Statutes Amendment (Child Exploitation and Encrypted Material) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 12 February 2019.)

The Hon. K.J. MAHER (Leader of the Opposition) (17:14): I rise today to indicate that I will be the lead speaker for this bill and that, in many aspects, the opposition supports it. The bill amends the Child Sex Offenders Registration Act 2006, the Criminal Law Consolidation Act 1935, the Evidence Act 1929 and the Summary Offences Act, and provides, effectively, two separate policy measures.

First, the bill establishes new offences to deal with child exploitation material websites. South Australia has legislation that deals with the possession and distribution of child exploitation material. However, often it can be challenging to use those laws to cover the administration and creation of child exploitation material on websites, and this is an area that we wholeheartedly support.

Secondly, the bill provides a means via an order for law enforcement to require a person to provide access to encrypted or protected electronic material that is reasonably suspected by police to be in connection with criminal activity. We note that this part of the bill goes beyond the title of the bill and deals with a lot more than child exploitation material.

I can indicate that we have some concerns with this part of the bill, so we will support the part of the bill that deals with the child exploitation material but we are not at this stage supporting the part of the bill that deals with the encryption that goes beyond the child exploitation side. Of course, if it is deemed that these powers are needed in some respects, we are happy to come back and look at another bill that deals with that, but I can indicate that we will support the first set of the Greens' amendments on this bill.

The Hon. C. BONAROS (17:16): I rise to speak on behalf of SA-Best in support of the second reading of the Statutes Amendment (Child Exploitation and Encrypted Material) Bill 2018. The 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. It has two distinct aims. As we know, first, the bill establishes new offences to deal with administering or facilitating the use or establishment of child exploitation material websites and, secondly, the bill provides a means for the police to compel a suspect or third party 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.

It is the second aim of the bill that has caused some concern—quite a bit of concern, it is fair to say—in terms of its scope, and I will return to address these issues in detail later during this speech. It is important to note at the outset that the bill was introduced by the former Labor government. However, whilst the bill passed the lower house, it was still pending in the Legislative Council when parliament was prorogued. There have been some additions incorporated into the current bill before us that deal with a reporting provision and a review of the provisions contained in the bill, and again I will return to these clauses shortly.

No-one in our society is more despised and vilified than are child sex offenders. The insidious and devastating harm they cause innocent children cannot be overstated. We need policies and consequent legislation that keep those who might harm children away from them. To do otherwise would be negligent. So this bill aims to do that, and we certainly support the government in its efforts to do so, and also the former government in its efforts to do so, and equip law enforcement with the necessary tools to arrest and prosecute perpetrators of these crimes.

The bill is, as we know, in response to dramatic technological advances and the new ways in which crimes, especially the sexual exploitation and abuse of children, are being committed. The advances in and the use of technology are occurring at a rapid rate, often with the law trailing behind, unable to keep up and maintain relevance and accuracy. Think of the humble mobile phone, Mr President, and the rapid improvements with their inbuilt cameras for both videotaping and capturing photos.

The advent of social media, kicked into the stratosphere by Facebook some 15 years ago, has provided an easy and quick way for these images and videos to be uploaded and disseminated onto sites, which of course can be shared many, many times over. Many of these websites and social media platforms have 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 by text, images or videos.

That all sounds great and these advances in technology bring obvious benefits for our modern society; however, there is also a very dark side. In parallel with the mainstream sharing services is the dark web, the part of the web that is not indexed by web search engines. These sites require specific software and configurations to access them. These networks focus on providing anonymous access to the internet. It is the perfect hiding place for paedophiles to carry out their heinous crimes and is, indeed, the very reason why this bill is required.

As at June 2018, there are more than 4.2 billion internet users worldwide. Many of them are children, who increasingly live so much of their lives online. Children find it difficult to separate between the online and the real offline worlds in which they live. Not having access to the internet is like the end of the world as we know it for the current generation of children; it is all they have ever known and, indeed, the same could be said not just for children but for many adults.

However, when it comes to children, paedophiles use this to their advantage. They use the anonymity of the internet to zero in on vulnerable children who are often roaming the digital world unsupervised. A 2009 United Nations UNICEF report detailed that at any given moment 750,000 internet users are child predators. That statistic is now 10 years old and that number is sure to have grown exponentially in the last decade with the consequent explosion of social media and proliferation of the dark web.

In the early and mid-2000s in Australia the number of images seized when an offender was arrested was around 1,000 images of child sexual abuse. These seizures were measured in kilobytes and megabytes of child exploitation material. Today, that reality is much more sickening, with an average seizure between 10,000 to 80,000 images and videos. Some seizures have contained more than one million multimedia files. The AFP is now seizing terabytes and petabytes of child exploitation material, cloud-based and hard drive material. A petabyte, for those of us who are not familiar—and I certainly was not—is the equivalent of one million gigabytes. A typical DVD holds 4.7 gigabytes of data, so expressed another way a petabyte is the equivalent of 20 million four-drawer filing cabinets with text.

The scale of sickening data being stored by paedophiles is simply incomprehensible. In Australia a total of six million images depicting the sexual exploitation of children is held in the Australian National Victim Image Library. It is nothing short of a tsunami of child exploitation material. No other word comes close to describing the scale of the abuse.

In 2016-17, the AFP received more than 10,000 reports of child abuse material through its Child Protection Assessment Centre. Last year, the AFP assessment centre expected to receive in excess of 18,000 reports. This should be of great concern to all law-abiding Australians in South Australia, and indeed across the nation. Keeping children safe is not just a law enforcement issue, it requires the community to work together to create safer environments for children.

In 2017, I note the Internet Watch Foundation (IWF), which exists for the global elimination of child sexual abuse imagery online, assessed 78,589 reports as child sex abuse web pages: 43 per cent of victims were aged 11 to 15 years of age; 55 per cent of victims were aged younger than 10; and 2 per cent were aged less than two. A report by IWF, published in May 2018, examined the distribution of captures of live stream child sexual abuse over a three-month period and identified 2,082 images and videos of live stream child sexual abuse.

The study revealed shocking statistics on children being groomed, children being coerced and blackmailed into live streaming their own sexual abuse over webcams, tablets and mobile phones. That study found that 96 per cent of victims were girls; 96 per cent showed a child on their own in a home environment; 18 per cent of the abuse was categorised as category A, which includes the rape and sexual torture of children; 40 per cent of the abuse was categorised as category A or B, which indicates serious sexual abuse; and 100 per cent of images had been harvested from their original upload locations.

Shockingly, 100 per cent of the imagery had been harvested from the original upload location and had been redistributed on third party websites, with 73 per cent of content appearing on 16 dedicated forums. This indicates the abusive imagery was being shared with the intention of advertising paid downloads of videos of webcam child sexual abuse. Disturbingly, a huge 40 per cent of this illegal imagery was found as category A or B—category A being the most depraved form of abuse, which involves what IWF classifies as the rape and sexual torture of children. Of the live stream content, 4 per cent was captured from mobile-only streaming apps.

These figures are shocking to hear and even harder to comprehend, and I think it is really important for that reason that they be placed on the record. The measure of online exploitation is colossal and one that I think we all struggle to get our heads around. The IWF report worked with over 2,000 cases where children had been either groomed or coerced into live streaming videos of themselves via their webcam, mobile or tablet. The backgrounds in the videos studied mostly showed that the children were in their home settings, somewhere like their bedrooms or a bathroom. Critically, no adult appeared to be present in the images seen by IWF. Therefore, IWF concluded that these children were being directed to abuse themselves and live stream the sexual abuse for the sexual gratification and profit of paedophiles.

This information will be terrifying for most parents. I know it certainly terrifies me, particularly given the ease with which this can infiltrate your family home, your children's bedrooms and your family living rooms—your private spaces within the family home. I cannot stress enough the importance of organisations like the Carly Ryan Foundation in teaching parents, children, carers and professionals the importance of being aware of children's technology use and the dangers posed to them by paedophiles, and especially the potential abuse of live streaming technology used by them.

The IWF study suggests that any legitimate internet platform could be abused by offenders intent on contacting children, and this makes any platform offering live streaming a potential target for offenders. The exploitation of children can happen to any child who has access to live streaming technology, and we as parents and carers need to be vigilant. We need to be aware of the technology our children are using as there is a very real and present danger of allowing children unrestricted and unsupervised access to webcams and mobile phone cameras. Even very young children can be groomed in this way, with the majority of children in the study aged between 7 to 13 years. But the youngest was assessed as being just three years of age.

Most of the illegal videos seen by IWF have apparently been recorded by offenders who viewed the live-streamed abuse and then distributed it. The children in these videos appear to be completely unaware a recording was ever being made. Children are clearly being abused, even if the offender is not in the room. The level of grooming is sophisticated and pervasive.

The research conducted by IWF shows a worrying new trend in the abuse of children. Permanent captures from live streams showing children being groomed or encouraged to perform sexual acts now represent more of the new images seen by such organisations. Recent data shows that so-called self-produced content accounts for more than one in three reports that are made to the IWF.

Then there are examples much closer to home. In a revelation that outraged the nation, Australia's most evil predator, Peter Scully, received half a million dollars in Australian taxpayer money under the federal government's serious criminal matters scheme to fund his legal bills to fight criminal charges of child exploitation. Scully, as most of us would know, is the evil mastermind behind a worldwide child exploitation ring. Parents handed over their children to Scully, a complete stranger, on the promise that a complete stranger would offer them a better life. What he offered them instead was a life of pain, a life of torture and a life of unspeakable sexual abuse.

From a remote corner of the Philippines, Scully operated a putrid business creating videos of child sexual abuse, which he would then market to a hungry global syndicate of paedophiles for up to $10,000 per view. Scully was arrested in 2015 for sexually abusing several girls, including an 18-month-old infant, and for the alleged murder of a 12-year-old girl. In 2018, Scully was convicted and he is serving a life sentence in a Filipino prison.

Scully is also linked to two other Australian men, including a South Australian man. The first is Matthew Graham, also known as 'Lux', a 23-year-old man living with his parents who was sentenced to 15 years in gaol for running one of the deep web's most complex and evil global child abuse networks, known as the 'pedo empire'. The network encompassed several sites and forums, mainly featuring extreme content.

Graham shared footage of the torture, the killing and the mutilation of infants, including videos allegedly produced by Scully. His networks gained up to 400,000 hits a day and included people who posted images of themselves abusing their own—their very own—children. Graham was just 17 when he commenced offending and was 21 years of age when he became the sick and depraved head of a child abuse network.

The second person Scully is linked to is Shannon McCoole, known to most South Australians now. As we know, McCoole had no criminal history and worked for child protective services. He also controlled an international child sexual abuse bulletin, which had 45,000 members in the network that were obliged, as a condition of membership, to share a continuous stream of child sexual abuse material. It was considered proof of their commitment to sexually abuse children. McCoole would upload images and videos of himself sexually abusing young children and babies in his care while he was employed by Families SA. McCoole, as we know, was sentenced to 35 years in prison with a non-parole period of 28 years.

These examples, as difficult as they are to wrap your head around, are the stark realities of the online world of child sexual abuse and provide the context to explain why this bill is so very necessary. The amount of imagery I have described is more now than ever before and will continue to increase unless we as a community and as a parliament do more.

Returning now to the detail of the bill, as I alluded to, the first part of the bill introduces three specific offences to criminalise the creation, promotion and use of child exploitation websites with a penalty of 10 years' gaol, consistent with most existing aggravated child exploitation material offences in this state. The first offence in clause 6, inserting section 63AB(1), seeks to target offenders who create, moderate or manage an offending website, including people who might be tech support of such a site or hold the membership list, not just those who build it and manage it daily.

Those found guilty of this new offence will be registerable offenders and subject to the requirements of the state Child Sex Offenders Registration Act 2006 and consequently the Australian National Child Offender Register (ANCOR) and the National Child Offender System (NCOS) schemes as applicable.

New section 63AB(5) creates an offence of promoting or encouraging another person to use a child exploitation website. The word 'encourages' has been given a deliberately broad meaning so as to extend to any form of promotion, whether that is online advertising through an app or chat group or by direct conversation. The third new offence contained in new section 63AB(7) in this part of the bill deals with the person providing information or equipping another person with the knowledge or advice to evade or reduce the risk of getting caught.

The type of information provided could include how to use a child abuse website anonymously, how to encrypt files of child exploitation material or, indeed, how to conceal the personal details of offenders using the site. That advice may be given on the web platform itself, separate to it or even verbally under subsection (8), which does not require that the information provided was used by the person who received it. It is important to note the interaction of these new offences with division 10 of the Evidence Act, which restricts access to sensitive material during the prosecution process. Division 10 of that act ensures that sensitive material, including images of child abuse, are tightly held through the prosecution process so as to avoid the retraumatisation of victims.

For that purpose, proposed section 67H(1)(ab) in the bill expressly incorporates child exploitation material into the definition of what is called 'sensitive material' for the purposes of the Evidence Act, so that the restrictions outlined in division 10 apply to any such material. It would be highly distressing for a victim to know that material of them may be viewed again and again by the offender or offenders, and it is in this context that changes were made to the law in 2008 to limit the circumstances in which such material is viewed by all parties to a prosecution and particularly by offenders.

Further, the bill includes a proposed amendment to section 69 of the Evidence Act to allow for judges and magistrates to issue an order clearing the court where child exploitation material is adduced. Currently, this is not the case, and the proposed amendment will ensure that child exploitation material will now be an explicit ground for such an order, again with the intention of protecting children and limiting their retraumatisation.

The new offences in this bill will make it easier to arrest and charge paedophiles who are engaged in the hosting of child abuse websites and who encourage others to get involved in similar activities. Would-be sex offenders had better think twice about becoming entangled in such depravity and turn their mind to the fates of the likes of Peter Scully, Matthew Graham and Shannon McCoole before embarking down the dark and twisted path of those three individuals.

I come now to the second part of the bill, which seeks under proposed section 74BR to provide the means for police to compel a suspect, or a narrow class of third parties, to provide information or assistance that will allow access to encrypted or other restricted material that is reasonably suspected to relate to criminal activities.

The provision is, as we know, in the exact same terms, word for word, as the provision which existed in the bill of the same name in the previous parliament. It will mean, effectively, that a magistrate, at the request of a police officer, can order that a person, not just the suspect but any person, unlock a computer, phone or other device that is password protected or encrypted and contains data related to a very broad wide-ranging number of offences. Failure to do so attracts a five-year penalty.

The concern that has been raised by the Law Society in response to the bill's previous iteration in the previous parliament is that these broad powers are not limited to child abuse and exploitation crimes—the very essence of the bill—but apply in relation to a wide variety of crimes considered a serious offence. I understand that the Law Society continues to hold this same concern in relation to the bill that we are currently considering.

The Hon. M.C. Parnell: Yes.

The Hon. C. BONAROS: In fact, the provisions extend to any indictable offence or an offence with a maximum penalty of two years or more. This is certainly beyond the scope of the bill. The Law Society has submitted that the definition of 'serious offence' should strictly be restricted to offences related to child exploitation, and I think that is a sensible move.

The issue I suppose we have is that the government is adamant that the bill must be passed as a package and that they will not consider anything less. They will not consider splitting the bill, despite the very real concerns and cogent reasoning provided by the Law Society. I note on behalf of the Greens that the Hon. Mark Parnell has filed a set of amendments in [Parnell–1] that seek to split the bill. Retaining the provisions that relate to compelling a person to hand over passwords and encryption keys so that police can access evidence is sensible, insofar as they relate to child exploitation offences only—that is, the issue that is the centrepiece of this bill—given that these are the most heinous of crimes and fall within the scope of this bill.

I echo the concerns of the Hon. Mark Parnell with respect to digital privacy rights and the boundaries of police authority to force the unlocking of electronic devices, and commend him for the explanations he has certainly provided to me on those issues. I have to agree that I think there are real grounds here for dealing with this bill in two separate parts. We can deal with the child exploitation parts of the bill, but if there are concerns around this other access that police can have to encryption keys and so forth, then I think that warrants a separate debate related specifically to those issues.

Allowing the provisions to apply to any indictable offence, or an offence with a maximum of two years or more, certainly requires further examination and scrutiny, and I hope other members will agree with me on that. We are, I think I have indicated now, extremely sympathetic to the amendments that the Hon. Mark Parnell has proposed, and obviously we will listen further during the committee stage of this debate as to how that unfolds. I am certainly keen to hear from the government in response to the Hon. Mark Parnell's amendments to the bill.

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

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

The bill also increases to four hours the length of time a person can be held by police or an investigator pending an application for an order. In the previously prorogued bill, it allowed for two hours of detention, but we are advised that this extension of time was requested by SAPOL and conforms with the length of time permitted under other similar provisions.

Whilst I note that the version of the bill before us includes a requirement for the Commissioner of Police and ICAC to comply with annual recording and reporting obligations and to furnish the Attorney-General with an annual report to be tabled in the parliament, and there is also a requirement to review the provisions three years after the commencement of the act, I am not certain that this will be enough to satisfy SA-Best of the very real concerns about the extent and application of police powers and the privacy considerations that must be considered in detail. Again, we look forward to hearing from the government in response to those issues.

Before concluding my remarks, I just want to raise one other matter involving child exploitation. I had hoped that it would form the basis of amendments to the bill to deal with the shocking and unseemly issue of childlike sex dolls. Unfortunately, the advice I have is that it does not fall within the scope of the bill, but that does not mean that we will not be able to deal with that issue in this place. For those who are not aware, these objects are three-dimensional childlike dolls. They resemble children and they have imitation orifices and are intended to be used for simulating sexual intercourse with children. It is extremely disturbing that these dolls are available on the market.

It is an emerging form of child exploitation material that clearly has to be criminalised to prevent children from being abused, as the dolls normalise abusive behaviour towards children, encourage the sexualisation of children and increase the likelihood that a paedophile will engage in sexual activity with or towards children. I accept the advice of parliamentary counsel that these amendments would be beyond the scope of this bill and would expand the definition of child exploitation material to include these dolls and criminalise their use, and as such are not quite within the scope of the bill.

In closing, I foreshadow that it is SA-Best's intention to introduce a private members' bill to that effect in the next week of sitting. With those words, I support the second reading of the bill.

Debate adjourned on motion of Hon. T.J. Stephens.