Statutes Amendment (Child Exploitation and Encrypted Material) Bill

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 28 February 2019.)

Amendment No. 1:

The Hon. V.A. CHAPMAN: I move:

That the Legislative Council's amendment No. 1 be disagreed to.

The government's motions reject amendments made to the bill in the Legislative Council, propose an alternative amendment and make a consequential amendment to ensure that police have appropriate powers for serious offences beyond child exploitation offences as limited by the Legislative Council.

The CHAIR: Attorney, can I interrupt for a moment. We need to be clear about what we are doing. Are you speaking to amendment No. 1?

The Hon. V.A. CHAPMAN: I thought it had been indicated that the amendments have to be dealt with individually. I assume that we are dealing with amendment No. 1, and I am speaking to the government's position in general.

I am moving that amendment No. 1 be disagreed to. As to all amendments made to the bill in the Legislative Council on this subject, I am proposing an alternative amendment and making a consequential amendment in respect of all amendments presented to ensure that police have appropriate powers for serious offences beyond the child exploitation offences as limited by the Legislative Council. The government's motions do, however, accept those amendments made to the bill in the Legislative Council removing the Independent Commissioner Against Corruption from the bill, and I will refer to those later.

Quite simply, to get to the crux of the issue, the commission of child exploitation offences online, and the existence of online child abuse networks, is of particular concern to the community; indeed, it is to all of us. However, the use of modern technology and encryption programs extends to many other types of modern crime, including terrorism, drug trafficking, revenge porn, cyber-facilitated abuse, cyber fraud and domestic violence. I know that these offences are also horrific crimes and a great concern to the community. Why would we provide police with the powers to investigate child exploitation offences but not terrorism, not drug trafficking, not revenge porn? The list goes on.

The opposition has done a stunning backflip on this legislation, agreeing with the Hon. Mark Parnell in another place that this bill should only deal with one narrow type of offence investigated by the police. As a society generally, we are comfortable with the police breaking into a house with a search warrant and accessing any other physical evidence that they may come across. We are comfortable with the police forcing access to a locked door, safe or drawer regardless of the private contents. This bill allows the police to perform the same search in the electronic context, but this context requires assistance because it has become impossible to break open the data.

While I do not intend to enter into a debate that seeks to rank criminal offences in accordance with the Hon. Mark Parnell's and the opposition's private views about what they consider to be serious offending and what they consider to be trifling, the criminal law and offences comprised do not sit in categories of black or white, simply harmless or harmful, as is implied. They are intricate shades of grey, and the member's opinion on what is considered serious will undoubtedly differ from a sample of opinions taken from the street.

As such, the government proposes consequential amendments in this place to define the scope of serious offending for clarity for the opposition. These offences, to be discussed in more detail through the committee, include:

possession, production and distribution of extremist material;

distribution of invasive images;

trafficking in controlled drugs;

commonwealth terror offences and offences relating to international terror activities;

participation in criminal organisations; and, amongst other things,

offences relating to police powers in dealing with terror offences.

As Attorney-General, I do not feel comfortable seeing a piece of legislation pass that has the opportunity to provide the police with the ability to search serious criminals' computers and password-protected devices, particularly in instances of terror offences, but be passed in a way that does not.

I now turn to a further issue. The shadow attorney-general from the other place was briefed on the bill and sought clarification as to the impact of the bill on parliamentary privilege. This is a matter about which I have spoken to the member for Badcoe, as further information had been sought from the shadow attorney-general. I am pleased to advise the parliament, and for the benefit of the shadow attorney-general in the other place in particular, that matters regarding the impact of the bill on parliamentary privilege are as follows.

This bill does not change or impact the operation of parliamentary privilege. The ordinary criminal law applies within parliament except insofar as acts that would otherwise constitute such offences that relate to the conduct of parliamentary business and consequently fall under the protection of parliamentary privilege. Where the particular conduct within the precincts of parliament by a member of parliament will potentially amount to a criminal offence, it will be subject to any applicable parliamentary privilege—that is, freedom of speech and debate—and will also depend on the facts and the context.

I give an example. Possession of an offensive weapon by a member of parliament for the purposes of tabling or displaying it to members during a debate would attract the privilege. This means, in the context of the bill, that if material subject to the privilege of parliament were located on the member of parliament's computer at Parliament House, then the member of parliament could claim the privilege.

While the ordinary criminal law applies within the precincts of parliament, this does not mean that police would be able to exercise powers to enforce the criminal law within the precincts of parliament. While there is no general rule that a person cannot be arrested within the precincts, the right for police to enter the precincts of parliament is based on the same implied licence that permits the public to enter; that is, it is not unlimited.

It has generally been accepted that police must seek permission before entering the precincts of parliament to carry out searches or criminal investigations. If police do not seek permission, they may be in danger of committing a contempt of parliament. That, of course, would be a matter for this parliament to consider and determine as it sees fit.

In the content of the bill, if a member of parliament is a person who is the subject of an order made under section 74BR, as to be inserted in this bill, then under section 74BS of the application for the order it would have to state the grounds on which SAPOL suspects that any data held on the computer or data storage device is or may be relevant to the offence. If the order then specified the computer or other device, such as a mobile phone, to which SAPOL wanted access that was located in Parliament House, SAPOL would need to seek permission before entering the precincts of parliament to carry out searches or criminal investigations.

Each house of parliament has exclusive control over its own precincts through their presiding officer, the Speaker of the House of Assembly and the President of the Legislative Council. The Speaker and the President jointly exercise control over parts of the precincts that do not fall within the exclusive control of either house. The presiding officer of one of the houses would not be able to exclude a person from an area that is under the joint control of both houses.

The Joint Parliamentary Service Committee of the parliament exercises control over the dining, refreshment and recreation rooms, lounges and garages of Parliament House, not including the front steps. In the absence of the presiding officer, clerks of the houses may have implied authority to exercise those duties or powers relating to the control of the premises. They might be a little careful before they try to exercise that, I might say. In any event, there is a possibility there and we would consider it. The privileges of parliament do not extend to a member of parliament's electoral activities or office.

I hope that information makes it clear to the shadow attorney-general and is a sobering reminder to members of the house, especially new members of the house. It is fair to say, and I place this on the record, that in the time that I have been here, when there have been occasions when the police have sought to enter the premises of this parliament, there has been a respectful meeting with the Speaker and/or the President.

I can think of one occasion when, to the best of my recollection, it was with the Speaker, and that related to a matter pertaining to his own office at the time. It was the Hon. Peter Lewis, now departed both from this place and completely. In any event, there was what was seen as a raid on Parliament House for the purposes of taking possession of material. Documentation was taken and was apparently to be relied upon in relation to a criminal defamation action. So there has been certainly a very prominent circumstance.

However, in my experience the police have understood that they need to consider and follow a process when entering this property for the purposes of undertaking their lawful duties, but which requires respectful treatment of the parliament. Certainly, we have no reason to suggest that they would not do that in the future. It is an important question from the shadow attorney. I hope that further information, as I am advised, is helpful in reminding us that there is no extra or changed position in relation to the parliamentary privilege or restriction on it as a result of this bill. I want that to be absolutely clear.

For the purposes of now moving a set of amendments to provide for the rejection of the singular child offence approach and having a broader approach to the despicable crimes and the capacity for this legislation to operate for them and, secondly, to accept the removal of the ICAC, that is, by omission—it is not in here—I seek to table a second set of amendments to the Legislative Council bill that has come back before us. I indicate that the list of offences that have been referred to by reference to section numbers in the—

The CHAIR: Attorney, sorry to interrupt you, but my understanding is that you do not need to table them; you are able to just distribute them.

The Hon. V.A. CHAPMAN: I am happy to do that. They were filed on 19 March, so I assume they are already here. Accordingly, I invite members to view them for the purposes of accepting a wider application for all the offences that are covered. For the purposes of those, I will quickly read through these in the hope that, before we return to the parliament, it will make it clear.

The CHAIR: Attorney, at the moment we are dealing with amendment No. 1 so we need to stay with that amendment at this point. We can put the question and move onto the next one.

The Hon. V.A. CHAPMAN: I am happy to do that or just do amendment No. 1.

The CHAIR: We can do amendment No. 1 if you want to, yes.

The CHAIR: Are there any questions on amendment No. 1?

Ms STINSON: I would like to speak on it, if that is okay.

The CHAIR: You can speak and then ask a question.

Ms STINSON: I have spoken on the bill at some length when it was before us previously. I think all sides in this place—

The CHAIR: Member for Badcoe, you are speaking on the amendment, not on the bill.

Ms STINSON: I think all sides of this place obviously want to see matters dealing with child exploitation dealt with in a united manner. From reading the message from the Legislative Council, it is clear that they want to make sure that the bill is strengthened, clear and concise. In recent days, this side of the house has received a briefing from the Attorney-General for clarity around the inclusion of other matters outside the scope of child exploitation.

I thank the Attorney-General for the additional information provided to the house this afternoon. I do understand, however, that there are still some matters outstanding. We will continue to receive briefs about the bill and consider the nature and effect of the amendments the Attorney has put before us. We look forward to further information from the government in order to deal with the bill. In the meantime, we reserve our position when the bill goes to the other place.

The CHAIR: It has already come back from the other place, member for Badcoe.

Ms STINSON: No, when it goes back.

The CHAIR: The member for Badcoe has made a speech. Did you have a question in relation to this?

Ms STINSON: No.

The Hon. V.A. CHAPMAN: In response to the extra information sought, in addition to parliamentary privilege, I will place this clearly on the record. In the other place, there was a request to identify some real-life examples of certain offences; that is, the offence against section 44 and section 44A of the Summary Offences Act, and sections 86E, F, G, H and I of the of the Criminal Law Consolidation Act.

I will just quickly explain what those are. Sections 44 and 44A are offences in respect of property, that is the unlawful operation of a computer system or the unauthorised impairment of data held on a credit card, a computer disk or other device. In relation to the offences under the Criminal Law Consolidation Act from section 86E on, as I have indicated, these are computer offences and they relate to:

the use of computer with intent to commit or facilitate the commission of an offence;

the use of a computer to commit or facilitate the commission of an offence outside the state;

unauthorised modification of computer data;

unauthorised impairment of electronic communication; and

possession of computer viruses, etc., with intent to commit serious computer offences.

I am not sure how much information has been supplied in relation to those matters, but the Attorney-General's Department does not have any particulars of that. A further request has been put in to SAPOL as to whether they have any examples of this from the Magistrates Court or Youth Court and we are awaiting that information. Certainly, that will be conveyed to the shadow attorney-general as soon as it is made available.

Progress reported; committee to sit again.

At 17:54 the house adjourned until Tuesday 2 April 2019 at 11:00.