Statutes Amendment (Child Exploitation And Encrypted Material) Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (22:00): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

The Statutes Amendment (Child Exploitation and Encrypted Material) Bill 2017 amends 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 will establish new offences to deal with administering or facilitating the use or establishment of child exploitation material (CEM) websites and provide a means for the police or the Independent Commissioner against Corruption to compel a suspect or certain third parties to provide information or assistance that will allow access to encrypted or other restricted access computer material that is reasonably suspected to relate to criminal activities.

The Bill 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 also a dark side to these advances. The ease with which people can communicate, which has made the world so interconnected, can also be used for sophisticated criminal purposes, and unfortunately is often used in that way. Child sexual offenders have taken particular advantage of the advances in modern communication and technology to ply their illicit and abhorrent trade and build sophisticated criminal networks, often protected by encrypted software.

It is crucial that the 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 law enforcement agencies and the courts have the tools to deal with those who do not abide by the standards that are rightly expected in modern society.

CEM website administrators and those hosting such websites contribute to the proliferation of CEM online and facilitate and promote the exchange and distribution of CEM (often of the most depraved nature) and also encourage contact sexual offending of children by others. 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 CEM websites—which can occur without actual possession of the CEM. There is a gap in the current law.

The Bill introduces specific offences designed to criminalise the creation, promotion and use of CEM websites. The new offences draw on the model introduced by Victoria in the Crimes Amendment (Child Pornography and Other Matters) Act 2015. The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill was introduced to the Commonwealth Parliament on 13 September 2017 and this introduces a similar new offence. The new State and Commonwealth offences are intended to be complementary in this important area.

The new State offences will carry a maximum penalty of ten years imprisonment, which is the same penalty that applies to most existing aggravated South Australian CEM offences.

The increasing use of encryption, and other means of hiding offending behaviour online is striking. Offenders are increasingly making use of such means to protect electronically-held material relating to not just CEM but also many other types of crime. Police are increasingly unable to again access to incriminating encrypted material. SAPOL notes that this problem arises especially to the investigation of CEM offending but extends to many modern crimes, including terrorism, drug dealing, serious and organised crime, cyber fraud, theft, identity theft, revenge porn and cyber facilitated abuse. The modern encryption programs, despite the world of Hollywood, are virtually immune to 'breaking' by law enforcement agencies.

The Bill addresses the omission in current South Australian police powers as there is no general power in South Australia, unlike 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. The Bill draws on these models to provide a means for the police or the Independent Commissioner against Corruption to compel a suspect or certain third parties to provide information or assistance (such as password/s or fingerprint) to access the encrypted or restricted access computer material. The power to compel a suspect or third party to provide access to encrypted material is provided to a Magistrate in light of the sensitivity of the power.

While the notion of compelled access to protected computer or online material may be perceived by some as intruding on important considerations of privacy and confidentiality, it is a necessary measure to support the investigation and prosecution of CEM offending and other modern crime. The digital castle cannot be impregnable.

Online CEM Offence

Both SAPOL and researchers note that child sexual offenders have taken particular advantage of the recent advances in modern communication and technology to ply their abhorrent and illicit trade and build criminal networks.

While there are a number of ways in which CEM can be viewed and exchanged, both research and SAPOL experience shows that websites are the easiest and most visible way of accessing CEM. These websites promote and encourage the distribution of CEM images (often of the most degraded nature) and the sexual exploitation and actual abuse of children. CEM website administrators and those providing hosting services thus contribute to the proliferation and distribution of this material online and encourage contact sexual offending by others. The Bill seeks to discourage the creation, promotion and the use of such abhorrent websites and targets those who administer, establish, operate or provide hosting services to them.

While South Australia's existing laws address the possession and distribution of CEM, existing offences do not always sufficiently capture the conduct of administering, establishing and operating CEM websites and online networks—which can occur without actual possession of the CEM. SAPOL have identified at least one actual case where the person hosting or the administrator of such a website, having the intention of facilitating the dissemination of CEM material, would not fall within existing local criminal laws.

The Bill introduces three specific offences designed to criminalise the creation, promotion and use of CEM websites. The new offences are designed to address the administration and use of websites dealing in CEM without intruding upon legitimate internet service and website providers. The new offences draw on the model introduced by Victoria in the Crimes Amendment (Child Pornography and Other Matters) Act 2015.

The new State offences are designed to complement and support the new similar offence in Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill introduced to the Commonwealth Parliament on 13 September 2017.

The new State offences will carry a maximum penalty of ten years imprisonment, which is the same penalty that applies to most existing South Australian aggravated CEM offences. This is also consistent with the Victorian offences.

The first new offence in the proposed s 63AB(1) of the Criminal Law Consolidation Act 1935 targets administrators and those hosting CEM websites or assisting in the administration or hosting. This could cover those who create the websites, moderate contributions to it, manage or regulate membership of a website for viewing or sharing CEM or maintaining the website. Another example is where a person monitors traffic through a website and ensures that the web server hardware and software is running correctly, being aware, or intending that the website be used by other persons to download CEM.

The first offence applies only to persons who either intend that a website they are hosting or administering be used for dealing with CEM or those who are aware that the website is being so used and take no reasonable steps to prevent the use of the website for dealing in CEM.

The term 'administering a website' is given an inclusive meaning as reflects modern technology and online offending. The Bill includes provision to allow activity or function of a kind prescribed by Regulation to be added or excluded as falling within the administration of a website. It is important given the rapid changes in technology and means of online offending that the new offence has the flexibility to capture new forms of online offending or to exclude situations which should be excluded.

'Hosting' is defined in the Bill as providing storage space or other resources on a server for the website. This fairly limited definition of hosting is intended to capture those providing services directly to the offending websites, and avoid capturing service providers further removed that may not have the direct ability or fine-grained control to prevent the website being used to disseminate CEM material. The Bill includes provision to allow activity or function of a kind prescribed by Regulation to be added or excluded as falling within the definition of the hosting of a website. It is important given the rapid changes in technology and means of online offending that the new offence has the flexibility to capture new forms of online offending or to exclude situations which should be excluded.

The Bill includes, as in Victoria, provision for a relevant industry authority such as the E Safety Commissioner to be added by Regulation.

The term 'website' has been given an inclusive definition to include online forums, groups and other social media platforms in recognition of the fact that some of these online platforms are capable of being used for dissemination of CEM and may utilise hosting services and administrators, with the relevant knowledge and control to commit the associated offences.

'Dealing with' is given a wide meaning as reflects modern technology and online offending and includes viewing, uploading, downloading or streaming child exploitation material or making such material available for viewing, uploading, downloading or streaming.

To ensure that the first new offence does not criminalise website administrators or those hosting a website in good faith, a defence applies if upon becoming aware that the website is being used for CEM they take all reasonable steps to prevent access to the offending material. This may include notifying police or a relevant industry regulatory authority or taking down the offending website. This new offence will also not apply to websites being used for a legitimate purpose, such as law enforcement by SAPOL.

The Bill introduces a second new offence in the proposed s 63AB(5) to further disrupt the operation of CEM websites by making it an offence to encourage another person to use a CEM website and the person intends the other person to use the website to deal with CEM. The Bill defines 'encourage' as including 'suggest, request, urge, induce and demand'. This offence, for example, covers those who promote others to use a website to deal with CEM through advertising the website. The term 'encourage' could also cover, depending on all the circumstances, the modern online trait of display or communication through the use of symbols or emoji.

It will not be necessary to show that a particular person was actually encouraged by the person or the identity of the party encouraged to use the website to deal with CEM. The Bill draws specifically upon the comparable Victorian offence.

The third offence in the proposed s 63AB(7) provides it is an offence to provide information to another person and it is intended that the other person will use that information to avoid or reduce the likelihood of apprehension for a CEM offence. This offence addresses the conduct of those who intentionally facilitate others to use a website to deal with CEM, for example by providing advice to others about how to use a CEM website anonymously or how to encrypt files containing CEM.

The new offences are not dependent upon an offender's age.

The Bill includes an incidental power of forfeiture upon conviction for a CEM offence if a computer, similar device or indeed any item was used to commit or facilitate the commission of a CEM offence. A court making an order for forfeiture of any equipment, device or other item may, if it thinks fit, allow the offender or any other person an opportunity to recover (in accordance with any directions of the court) specified records, or other material not involved in the commission of the offence from the device before it is so forfeited.

Compelled access to encrypted computer records

Offenders are increasingly making use of readily available and sophisticated computer encryption programs to protect illegal material held, or transmitted online or on a computer or device, in relation to not only CEM offending but also evidence of terrorism, organised crime and many other forms of modern offending.

There is no general power in South Australia, unlike 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. Police are increasingly unable to gain access to incriminating encrypted or restricted access material relating to many crimes. Modern encryption programs are very difficult, if not impossible, to break in the absence of a password or other relevant information required to de-encrypt or access the data.

The Bill includes the new procedure set out in the proposed s 74BR of the Summary Offences Act 1953 for a Magistrate (reflecting the sensitive nature of the power) to order that a suspected offender or other narrow class of third parties be compelled to provide information or assistance to access encrypted or restricted access records held on or accessible through a computer or data storage capable device. The class of third parties against whom such an order can be made is carefully prescribed to only capture persons that would be likely to have had some form of relationship or contact with the offender or device, that would give them knowledge or the ability to assist in accessing the suspected CEM material on, or accessible through the device.

The Bill at the request of the Independent Commissioner against Corruption, the Hon Bruce Lander QC, extends the means to seek access to encrypted records to investigations conducted by ICAC. The Hon Bruce Lander notes that ICAC investigators are also on occasion unable to gain access to encrypted online records germane to an ICAC investigation.

The new procedure for access to encrypted material is designed to complement existing powers of arrest, search and seizure and does not limit or derogate from any other Act or law. The proposed s 74BO makes this point clear.

The new offence in the proposed s 74BW(1) with a maximum penalty of five years imprisonment will apply to a suspected offender or third party who fails, without reasonable excuse (the onus being on the accused to establish), to provide information or assistance to access encrypted or restricted access records. The maximum penalty for the offence needs to be effective and proportionate. Other jurisdictions such as Victoria have a maximum penalty of five years imprisonment.

The power to compel information and assistance to access encrypted or protected records is available in the investigation of all offences carrying a penalty of two years imprisonment or more. It broadly draws on the regime in the Criminal Law (Forensic Procedures) Act 2007 which authorises forensic procedures for 'serious offences', that is an offence carrying more than two years imprisonment.

Though the acute problem of encrypted or protected material is typically encountered in relation to CEM offending, it is not confined to such crimes. The use of encrypted records is now an established feature of much modern offending. It could include terrorism, fraud, drug dealing, cyber bullying or revenge porn, online stalking or a breach of an intervention order where the offender uses the internet to harass or communicate with his or her former partner. It could also arise in summary offences with imprisonment of two years such as bomb hoax incidents where the most appropriate offence is 'Create False Belief' under s 62A of the Summary Offences Act.

Assistance or information to be the subject of an order by a Magistrate under the proposed s 73BR of the Summary Offences Act1953 may include the provision of a password/s, encryption codes, other means of access (such as a fingerprint) and or anything reasonably incidental or necessary to access the data. The order encompasses compelling of information or assistance that might include the provision of multiple passwords or means of access if the encrypted material in question turns out to be protected by multiple layers of encryption. In other words one global order is sufficient and it will be unnecessary for the police or the Independent Commissioner against Corruption to have to secure a new order each time they encounter a new password.

Remote cloud storage is a common service now used to store and distribute CEM and other data providing evidence of offending. The order to provide assistance or information to access the relevant data therefore includes data accessible from a device where the data is held on the cloud or other remote storage devices.

The authority to compel information and assistance also needs to cater for the preservation of data that can be erased remotely and a power to attend and remain at a location in order that the password(s) is/are provided in a timely manner. The authority to compel assistance or information also caters for preservation of data that can be erased remotely and the Bill includes a power to attend and remain at a location in order that the information/assistance is provided in a timely manner (including an incidental power of detention for up to two hours in serious or urgent circumstances pending a Magistrate's order to compel access to prevent the deletion of the encrypted material in question).

The Bill includes provision in the proposed s 74BT for a modified procedure in serious or urgent circumstances or to prevent the concealment, loss or destruction of the encrypted data in question. It may be that the incriminating encrypted data is not stored in the computer or device that has been seized by the police or the Independent Commissioner against Corruption but is likely to be remotely stored in the cloud and the release of the person subject of the order would be likely to lead to the loss of the data in question. It may be that the incriminating data relates to serious child sexual abuse and there is a need for speed to prevent a sexually abused child at risk who can be traced and rescued from being removed by the offenders.

The offence in the proposed s 74BW(1) provides a defence of 'reasonable excuse' for failing to provide a password or other means of access. The Bill provides that a fear of self-incrimination is not a reasonable excuse for failing to provide a password or other means of access. To allow this as a defence would undermine the effectiveness of the new power. The Bill draws on the Western Australian model in this context.

The test for a Magistrate to make an order to require access is on the familiar and well established standard of reasonable suspicion. This accords with many other powers of search and seizure.

The Bill provides in the proposed s 74BW(3) that, if in accessing encrypted or restricted access computer records in search of material relating to one offence the police should find material relating to another, quite possibly unrelated offence, the police are entitled to seize and retain the material relating to the other offence and to use it in any subsequent proceedings. This reflects the position for general powers of search and seizure at both common law and at statute.

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.

There is nothing in the proposed Bill to preclude or discourage police or an investigator with the Independent Commissioner against Corruption during a search, asking a suspect or third party to voluntarily provide access to encrypted material. The Bill to avoid any doubt makes this point clear in the proposed s 74BQ.

The intention of the new procedure to require access to encrypted material as set out in the proposed s 73BR(6) is that it should clearly apply to offences, whether committed whether before or after the Act comes into effect. It would be illogical if the authorities are already in control of a computer or come into control of a computer that may show evidence of a serious offence but they are only able to rely on the new power to require access to encrypted material if the suspected offence was committed after the Act comes into effect.

The Bill includes provision for the use of criminal intelligence in applications by the police for an order to compel access to restricted access records and the requirement for the Magistrates Court to protect such confidential material if its public release 'could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety.' This is a provision used in situations such as this. The Bill does not preclude or discourage any claim of public interest immunity that may also arise. The Bill is also not intended to displace legal professional privilege.

The Bill provides in the proposed s 74BX for three offences.

The first offence in s 73BX (1) includes a new tip off or cyber obstruction offence to cover the situation where an associate of the accused deletes the encrypted records in question when a device has been seized and an application for an order to require access has been made or is about to be made. This offence is necessary as with remote storage, it is possible for an associate to be able to remotely delete the encrypted material even though the device has been seized by police or the Independent Commissioner against Corruption and is the subject of an order to compel access.

This first offence is made out if the person, without lawful authority or reasonable excuse, alters, conceals or destroys data held on a computer or data storage device in respect of which an order has been, or is to be, made under this Part of the Bill; and either intends or is recklessly indifferent as to whether the investigation of the commission of an offence by another person is impeded or prejudiced; or another person is assisted to avoid apprehension or prosecution for an offence; or the likelihood that another person is apprehended or prosecuted for an offence is reduced.

The proposed s 74BX includes two further offences.

The contemporary technology is such that an individual could purport to comply with a court order and provide his or her password or other means of access but in reality this could destroy (or conceal or alter beyond recovery) all the encrypted records subject of the order. It is becoming common practice for persons with sophisticated IT knowledge to have these second or 'false' passwords for their devices. Once this password is entered, no-one can recover the data, not even the person whose device it is. The two further offences in the proposed s 74BX cover this situation where an individual is not only deleting (or conceal or altering) the relevant encrypted data but is doing so in effective contempt of any court order. These two further offences are intended to reflect the additional deliberation and gravity of such conduct. These offences have a maximum penalty of 10 years imprisonment to reflect their gravity.

The second offence in the proposed s 74BX(2) 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 that, or is recklessly indifferent as to whether, 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 a police officer the password, which the police officer uses and causes the data to be destroyed.

The third offence in the proposed s 74BX(3) is in similar terms. It covers the situation where, for example, no order is obtained because a person voluntarily provides a password that destroys, conceals or alters data on a computer or data storage device.

While the notion of compelling access to protected online material may be perceived by some as undermining important considerations of privacy and confidentiality, it is a timely measure to support the investigation and prosecution of child sexual abuse and other modern crimes.

Incidental Legislative Issues

For consistency with existing similar CEM offences, the Bill provides that an offender convicted of the new CEM administer/host offence will be a registrable 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 re-victimisation, that is the repeated viewing of CEM (if even for a lawful purpose). The incidental legislative changes will further enhance protection to the victims of CEM offending.

The Bill includes changes to the Evidence Act 1929 to enhance the protection to the victims of CEM. The Bill amends s 67H of the Evidence Act to make it clear that 'sensitive material' includes CEM. 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 s 69 of the Evidence Act 1929 to extend the usual requirement in sexual cases to clear a court when CEM evidence is being adduced.

The criminal law cannot remain unchanged in the face of technological advances and new ways of committing crimes, especially the sexual exploitation of children. The Bill is a proportionate and necessary measure to support the investigation and prosecution of not just child sexual exploitation but other forms of modern offending.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Child Sex Offenders Registration Act 2006

4—Amendment of Schedule 1—Class 1 and 2 offences

This amendment includes as class 2 offences, the child exploitation material offences relating to websites, as proposed in the amendments to the Criminal Law Consolidation Act 1935 by this measure (see proposed section 63AB below). This means that an offender convicted of any such offence, is a registered offender for the purposes of the Child Sex Offenders Registration Act 2006, and subject to the requirements of that Act.

Part 3—Amendment of Criminal Law Consolidation Act 1935

5—Amendment of section 62—Interpretation

This clause inserts additional definitions for the purposes of the proposed new offences in section 63AB. These include definitions for administering and hosting a website, as well as what it means to deal with child exploitation material.

6—Insertion of section 63AB

This clause inserts new section 63AB to create 3 new offences in relation to websites used to deal with child exploitation material.

63AB—Offences relating to websites

Subclause (1) provides that a person commits an offence if the person hosts or administers a website (which is defined to include an online forum, group or social media platform), and the website is used by another person to deal with child exploitation material and the person intends or is aware that the website is being used by another person to deal with child exploitation material. The provision provides a defence if the person proves that, on becoming aware that the website was being used by another person to deal with child exploitation material, the person took all reasonable steps in the circumstances to prevent any person from being able to use the website to deal with child exploitation material. This includes shutting the website down, modifying the operation of the website so that it could not be used to deal with child exploitation material, or notifying a police officer or relevant industry regulatory authority and complying with any reasonable directions as to action that should be taken.

This clause also provides that a person commits an offence if the person encourages another person to use a website intending that the other person use the website to deal with child exploitation material.

It is also an offence if a person provides information to another and the person intends the other person to use the information to avoid or reduce the likelihood of apprehension for a child exploitation material offence (being an offence against Part 3 Division 11A of the Criminal Law Consolidation Act 1935). This could include such things as a person providing advice to others about how to encrypt files that contain child exploitation material or how to use a website that deals with child exploitation material anonymously.

The maximum penalty for each of these offences is imprisonment for 10 years.

7—Amendment of section 63C—Material to which Division relates

This clause amends section 63C which sets out circumstances where the production, dissemination or possession of material is not an offence against Part 3 Division 11A (for example, by a police officer acting in the course of the officer's duties). The amendments extend these circumstances to cover 'dealing with' such material and is consequential on the proposed offences in new section 63AB.

8—Insertion of section 63D

This clause inserts proposed new section 63D

63D—Forfeiture

This proposed new section provides that if a person is found guilty of an offence against Part 3 Division 11A, then the court may order forfeiture of any material, equipment, device or other item that was used for or in connection with the commission of the offence. The court may allow a person the opportunity to retrieve specified records or information from such equipment, device or other item that was not involved in the commission of the offence before it is forfeited.

Part 4—Amendment of Evidence Act 1929

9—Amendment of section 67H—Meaning of sensitive material

This amendment makes it clear that 'sensitive material' includes child exploitation material, and thus ensures that the restrictions on lawful access to such material may apply.

10—Amendment of section 69—Order for clearing court

This amendment provides that a court must make an order to clear the court where child exploitation material is adduced as evidence in proceedings before the court. This means that only those persons whose presence is required for the purposes of the proceedings or who are otherwise allowed by the court are present.

Part 5—Amendment of Summary Offences Act 1953

11—Insertion of Part 16A

This clause inserts proposed new Part 16A.

Part 16A—Access to data held electronically

74BN—Interpretation

This clause inserts the definitions required for the purposes of the Part, including computer, data and data storage device. It also sets out the definition of investigator to mean an investigator under the Independent Commissioner Against Corruption Act 2012. The measures established by this Part are only exercisable in relation to the investigation of a serious offence, which is defined to be an indictable offence or an offence with a maximum penalty of 2 years' imprisonment or more. This clause also makes clear that the reference to data held on a computer or data storage device includes data held on a remote computer or data storage device (such as the cloud) that is accessible from the computer or data storage device.

74BO—Interaction with other Acts or laws

This clause provides that the provisions of this Part are in addition to, and do not limit or derogate from other provisions of the Summary Offences Act 1953 or any other Act or law.

74BP—Extraterritorial operation

This clause makes clear that this Part is to have operation outside South Australia to the extent of the legislative capacity of the Parliament to so provide.

74BQ—Order not required if information or assistance provided voluntarily

This clause clarifies that the information or assistance to access data held on a computer or data storage device contemplated by this Part pursuant to an order, may be provided by a person voluntarily. Any evidence or information that is obtained as a result of such voluntary provision of information or assistance is to be treated as if it were obtained by the lawful exercise of powers pursuant to an order under this Part.

74BR—Order to provide information or assistance to access data held on computer etc

This clause provides that a police officer, or an investigator under the ICAC Act, may make an application to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable or necessary to allow a police officer or investigator to access, examine or perform any function in relation to data held on any computer or data storage device, or to copy any such data to another computer or data storage device, or to reproduce or convert any such data into documentary form (or other intelligible form).

The magistrate must be satisfied that there are reasonable grounds to suspect that data held on a computer or data storage device may afford evidence of a serious offence. The magistrate must also be satisfied that the specified person is either reasonably suspected of the relevant serious offence, or is the owner or lessee of the computer or data storage device (or employee or contractor of such a person), or a person who has used the computer or data storage device, or a system administrator for the system including the computer or data storage device.

In addition, the magistrate must be satisfied that the specified person has relevant knowledge of the computer, data storage device or network of which the computer or device forms a part, or knowledge of the measures that are used to protect data held on the computer or device. The specified person is not intended to be a party to the application. The order granted by the magistrate need not identify each particular device and is intended to cover possible multiple layers of protection that may be applicable in relation to particular data. A statement of the grounds on which an order has been made must not contain information if that disclosure would be inconsistent with a decision of the magistrate in relation to information classified as criminal intelligence under proposed new section 74BU. An order under this Part may apply in relation to a serious offence suspected of having been committed or alleged to have been committed before or after the commencement of the proposed new Part.

74BS—Application for order

This clause sets out the requirements for the application for an order which include a statement of the nature of the serious offence that is suspected to have been committed and in relation to which the order is required, and the grounds on which the applicant suspects the offence has been committed. The application must also set out the grounds on which the applicant suspects that any data held on the computer or data storage device may be relevant to the offence and the grounds on which the applicant suspects the specified person has knowledge relevant to gaining access to any data held on a computer or device. The application is to be supported by an affidavit made by the applicant.

74BT—Order required in urgent circumstances

This clause provides for an urgent application to be made to a magistrate by telephone if a police officer or investigator considers there are serious and urgent circumstances or that it is necessary in order to prevent concealment, loss or destruction of data held on a computer or data storage device that may afford evidence of a serious offence. In relation to an urgent application for an order, the police officer or investigator may require a suspect to remain at a particular place or to accompany the officer or investigator to the nearest police station while the application is made, or for the period of 2 hours, whichever is the lesser period. During that time, the police officer or investigator may require the person not to use or access a computer or data storage device, telephone or other means of electronic communication (unless to contact a legal practitioner to obtain legal advice), or as directed by a police officer or investigator. If the person fails to comply with these requirements, the person may be arrested and detained without warrant for a maximum of 2 hours or until an urgent application is made, whichever is the lesser. In the case of an investigator who is not a police officer, the investigator must, on arresting a person, immediately deliver the person into the custody of a police officer. An urgent application must include the same information required for an ordinary application for an order in addition to the details of the circumstances giving rise to the urgency. If satisfied grounds exist to make the order, the magistrate may make an order on the proviso that the applicant agree to verify the relevant facts by affidavit, which is to be forwarded to the magistrate as soon as reasonably practicable. A statement of the grounds on which an order has been made by the magistrate must not contain information if that disclosure would be inconsistent with a decision of the magistrate in relation to information classified as criminal intelligence under proposed new section 74BU.

74BU—Criminal Intelligence

This clause provides that in proceedings under this Part, the Magistrate must, on the application of the Commissioner of Police, take steps to maintain the confidentiality of information classified by the Commissioner as criminal intelligence. The duties imposed on a magistrate under this clause also apply to any court dealing with information properly classified as criminal intelligence under this Part. The Commissioner must not delegate the function of classifying information as criminal intelligence except to a Deputy Commissioner or Assistant Commissioner.

74BV—Service of order

A copy of the order is to be served personally on the person to whom it applies.

74BW—Effect of order

This clause provides that it is an offence for a person who is served with an order to contravene or fail to comply with the order without reasonable excuse. Compliance is not excused on the ground that to do so might tend to incriminate the person. This clause also makes it clear that any evidence or information obtained by the lawful exercise of powers pursuant to an order, including evidence or information obtained incidentally, may be used for the purposes of investigating and prosecuting any serious offence, and such evidence or information is not inadmissible merely because the order was obtained in relation to a different serious offence.

74BX—Impeding investigation by interfering with data

This clause provides that a person commits an offence if the person, without lawful authority or reasonable excuse, alters, conceals, or destroys data held on a computer or data storage device that is, or may be the subject of an order and that may, or could reasonably be expected to be, evidence of an offence, with the intention of, or being reckless as to whether doing so, impedes the investigation of the commission of an offence by another person or assists another person to avoid apprehension or prosecution.

This clause also provides that a person served with an order commits an offence if the person, without lawful authority or excuse, alters, conceals or destroys data or causes another person to alter, conceal or destroy data held on a computer or data storage device in relation to which the order was made with the intention of, or being recklessly indifferent as to whether, in so doing the investigation of the commission of an offence is impeded or prejudiced.

Furthermore, a person who voluntarily provides or purports to provide information or assistance in relation to the access to data held on a computer or data storage device commits an offence if the information or assistance causes the data to be, without lawful authority or excuse, altered, concealed or destroyed, and in so doing, the person intends or is recklessly indifferent as to whether, the investigation of the commission of an offence is impeded or prejudiced.

Debate adjourned on motion of Hon. J.S.L. Dawkins.