broader society here in Australia. However, these amendments in the bill are not aimed at compelling tech companies but rather individuals, though I am sure that that is a debate that will continue and maybe visit us here at some point.

I thank the staff of the Attorney-General's Department and the Attorney-General's office for their work on this bill. I thank them for their patient advice and answering all my questions in the briefings. I also commend those staff in the department, and previous ministerial officers, who worked on the earlier incarnation of this bill. Their work has certainly been put to good use in the current bill before us.

I would also like to commend the work of the shadow attorney-general, Kyam Maher, and thank the member for Elizabeth for his contribution to the consideration of the bill. I commend the bill to the house with the caveat that we on this side are continuing to consult and may have amendments in the other place.

Debate adjourned on motion of Mr Pederick.