Bills

Statutes Amendment (Child Exploitation and Encrypted Material) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 28 November 2018.)

Mr TEAGUE (Heysen) (12:01): I rise to commend the bill to the house. I have listened to the contributions of honourable members in relation to the bill prior to my remarks. I also refer to the Attorney-General's second reading speech in describing the context and how we have come to bring this bill to the house at this time. I want to refer to the context in which this bill has come to the house, particularly in light of the remarks made yesterday by the member for Badcoe.

In indicating that the opposition would be supporting the bill, the member also indicated there might be some reservation in relation to possible amendments along the way. I make the observation that this is not terribly impressive in the context of where this bill has come from. This bill was before the house late in the last parliament—it was a government bill—and has been the subject of some amendment in coming back before the house in the 54^th parliament. Those changes are readily apparent, and it would be helpful if there were some engagement in relation to where we have come in the refinements so that we can move forward together on something that appears to have the support of the house across the board.

I want to make some remarks in relation to the new offences which are being introduced and which will be subject to the Criminal Law Consolidation Act. This is a statutes amendment compendium bill because it will be amending the Summary Offences Act quite substantially through the introduction of new offences relating to the investigative powers of police. That aspect of this compendium bill has been the subject of some controversy. When the 2017 bill went to the other place, remarks were made on the fact that, in introducing the new offences subject to the Criminal Law Consolidation Act, the bill was also introducing these investigative powers, which warranted some special focus; indeed, it does.

The observations I would like to make go to the nature of these new offences. As we know, the bill creates three new offences that are the subject of the Criminal Law Consolidation Act. They will be set out as the subject of a new section 63AB and in subsections (1), (5) and (7). They will create new offences where a person hosts or administers or assists in the hosting or administration of a website and where the website is used by another person to deal with child exploitation material and the person intends that the website be used by another person to deal with such material, or if they are aware that it is being used by another person to deal with child exploitation material. That is a serious new offence that carries a maximum penalty of imprisonment for 10 years.

Similarly, serious new offences are the subject of subsections (5) and (7), respectively. In subsection (5), a person will commit an offence if the person encourages another person to use a website and the person intends that the other person use the website to deal with child exploitation material. In subsection (7), a person will commit an offence if the person provides information to another person and the person intends that the other person use the information for the purposes of avoiding or reducing the likelihood of apprehension for an offence committed by that other person against this division. Unsurprisingly, part 2 of the bill prescribes by clause 4 that those new offences are to be included in schedule 1, part 3 of the Child Sex Offenders Registration Act 2006.

These are the new and serious offences that are introduced into the Criminal Law Consolidation Act as the result of this bill, and they are no different from what was in the 2017 bill. They are the subject matter of the act insofar as it concerns the Criminal Law Consolidation Act. What I want to focus on for a moment is that the bill introduces new offences that are the subject of the Summary Offences Act and investigative powers that are necessary for the police to have in the context of the modern environment in which child exploitation is carried out over the web. I am mindful of the former attorney-general's remarks in relation to the 2017 bill, drawing an analogy to the old physical search warrant's powers and indicating that this is bringing a new, modern form of search warrant power to the police's investigative arsenal.

It is true to say that these new investigative powers and the offences that are the subject of the Summary Offences Act are themselves not limited in their scope and may be read more widely. That was the subject of some discussion and concern. I particularly note the observations of the Hon. Mark Parnell in the other place when the bill was last brought before the house in 2017. So that there is no doubt, so that there is no cause to think, 'Here are these new offences, the subject of a Criminal Law Consolidation Act, and they come with these other powers that are brought along at the same time,' I just want to make clear that, in the nature of this offending, a very important part of it is that if we are to make good on proving these offences, the ones I have just read out, we have to be able to do practical things to obtain the evidence in order to prove the offending.

There is always a lot of sensitivity around circumstances in which powers are exercised to search out evidence. In this case, as I will refer to in a moment—provisions that would require the cooperation of members of the public that may have the result of incriminating them in offending—this is the landscape with which we are dealing. In the contributions of members in the course of the debate, we have heard about all kinds of examples of situations that are found when investigators go about searching out this evidence.

The fact is they need to be able to move quickly. They need to be able to get their hands on computer machinery that may contain critical evidence that may, without the ability to act quickly, be secreted away or destroyed. I want to be very clear about the compendious nature of what this Statutes Amendment (Child Exploitation and Encrypted Material) Bill is doing.

The rubber hits the road, to repeat the analogy, when it comes to the amendments to the Summary Offences Act part of this bill. I refer, firstly, to what will be new section 74BR in a new part 16A, all in relation to access to data held electronically. The amendment will provide for the first time that a magistrate may make an order to provide information or assistance in order to access the data held on a computer. Again, I encourage a focus, by all who are considering this piece of legislation, on the provisions that are the subject of section 74BR.

The provision will have the effect that it will be for the magistrate to determine an application by a police officer or by an investigator—an investigator in the context of ICAC investigation. That is a new part of the 2018 bill. Provisions for the investigator were not the subject the 2017 bill. The magistrate may make an order requiring a person to provide information or assistance that is determined to be reasonable and necessary to allow the police officer or the investigator to do any of a number of things in relation to accessing, examining or otherwise interrogating data that may be held on the computer.

It is a provision that, in relation to the law in general, is exceptional. If one draws the analogy to a civil context, there is an analogy to a mandatory injunction. As is well known, courts are reticent to require parties to any proceeding to take any positive step unless there is very good reason, whether that be by way of mandatory injunction in civil proceedings or a compulsion to cooperate in circumstances where criminal offending may be the outcome of police investigation.

These are stringent provisions with stringent outcomes for those who may be the subject of orders, particularly to cooperate in the course of a police investigation, and so they merit careful consideration. They are brought to this house very much in the context of dealing with what is a very modern scourge on the freedom, particularly of young people, in our community. It is a serious response to what is a modern and very serious problem, particularly in the context of child exploitation online.

The seriousness of that provision is brought home by the new offences that are the subject of the Summary Offences Act, and they are to be found in new sections 74BW and 74BX. There are a number of new offences that are the subject of those new provisions, and they carry severe maximum penalties also. They drive home the importance of requiring a person who is served with an order to comply. The maximum penalty for failure to do so is five years' imprisonment, but it gets even more serious.

The offences that are the subject of new section 74BX relate to the alteration, the concealment or the destruction of data in those circumstances—that is, in circumstances where an order has been made or an order is in prospect and someone takes action so as to destroy what might become evidence. In doing so, that person will be committing an offence and can be penalised by a period of imprisonment of up to five years. Having been served with an order, if the person goes ahead and takes such action, in those circumstances the person, under two new offences that are the subject of new section 74BX(2) and (3), will be liable to a period of imprisonment of up to 10 years.

I cannot underscore any more effectively than that the seriousness of the offences to be introduced into the Criminal Law Consolidation Act, coupled with the requirement to comply and/or cooperate with police investigations of those offences. The combination of the two, carrying the very significant penalties of five years' and 10 years' imprisonment in each case, underscores the seriousness with which this legislation addresses both the identification of the evil that is sought to be eradicated and the practical necessity of getting to grips with securing, and then bringing to bear in evidence in due course, the material that will secure convictions.

There is presently no general power in South Australia in this regard, unlike in Queensland, Victoria, Western Australia and the commonwealth. We are taking this step to make our regime more effective. With those remarks, I commend the bill to the house.

Mr PATTERSON (Morphett) (12:21): I rise today to support the Statutes Amendment (Child Exploitation and Encrypted Material) Bill 2018. This bill seeks 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. The bill is in response to dramatic technological advances and the new ways in which crimes, especially the sexual exploitation and abuse of children, are being committed.

Technological advances are occurring at a rapid rate, often with the law trailing behind, unable to keep up and maintain relevance and accuracy. Websites were the first stage of this sharing of information digitally in mainstream society, beginning in the 1990s. Initially, information was shared through access to a desktop computer and a modem connected to a telephone line, with speeds in the order of tens of kilobits per second. Since then, broadband internet has increased the speeds and therefore the amount of data that can be uploaded and downloaded over the internet. For example, the NBN offers speeds of up to 100 megabits per second.

The next steps in internet access came along with mobile devices, starting with the BlackBerry and the advent of the iPhone. July 2007 saw the first iPhone released in the US, and 11 July 2008 marked the released of the iPhone in Australia. This also coincided with the rollout of 2G, 3G and 4G cellular network technology in Australia, with 4G peak speeds of 100 megabits per second. No longer was high-speed internet access constrained to being physically connected at home or in the office. The iPhone, other smart phones and similar devices have seen an explosion of communication and accessibility tools that are now available to people via social media. These social media and other tools are taken for granted today.

There are often multiple handheld mobile devices used in each household, and these same handheld devices come with in-built cameras for video and photos. Social media has provided an easy and quick way for these images and videos to be uploaded and disseminated onto hosting platforms, which can be shared with groups large or small. At the heart of these websites and social media platforms is the ability for multiple users to quickly set up and share space on a web server or banks of web servers in the cloud to store and make available content, whether it be text, images or videos.

The internet and rapid advances in technology bring obvious benefits for our modern society; however, there is also a dark side. In parallel with the mainstream sharing services is the dark web, which is world wide web content that exists as a small part of the deep web. That is the part of the web that is not indexed by web search engines. These sites still use the internet but require specific software and configurations to access them. These networks also focus on providing anonymous access to the internet.

Not surprisingly, the dark net is also used for illegal activity. A study in December 2014 found that the most commonly hosted type of content on one of these networks, TOR, was child pornography. This abhorrent underworld was exposed to Adelaide with the shocking case of depraved Adelaide man Shannon McCoole, who committed horrendous sex offences against young children in his care and administered an international child pornography website with more than 1,000 members that would share disgusting photos and images of child exploitation material. District Court judge Paul Rice sentenced McCoole to 35 years in prison with a non-parole period of 28 years.

The case highlighted that, while South Australia's existing laws address the possession and distribution of this material, existing offences do not always sufficiently capture the conduct of administering, establishing and operating child exploitation material websites, and this can occur without actual possession of the child exploitation material. Child exploitation material website administrators and those hosting such websites knowingly contribute to the proliferation of child exploitation material online, facilitating and promoting the exchange and distribution of child exploitation material. This is a crime that is not adequately addressed by our current laws and this government.

This government acknowledges the importance of protecting our children and is therefore committed to dealing with those administering or facilitating the use or establishment of child exploitation websites. The bill aims to address that issue, acknowledging that administrators of child exploitation material websites have a profound impact upon the distribution of this material and are not adequately encapsulated in the current South Australian laws.

The Office of the eSafety Commissioner reported that, within the financial year of 2015-16, it received 5,341 complaints regarding offensive material online. This statistic is certainly confronting, particularly as this is only reporting complaints that were made against offensive material. Many might have gone unreported or unnoticed, so this statistic needs not only to be changed but we need to see adequate legal recognition in the criminal laws of South Australia.

The bill before us seeks to introduce offences specifically designed to criminalise the creation, use and promotion of these child exploitation websites. The bill aims to set the penalty at 10 years' imprisonment, mirroring the penalty that applies to most existing aggravated child exploitation offences within South Australia. This is addressed via amendments to the Criminal Law Consolidation Act 1935, with the insertion of section 63AB.

The first offence in section 63AB(1) seeks to address the actions of those creating, administering or maintaining a child exploitation website. These websites are defined to include online forums, groups and social media platforms, covering a wide array of online platforms and programs. This offence is also extended to those who are aware of the child exploitation material on the website and, additionally, to those who intend for it to be used for the proliferation of child exploitation material.

Section 62 of the act is also amended to include in the interpretations the definition of administering a website, which includes building, developing or maintaining the website; moderating contributions to, or content on, the website; managing or regulating membership of, or access to, the website; and monitoring traffic through the website.

In section 63AB, subsections (2) and (3) outline that this will not create an offence for honest website administrators or hosts who do not know that their server or website is being used for these purposes. However, on becoming aware that the website is being used by another person to deal with child exploitation material, they must take reasonable steps to prevent any person from being able to use that website to deal with child exploitation material. Reasonable steps include shutting down the site or notifying a police officer or relevant industry regulatory authority.

To promote or encourage a person to use a website with child exploitation material will also become an offence under section 63AB(5). This offence has been included within the bill to capture those who promote child exploitation material websites, even capturing communication through the use of emoji. Finally, section 63AB(7) creates an offence for providing information that will assist another person to avoid or reduce the likelihood of apprehension for an offence involving child exploitation material. This offence seeks to capture those who facilitate others to use a website containing child exploitation material and assist avoiding detection.

For example, the act of providing information or advice to others about how to use a website anonymously or, alternatively, providing advice about encrypting files containing child exploitation material would constitute an offence. Unfortunately, our police face difficulties in detecting offences as the technology advances and highly sophisticated encryption programs are used by more and more offenders. One of the technological advances that has become more widespread recently is the availability of encryption to the masses for no cost and requiring little technical knowledge by the end user.

Encryption used to be expensive and was the domain of governments, to be used to retain state secrets or for their armies to communicate in secret. As far back as World War I, radio communications were being intercepted by the enemy to detect troop movements, and the more technologically advanced nations were trying to communicate through coded messages. For example, in August 1914, the Russians, at the Battle of Tannenberg against the Germans, did not encrypt their radio signals and so gave away their troop movements and lost 310,000 men in casualties in the process, along with 90,000 prisoners. In World War II, one of the key advantages that the Allies had in the latter stages of the war was cracking the German Enigma code, which was based on electromechanical rotor cipher machines.

Moving forward, when I first started working in defence in the early nineties, one of the projects I was involved in was working on classified software to be used to provide encrypted radio communications for mobile field radios. By 2001, the Advanced Encryption Standard (AES) was developed and was the first publicly accessible royalty-free cipher approved by the United States' National Security Agency for top-secret information. The algorithm is designed to work quickly in both hardware and software applications and uses a symmetric, secret key for both encrypting and decrypting information, with key lengths of 128-bit, 192-bit or 256-bit.

To decrypt encrypted information without knowing the secret key takes what is called a 'brute force attack', where a computer cycles through different permutations of a key. As an example, cracking a 128-bit AES key with state-of-the-art supercomputers would take longer than the presumed age of the universe, making encrypted information impenetrable to modern devices. Potentially, in the future, quantum computers may have the speeds to be able to crack encrypted data via brute force, but this is into the future.

The successful use of the AES by the US government led to widespread use in the private sector, which led to AES becoming the most popular algorithm in use. For example, my company has worked with this technology to encrypt customer information, such as personal details and credit card details. Not only is information being stored at the moment in encrypted format but there are also communications becoming secured via end-to-end encryption, where only the communicating users can read the messages. In principle, this prevents potential eavesdroppers, including law enforcement agencies.

The explosion of shared platforms and smart phones has been accompanied by easy access to encryption. As recently as this month, Apple has advised that its Mac computers that have the Apple T2 security chip can integrate security into both software and hardware to provide encrypted storage capabilities using a hardware accelerated AES machine performed with 256-bit keys. This easy access to encryption is causing significant problems for law enforcement agencies. A well-documented case was in the US where the FBI sought a federal court order to force Apple to unlock the iPhone of a mass shooter. Apple strongly resisted this and other moves, stating that encryption is simply maths and that providing a back door to access one user's phone could be achieved by incorporating a weakness into all phones of users.

Communication apps are also incorporating encrypted communications as standard. As an example, the WhatsApp app that many people use, in fact over a billion users, now has end-to-end encryption. With end-to-end encryption in place, not even WhatsApp employees can read the data that is sent across its network. In other words, WhatsApp has no way of complying with any court order demanding access to contents of any message, phone call, photo or video travelling through its service. That argument is currently playing out in many jurisdictions, including our own federal sphere, as we speak.

The reason for detailing these encryption standards is to demonstrate that the ability to gain access to encrypted data without a key is very problematic and realistically nigh on impossible. The more expedient way to gain access to this data is to obtain the password that has been used to access the device or stored data. SAPOL has asserted that encryption is a significant problem in the investigation of child exploitation material and also other modern crimes, such as terrorism, drug dealing, serious and organised crime, cyber fraud, identity theft and revenge porn.

This bill also aims to address this issue where a procedure will be inserted into the Summary Offences Act 1953 in part 16A—Access to data held electronically—which will give, under section 74BR, a police officer or an ICAC investigator the power to apply to the Magistrates Court for an order requiring a specified person to provide necessary information or assistance to access/examine data held on a data storage device.

For the purposes of this part, data includes information in any form and program or part of a program. Under section 74BN(2), the data held on a data storage device includes data held on remote storage devices such as cloud storage systems that smartphones often connect to in order to expand the storage on these devices. Section 74BN(3) outlines this information or assistance is defined to include the provision of passwords or even retinal scans or fingerprints as methods to gain access to this data. The magistrate may make an order if satisfied that there are reasonable grounds to suspect that data on a data storage device may afford evidence of a serious offence. In fact, section 74BQ specifies that an order is not required if this information or assistance is provided voluntarily.

The bill itself also addresses the need for legal recognition of the danger of remotely erasable data. Quite often, upon being discovered, an accused or even their associate is able to remotely delete any offensive material or data, rendering an investigation pointless. Therefore, included in this bill in section 74BT is a provision whereby a police officer or an investigator can request a magistrate to make an order to preserve data in urgent circumstances to require a person to remain at a particular place or be accompanied to the nearest police station for up to four hours. During this time, the person cannot use or access a computer or other means of electronic communication, other than to obtain legal advice.

Proposed section 74BX also makes it an offence to impede an investigation by interfering with data or deleting it, whether that person is served with an order or if the person attempts to interfere with data held on a device that is subject to an order. Subsection (3) is also designed to address situations where a person purports to provide access to data by providing a means to access it to police, whether voluntarily or in compliance with an order, but instead of providing that access it deletes the data in question. Reflecting the deliberate nature of this conduct, a 10-year maximum penalty applies.

The possession and distribution of child exploitation materials is a heinous crime that this government has addressed in this bill. The bill and the changes it makes to South Australian criminal laws are important and necessary in this digital age. Our laws must keep up with technology; otherwise, it is the people of South Australia who will be exposed to harm. One of the groups that we seek to protect the most is our children.

The provisions of this bill, if made into South Australian law, will be revisited after three years of operation. Proposed section 74BZ provides for the review of the operation and effectiveness of the amendments by a retired judicial officer. This report is required to be presented to both houses of parliament within 12 sitting days of having been received by the relevant minister. This provision ensures that these laws will be revisited to remain up to date with our continuously evolving technology.

This government is committed to protecting our state's children. Whilst the internet and technology make us more efficient and help us to connect to people all over the world, there are dangers which are often difficult to predict, which outdated laws do not address adequately at present. This government is committed to addressing the outdated child protection laws of this state with this bill and also previously with Carly's Law, which was passed earlier this year.

These laws will ensure that children in South Australia are protected from these vile crimes and that any offences are adequately subject to the law and do not escape a conviction and punishment purely due to a legal loophole. I commend the bill to the members of this house. The bill, if successful, will deter those inclined to manage or promote child expectation material websites from committing this heinous act. These are modern laws that a modern society demands.

Mr BASHAM (Finniss) (12:41): I also rise to speak in support of the Statutes Amendment (Child Exploitation and Encrypted Material) Bill. South Australia's existing child exploitation material laws do not adequately capture persons who administer, establish, operate or promote these websites and online networks. Persons could do this without necessarily possessing child pornography.

Police have also identified the increasing difficulties of gaining access to encrypted material. Currently, authorities cannot compel a person to provide their passwords or access to their encrypted materials. Aiding or facilitating the possession of child pornography perpetrates child abuse. The Marshall government is taking necessary action to crack down on anyone involved in this evil industry by ensuring our laws are fit for purpose.

The bill introduces a number of specific offences designed to criminalise the creation, promotion and use of child exploitation material websites. It also introduces new investigative powers and procedures to assist police in the detection of child exploitation material, made increasingly difficult by technological advances and sophisticated encryption programs. Specifically, the bill firstly creates three new offences targeting administrators or hosts of child exploitation material websites and persons assisting in the administration, establishment or operation of these websites. It also looks at the forfeiture of power upon conviction of any offence.

Thirdly, it inserts a procedure into the Summary Offences Act of 1953 where a police officer or an investigator for the ICAC can make an application to the Magistrates Court for an order that requires a person to provide necessary information or assistance. Fourthly, it provides for a modified procedure where an application can be made by telephone to the magistrate in urgent circumstances, particularly in circumstances where the preservation of data may be at risk.

It also creates three additional offences to address concerns around a person impeding an investigation by tampering with data. It imposes recording and reporting requirements on the Commissioner of Police and the ICAC. It also gives broader protections to victims of child exploitation material. The bill requires the police commissioner to provide an annual report to the Attorney-General detailing the number of applications, where they were granted, urgent applications, the types of offences described, a description of devices and the charges laid. It requires the ICAC to provide an annual report to the Attorney-General detailing the same, and it also is providing for a statutory review of the entire bill.

This government sees the bill as an extra tool in the toolkit to investigate and prosecute predators. It is a timely and necessary response to dramatic technological advances and the new ways in which crimes—especially the sexual exploitation and abuse of children—are being committed. The internet and rapid advances in technology bring obvious benefits for modern society; however, there is a dark side to these advances.

The ease and manner in which people can communicate is being used for sophisticated crime purposes. It is critical that criminal law keeps pace with such changes in technology and society and its behaviour, especially new ways of offending. These reforms will help ensure that the law enforcement agencies and the courts have the tools to deal with such criminal behaviour. Child exploitation administrators and those hosting such websites contribute to the proliferation of child exploitation material online, facilitating and promoting the exchange and distribution of child exploitation material.

While South Australia's existing laws address the possession and distribution of these materials, existing offences do not always sufficiently capture the conduct of administrating, establishing and operating child exploitation material websites, which can occur without actual possession of child exploitation material. There is a gap in our current law. Clearly, we need modern laws for modern crimes. The bill introduces specific offences designed to criminalise the creation, promotion and use of child exploitation websites. These offences will carry a maximum penalty of 10 years' imprisonment, which is the same penalty that applies to most existing aggravated South Australian child exploitation material offences.

The first offence in new section 63AB(1) seeks to confront persons who create a website or websites, moderate contributions to it, manage or regulate membership and maintain the website. For example, a person would contravene this section if they monitor traffic through the website and ensure that the server hardware or software is running correctly. The offending extends to those who are aware that the website is being used for child exploitation material in addition to those who intend it to be so used.

New section 63AB(5) creates an offence to promote or encourage another person to use the website that deals with child exploitation material. The word 'encourage' is given a deliberately broad meaning and, according to the bill, 'includes suggest, request, urge, induce and demand'. The offence covers the promotion of child exploitation material websites through advertising and other means. It is envisaged that the term is broad enough to capture modern online traits of display or communication through the use of symbols and emojis.

New section 63A(7) creates an offence for providing information that will assist another person avoid or reduce the 'likelihood of apprehension for an offence' involving child exploitation material. The offence seeks to capture those who facilitate others to use a website containing child exploitation material and assist avoiding detection. For example, the act of providing information to others about how to use a website anonymously or, alternatively, providing advice about encrypting files containing child exploitation material, would be considered an offence.

Proposed section 63D provides an incidental power of forfeiture introduced upon the conviction of any child exploitation material offence. The bill is drafted to ensure there is little impact on legitimate internet servers and website providers, requiring the elements of knowledge and intent, which the legitimate providers will lack. When the knowledge element does not arise, legitimate businesses have policies and procedures in place that will likely bring them squarely within the 'reasonable steps' defence of the new offences.

For consistency with existing similar child exploitation material offences, the bill provides that an offender convicted of the new child exploitation material administrator host offence will be a registered offender and subject to the requirements of the Child Sex Offenders Registration Act 2006. The Commissioner for Victims' Rights and academics have noted the problem of revictimisation—that is, the repeated viewing of child exploitation material, if even for a lawful purpose. The incidental legislation changes will further enhance protection to the victims of child exploitation material offending.

The bill also introduces changes to the Evidence Act 1929 to enhance the protection of victims of child exploitation material. The bill amends section 67H of the Evidence Act 1929 to make it clear that 'sensitive material' includes child exploitation material. This will make explicit the restrictions on the lawful access to such material, including preventing an accused from viewing such material. The bill also amends section 69 of the Evidence Act 1929 to extend the usual requirement in sexual cases to clear a court when child exploitation material evidence is being adduced.

The bill also introduces new investigative powers and procedures to assist police in the detection of offences made increasingly difficult by technological advances and sophisticated encryption programs. The increasing use of encryption programs enables offenders to protect evidence and offending material. SAPOL asserts that this is a significant problem in the investigation of child exploitation material offending, but it extends to many modern crimes, including terrorism, drug dealing, serious and organised crime, cyber fraud, theft, identity theft, revenge porn and cyber-facilitated abuse.

There is no general power in South Australia, unlike in Queensland, Victoria, Western Australia and the commonwealth, to compel the provision of a password or other means of access to encrypted or other restricted-access material. Part 5 of the bill inserts a procedure into the Summary Offences Act 1953 whereby a police officer or an investigator for ICAC can make an application to the Magistrates Court for an order that requires a person to provide necessary information or assistance. This is defined to include the provision of fingerprints and retinal and facial scans.

A magistrate is authorised to make an order if satisfied that there are reasonable grounds to suspect the data in question may afford evidence for a serious offence. The class of persons against whom such an order can be made is prescribed and intended to capture persons likely to have some form of relationship or contact with the offender and/or the device that would give them knowledge to assist. The timing of an application for an order to require access is flexible. It may be either before or after the execution of any search warrant. The bill also addresses concerns around the preservation of data that can be remotely erased upon detection, whether by an accused or an associate.

New section 74BT provides for a modified procedure whereby an application can be made to a magistrate in urgent circumstances—for example, by telephone. Where an order is urgent, a police officer or an ICAC investigator may require a person to attend or remain at a particular location for a maximum of four hours until an order is obtained. During that time, the person may be required not to use or access any form of electronic communication, other than to contact a legal practitioner for the purpose of obtaining legal advice. Paragraph (c) sanctions the arrest and detention of a person for a maximum of four hours upon reasonable suspicion that a person will not comply with such requirements.

Failure to comply with an order made under proposed sections 74BR and 74BT attracts a maximum penalty of five years' imprisonment. New section 74BW(3) provides that, where investigators access data in search of material relating to one offence and find material relating to another possibly unrelated offence, they are entitled to seize and retain the material relating to the other offence and use it in any subsequent proceedings. This reflects the position of general powers of search and seizure at both common law and statute.

There is nothing in the proposed bill to preclude or discourage police during a search asking a suspect or third party to voluntarily provide access to encrypted material. To avoid any doubt, the bill makes this point clear in proposed section 74BQ. The intention of the new procedure to require assistance or information to access protected data, as set out in proposed section 74BR(6), is that it should clearly apply to offences whether committed before or after the act came into effect.

The bill includes provisions for the use of criminal intelligence in applications for an order, and the requirement for the Magistrates Court to protect such confidential material if its public release could reasonably be expected to prejudice criminal proceedings, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or endanger a person's life or physical safety. This is a common provision in situations such as this. The bill does not preclude or discourage any claim of public interest immunity that may also arise.

In support of the application procedure, new section 74BX inserts three additional offences to address concerns around a person impeding an investigation by tampering with data. Subsection (1) provides that a person is guilty of an offence if they alter, conceal or destroy data held on a device that is subject to an order or could reasonably be expected to be evidence. Subsection (2) provides that a person is guilty of an offence if they are served with an order and alter, conceal or destroy the data. I seek leave to continue my remarks.

Sitting suspended from 13:00 to 14:00.