Statutes Amendment (Child Exploitation and Encrypted Material) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 26 February 2019.)

The Hon. I.K. HUNTER (15:29): I rise today to indicate that the opposition is generally supportive of the thrust of the bill. We will be supporting the amendments that I believe the Hon. Mr Parnell will be moving, which have the effect of placing a limit on the entire package of legislation strictly to child exploitation material. The bill before us amends the Child Sex Offenders Registration Act 2006, the Criminal Law Consolidation Act 1935, the Evidence Act 1929 and the Summary Offences Act 1953.

First, the bill establishes new offences to deal with child exploitation material websites, and legislation I suppose is always trying to play a catch-up game with what is occurring in real life, particularly with technology. The online domain is no exception. Law enforcement agencies should be given every possible means to ensure they can do their job to hunt down and punish those people who engage in the most heinous of practices.

Secondly, the bill will provide a means via an order for the police to require a person to provide access to encrypted or protected electronic material that is reasonably suspected by police to be connected with criminal activity. As I indicated at the outset, we will support the Hon. Mark Parnell's amendments to limit the effect of this bill to child exploitation material, and we should absolutely crack down on paedophiles and on child exploitation material. We are, however, persuaded by the arguments that the Hon. Mark Parnell has advanced, particularly the arguments around self-incrimination, privacy, journalist shield laws and, of course, parliamentary privilege. With those few words, I indicate our support, on behalf of the Hon. Mr Wortley and those members of the opposition, for the bill and for the Hon. Mr Parnell's amendments.

The Hon. R.I. LUCAS (Treasurer) (15:31): I will leave the Opposition Whip to sort out the recalcitrant Hon. Mr Wortley. I thank members on both sides of the parliament for their contributions on this important bill, and the contribution from the Hon. Mr Hunter, at the death knell there. As the Attorney-General stated in her second reading explanation, this bill was introduced by the former government. However, it was not successfully passed through this parliament before the end of the last sitting year.

Upon forming government, the Attorney-General set about continuing work on this neglected bill. The bill, as stated, provides the much-needed tool in the investigation and prosecution of criminals. Criminals are, unfortunately, not confined to committing child exploitation offences. As previously seen in the former government's bill, this bill deals with serious offending beyond child exploitation. As pointed out by the Hon. Mark Parnell, the commission of child exploitation offences online and the existence of online child abuse networks is of particular concern to the community and to us all.

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 of great concern to the community.

Why would we provide police with the powers to investigate child exploitation offences but not terrorism, drug trafficking, revenge porn—and the list could go on. Other jurisdictions with similar powers, including Victoria, Western Australia, Queensland and the commonwealth, do not confine their equivalent powers to child exploitation offences; they are also applied generally.

It appears that there has been some misunderstanding regarding the object of this bill. The first part of the bill introduces new child exploitation offences not addressed by existing laws, closing the current loophole and criminalising the creation, promotion and use of child exploitation material online. The second is to provide new investigative powers to police to assist police detect these and other crimes. To inextricably link the two parts and suggest that the second be confined by the first fundamentally misinterprets the whole purpose and intent of the bill and the significant challenges of modern-day policing.

To ensure that the bill is the best possible version, further work was undertaken with the South Australian police force to ensure that measures in place in the bill are workable and provide enough scope to gather data, whilst also maintaining the rights of those being searched.

Some of the differences seen in the bill from the former government's bill respond directly to these discussions with the police. Attention has been drawn to the operation of proposed section 74BW. Subsection (4) clarifies any ambiguity around the order, allowing a third person to assist in accessing information. These third parties will be acting on instructions from SAPOL, under the guidance and direction of SAPOL, and will assist in circumstances where the third party already has access to the data behind the access point. Notably, the bill also has firm requirements for reporting and review to the minister and parliament. These amendments were added into the former bill by the Hon. Andrew McLachlan MLC, now President of the Legislative Council, and, on behalf of the government, I commend him for this work.

Where there are extra powers to investigate there must be appropriate scrutiny of those activities. This bill ensures that annual reports must be provided which detail how many applications were made by police officers, how many applications were granted and refused, a general description of the serious offences in relation to which the orders were made, a description of the types of devices and computers and data storage devices, and the number of such, where information was received from them.

In addition, the report will detail whether any persons were charged with a serious offence during that year on the basis of the research conducted. This data is vital in ensuring that searches are being conducted in accordance with the intent of the act and that the act remains effective with new and emerging technologies, which continue to change on a daily basis.

It has been argued in this place that the bill is too strict and undermines considerations of privacy and the right to silence. These arguments are, in the government's view, misguided. The bill merely extends what already occurs in the physical world to the modern, digital world. We are comfortable with police breaking into a house with a search warrant and accessing any other physical evidence they may come across, we are comfortable with 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 an electronic context, but this context requires assistance because it is becoming impossible to break open data. It is critical to acknowledge that the bill does not require a suspect to testify against himself or herself, that a person is not being forced to confess guilt; they are being required to provide information.

I note the Hon. Mr Parnell's alarm and concern that the police may force access to your electronic data using the powers proposed, spend valuable time scouring the data of your dash cam footage, and then seek to use it against you. SA Police are incredibly busy with the difficult and dangerous task of investigating serious crimes and keeping our community safe, for which the government is grateful. I cannot imagine they will be interested in trying to catch the Hon. Mr Parnell out for leaving on his headlights or exceeding speed limits. In any event, all the misdemeanours identified are not considered to be a serious offence for the purposes of this bill, so the Hon. Mr Parnell can rest assured that such data will not and cannot be used against him in such circumstances.

I do not intend to get into a debate that seeks to rank criminal offences in accordance with the Hon. Mr Parnell's private views about what he considers to be serious offending and what he considers to be trifling. The criminal law and the offences comprised in it do not sit in categories of black or white, 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 to a sample of opinions taken from the street.

The ICAC has noted that the Office of Public Integrity encounters the problem of being unable to gain access to encrypted records, and this has the potential to significantly undermine the vital investigatory work of his office. The effect of the member's second amendment is to remove ICAC investigations. The government now places on the record that we oppose the amendments put forward by the honourable member.

I now turn to the interesting point raised by the member in relation to parliamentary privilege. Parliamentary privilege refers to the special rights and immunities that belong to each house of parliament, their committees and their members, that are considered essential for the proper operation of the parliament. Relevant Australian laws derive primarily from the laws of England and, more specifically, those of the House of Commons and its members. It is undefined, not codified—and for good reason.

The member sought advice in relation to what will, may or may not attract privilege in investigations that may utilise the proposed investigative powers of this bill. As he is aware, this is not a question that can be answered without context. However, I will say, on behalf of the government, that where a member of parliament is accused of a criminal offence it has never been suggested that his or her status as a member places him in a different position with regard to the law, of arrest or trial, from that of an ordinary citizen.

Parliamentary privilege is an important convention and an essential element of modern parliamentary democracy. The member's amendment has no legal effect; however, the government does not oppose it. 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 criminal purposes.

We note the concerns of the crossbench in the scope of this bill and, as such, have flagged amendments, which the parties in this place have seen, to define the scope of 'serious offence' and ensure that both child exploitation and other crucial offences like terrorism, murder, forced marriage, drug trafficking and others are included. Given the lack of support for what the government believes are sensible amendments, they have not been filed; however, we will continue to pursue them between the houses.

The government notes—we are, if nothing else, political realists—that there is not the support for the government's position in relation to the Hon. Mr Parnell's amendments. So whilst we will continue to oppose them and we will continue to advocate for an alternative amendment, we accept the political reality that this afternoon the bill is likely to go through in an amended form.

Finally, on behalf of the government, I note that it is interesting that the Labor Party are supportive of amendments which completely redefine a bill they have previously showed so much support for, given it was their own, in essence. On behalf of the government, I leave members opposite with this extract from the debate of the 2017 bill, a quote from the Hon. John Rau, former attorney-general, who stated:

…'Why should I be in a different position if, rather than storing it in my cupboard or in my filing cabinet, I have stored it in the cloud or I have stored it in a device containing a digital memory capacity?' then the answer is obviously: how can you possibly draw that distinction? You cannot. If the offence is actually collecting this material, or storing this material, or holding this material so that you can access the material, why on earth does the mechanism by which you have accessed the material make any difference?

I urge support for the second reading.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. M.C. PARNELL: I thank the minister for his second reading summing-up and his excellent grasp of arithmetic and the numbers in this place, and I am pleased, on the indications given by members, that today, when we finish this bill, it will apply to child exploitation offences and will be limited to that purpose. I know the government's preferred option was to have it of much wider scope, and I appreciate that the government at the very last minute—yesterday, I believe—provided us with a list of other very serious offences that they thought might be a way to cut through, that we could add those into the bill. I do not think that is the right way to go.

The only thing in the minister's response that disturbed me a little bit was when he talked about trying to fix this up between the houses. I think there is a far better way to proceed. That way would be for us to deal with this bill now, deal with the Greens' amendments and then get this bill as quickly as possible to the House of Assembly so that it can pass through its remaining stages, because then, as a matter of urgency, we have given the police the powers they have asked for in relation to child exploitation offences.

The invitation I gave when I spoke, some while ago now, to the government was, 'Bring back another bill that deals with other crimes, other situations where the government believes that these powers to be able to'—

The Hon. R.I. Lucas: Would you support that?

The Hon. M.C. PARNELL: No; I am saying bring back another bill—

Members interjecting:

The Hon. M.C. PARNELL: No; the thing is, I am saying the government brings back a bill. If they want to bring back a bill with a list of the crimes they believe this provision should apply to, we will consider that.

The Hon. R.I. Lucas: And you will oppose it.

The Hon. M.C. PARNELL: No; you can work through your list, from terrorism to murder, and I will come back with swapping the price tags on the toaster in Bunnings. Really, this is a very serious matter of public policy. What the Legislative Council has said so far is, 'We're prepared to act swiftly. We're prepared to give the police the powers they want in relation to child exploitation material, and we can do that today.'

Of course, it is up to the government what they do. If they want to sit on this for another three weeks and then come back between the houses with further amendments, they are certainly entitled to do that, but it does make some of the remarks of the Treasurer from yesterday ring quite hollow when we are all being accused of courting the paedophile vote come election time, and that we are not being tough enough. Here is the Legislative Council saying to the government, 'We can deal with child exploitation material today. The House of Assembly can deal with it today. We can give the police the powers they want very quickly.'

I appreciate that the government has accepted that my first amendment has the numbers. Curiously, the government said that whilst it does not believe my second amendment has any work to do because of the nature of parliamentary privilege, what I said earlier on is that if my first set of amendments got through I would not move that second amendment. The reason I would not move it is quite simple. If we limit it to child exploitation offences and then we add a special provision relating to parliamentary privilege, it looks as if we are trying to protect members of parliament in relation to child exploitation material, and I do not want to do that.

What I said—and I will stick with this—is that if my first amendment gets up I will not move the second amendment. That should not cause too much grief. The government has said that, while they do not necessarily oppose it, they do not think it has any work to do, so it should be no skin off anyone's nose. I want to make it clear that when it comes to these abhorrent offences, as the Treasurer said, members of parliament should be treated the same as anyone else. We want to make that crystal clear, so I will not move that second amendment.

In terms of assisting the committee, it is in your hands, Mr Chairman, but I have nothing further to add in relation to clause 1. I note that all of my amendments relate to clause 11. That is the operative provision. I am happy to move them as a block, but I am just thinking it might be necessary to split them up. If I have declared now that I am not moving my set number 2—I will say that now—and when we get to clause 11, I will move mine as a block, if that is appropriate.

The Hon. R.I. LUCAS: I will briefly outline the government's position. I did, on behalf of the government, outline our concerns at the second reading reply. From the government's viewpoint, we do accept the political reality. However, we will, in opposing this particular amendment, use this as a test vote for the views of the majority of the council. Our understanding is that the numbers will not be with the government, but nevertheless we will test the vote on the floor and we would accept this as a test vote for the package of amendments the Hon. Mr Parnell is proposing to move.

Put simply, if I can repeat the position, the government's position is that clearly these offences are serious but that so too are terrorism offences, drug trafficking offences, revenge porn, cyber-facilitated abuse, cyber fraud and domestic violence. What those who are opposing the government's position are saying is that they are prepared to arm the police with the powers which they will be able to use in relation to child exploitation, but in relation to terrorism, drug trafficking, revenge porn, cyber-facilitated abuse, cyber fraud and domestic violence offences, the people who support the Hon. Mr Parnell are saying, 'No, we won't support it.' At least I thank the Hon. Mr Parnell for his momentary lapse into honesty there—

The Hon. T.A. FRANKS: Point of order, Mr Chair: the Treasurer just impugned improper motives from the member, and I ask him to withdraw it.

The CHAIR: Treasurer.

The Hon. R.I. LUCAS: No, I am not going to withdraw, Mr President, I congratulated him for his lapse into honesty, because when I put the question to him—

The Hon. M.C. PARNELL: Point of order: my recollection of the member's words were—I think it was a 'momentary lapse into honesty', the implication of which is that all of the rest of the time I am not honest. I think that is an adverse reflection.

The CHAIR: Can you clarify your comments, Leader of the Government?

The Hon. R.I. LUCAS: I am very happy, in the interests of proceeding, to withdraw that imputation about the honourable member. Can I congratulate him on his honesty in responding to the question that I put to him. The honourable member's position has been, 'Let's split the bill,' and he invites the government to come back with a second bill to tackle the issues of terrorism, drug trafficking, revenge porn, cyber-facilitated abuse, cyber fraud and domestic violence. When I put the question to the honourable member and said, 'Will you support the bill?' he said, honestly, 'No.'

I am congratulating him for his honesty, because the honourable member's position is disingenuous, if I am allowed to use that word, because the position he is putting is, 'Let's split the bill and we'll tackle this issue now, and we'll tackle the other issues, like terrorism, drug trafficking, revenge porn, cyber-facilitated abuse, cyber fraud and domestic violence, in a second bill,' and he invites the government to bring that particular bill back, but he is still going to oppose that particular bill as well.

I think it should be clear to everyone that the Hon. Mr Parnell's position, one which is being supported by a number of other members in this chamber, so we are led to believe, is that they do not want to see this particular power extended to trying to tackle these other very serious offences. That is the government's position. We want the powers to tackle child exploitation offences, but we also believe that terrorism and the range of other serious offences also are meritorious or deserving of these additional powers as well.

As I said, from the government's view, we will take this first vote as a test vote for the package of amendments the Hon. Mr Parnell is moving to clause 11 in relation to this particular issue. If we are unsuccessful on the first we will accept the vote of the majority.

The Hon. M.C. PARNELL: I did say that I had nothing else to say on clause 1, but in deference to some people I consulted in relation to these amendments, I should put on the record that I wrote to the Law Society with a copy of my amendment, and they have written back. I have circulated this reply to all members. The crux of their response is to say:

The society supports this amendment and has previously submitted that the definition of 'serious offences' should strictly pertain to offences related to CEM.

CEM is child exploitation material. It continues:

In its current form, the Bill would apply to any indictable offence, or an offence with a maximum penalty of 2 years imprisonment or more.

In this advice they are basically saying that the approach the Greens are taking is consistent with the Law Society's approach.

By way of defence to the Treasurer's attack, when he asked whether I would support it I was not saying I would support any particular measure. He was asking whether I support the approach; yes, I do. He was asking me if I would guarantee to support a bill I have not seen; I have no idea what is in it. Of course the answer to that is always no. Are you going to support a bill that you have not seen and where you do not know what is in it? He identified about four offences, all of which are horrible crimes. I do not disagree that they are horrible crimes, but if he wants to go through the 20 or 30 different offences that they have flagged they might include, we are debating a second bill that we have not seen yet.

I want the record to show that my request of the government is to come back with a second bill and give the police the powers they want in relation to child exploitation material now. The Greens will look at every government bill on its merits, as we always do. We will thoroughly analyse it. We will consult with stakeholders, which is an important thing here. These laws, which relate to every single citizen who owns a phone or a computer, have not been widely consulted on in the community. I think they were scurrilously attached to a bill that everyone automatically expected we were all going to support in relation to child exploitation material.

I am really unhappy with the way the government has done this, combining these two issues into one bill. The minister has explained that we are all confused and that it really was quite a natural thing to put them together. I think the government should come back, deal honestly with the South Australian public, have a proper consultation—

The Hon. R.I. Lucas: Are you suggesting we weren't dealing honestly on every other occasion?

The Hon. M.C. PARNELL: The government should come back and have a proper consultation in the community about privacy laws, the right to silence and all of these issues. That will help inform the debate on the number two bill that I have invited the government to bring back. I want to put on the record that the Law Society believes that the approach the Legislative Council is taking today is the right approach.

The Hon. C. BONAROS: Can I start by saying that I think this is the second day running on which I take exception to the suggestions that are being made by the Treasurer in this place in relation to our views on issues as serious as domestic violence, murder, rape, terrorism, drug trafficking and cyber abuse. I think our records in this place, in terms of our positions previously, speak volumes about where we stand on those issues. For the record, I would also like to clarify that we certainly have not said that we are not open, and I think I speak for myself and my colleague. We would be very open to supporting legislation that addresses those very specific issues.

The issue that we have is that we have been given a draft that lists some 60-odd offences that do not fall within the scope of child exploitation and therefore, arguably, not within the scope of the issue that we have been considering; that is, child exploitation. That is really why we have taken exception to the way that we are dealing with this bill.

I think the Hon. Mark Parnell has put forward a very sensible solution to this; that is, that we deal with the child exploitation element of the bill and give the police the powers that they want now to address the issue of child exploitation. Between now and the next sitting week, the government can come back with another bill that deals with these other issues that have been listed, which we all treat very seriously, and give us the opportunity to consult on those matters for due process to take its course and for us to appropriately consider which of those matters we think ought or ought not be included in that bill.

That does not mean that we do not take seriously or that we somehow support domestic violence, murder, rape, terrorism, drug trafficking, cyber abuse, cyber crime and whatever else you want to add to the list. However, it is inappropriate to present us with a list of 60-odd items, saying, 'These are all the things we are going to tack on to child exploitation,' and suggesting that we should just pass those without actually considering those items, based on their own merits. The suggestion that we support those sorts of crimes is also extremely offensive.

On behalf of SA-Best, I indicate that I think the Hon. Mark Parnell has pointed to a very sensible course of action, and that is the one that we will be supporting.

Clause passed.

Clauses 2 to 10 passed.

Clause 11.

The Hon. M.C. PARNELL: I move:

Amendment No 1 [Parnell–1]—

Page 7, after line 18 [inserted section 74BN(1)]—Before the definition of computer insert:

child exploitation offence means any offence involving sexual exploitation or abuse of a child, or exploitation of a child as an object of prurient interest;

I do not propose to speak to it. We have agitated the issues.

The Hon. C.M. SCRIVEN: I indicate that the opposition will be supporting this amendment.

Ayes 11

Noes 8

Majority 3

The Hon. M.C. PARNELL: I move:

Amendment No 2 [Parnell–1]—

Page 7, lines 34 and 35 [inserted section 74BN(1), definition of investigator]—Delete the definition of investigator

Amendment No 3 [Parnell–1]—

Page 7, lines 36 to 39 [inserted section 74BN(1), definition of serious offence]—Delete the definition of serious offence

Amendment No 4 [Parnell–1]—

Page 8, line 20 [inserted section 74BQ]—Delete 'or an investigator,'

Amendment No 5 [Parnell–1]—

Page 8, lines 27 and 28 [inserted section 74BR(1)]—Delete 'or an investigator'

Amendment No 6 [Parnell–1]—

Page 8, line 30 [inserted section 74BR(1)]—Delete 'or an investigator'

Amendment No 7 [Parnell–1]—

Page 8, lines 38 and 39 [inserted section 74BR(1)(c)]—Delete 'or investigator'

Amendment No 8 [Parnell–1]—

Page 9, line 4 [inserted section 74BR(3)(a)]—Delete 'serious offence' and substitute 'child exploitation offence'

Amendment No 9 [Parnell–1]—

Page 9, lines 6 and 7 [inserted section 74BR(3)(b)(i)]—Delete 'serious offence' and substitute 'child exploitation offence'

Amendment No 10 [Parnell–1]—

Page 10, line 1 [inserted section 74BR(6)]—Delete 'serious offence' and substitute 'child exploitation offence'

Amendment No 11 [Parnell–1]—

Page 10, line 9 [inserted section 74BS(1)(c)]—Delete 'serious offence' and substitute 'child exploitation offence'

Amendment No 12 [Parnell–1]—

Page 10, line 25 [inserted section 74BT(1)]—Delete 'or an investigator'

Amendment No 13 [Parnell–1]—

Page 10, line 29 [inserted section 74BT(1)]—Delete 'serious offence' and substitute 'child exploitation offence'

Amendment No 14 [Parnell–1]—

Page 10 lines 29 and 30 [inserted section 74BT(1)]—Delete 'or investigator'

Amendment No 15 [Parnell–1]—

Page 10, line 34 [inserted section 74BT(1)(a)]—Delete 'or investigator'

Amendment No 16 [Parnell–1]—

Page 11, line 6 [inserted section 74BT(1)(b)]—Delete 'or an investigator'

Amendment No 17 [Parnell–1]—

Page 11, line 8 [inserted section 74BT(1)(c)]—Delete 'or investigator'

Amendment No 18 [Parnell–1]—

Page 11, lines 10 and 11 [inserted section 74BT(1)(c)]—Delete ', subject to subsection (2),'

Amendment No 19 [Parnell–1]—

Page 11, lines 13 to 17 [inserted section 74BT(2)]—Delete subclause (2)

Amendment No 20 [Parnell–1]—

Page 13, lines 9 and 10 [inserted section 74BW(3)(a)]—Delete 'serious offence' and substitute 'child exploitation offence'

Amendment No 21 [Parnell–1]—

Page 13, line 12 [inserted section 74BW(3)(b)]—Delete 'serious offence' and substitute 'child exploitation offence'

Amendment No 22 [Parnell–1]—

Page 13, line 13 [inserted section 74BW(3)(b)]—Delete 'serious offence' and substitute 'child exploitation offence'

Amendment No 23 [Parnell–1]—

Page 13, line 14 [inserted section 74BW(4)]—Delete 'or an investigator'

Amendment No 24 [Parnell–1]—

Page 13, line 16 [inserted section 74BW(4)]—Delete 'or investigator'

Amendment No 25 [Parnell–1]—

Page 14, line 30 [inserted section 74BY(1)(c)(i)]—Delete 'serious offences' and substitute 'child exploitation offences'

Amendment No 26 [Parnell–1]—

Page 14, line 38 [inserted section 74BY(1)(d)]—Delete 'serious offence' and substitute 'child exploitation offence'

Amendment No 27 [Parnell–1]—

Page 15, lines 1 to 30 [inserted section 74BY(2)]—Delete subclause (2)

Amendment No 28 [Parnell–1]—

Page 15, lines 31 and 32 [inserted section 74BY(3)]—Delete 'and the Independent Commissioner Against Corruption'

Amendment No 29 [Parnell–1]—

Page 16, lines 1 and 2 [inserted section 74BZ(2)]—Delete 'and the Independent Commissioner Against Corruption'

The CHAIR: Does any honourable member wish to make a further contribution? They are not strictly consequential but I intend, unless an honourable member objects, to put them collectively in the one question. Does any honourable member object? Then I put the question that amendments Nos 2 to 29 [Parnell-1] inclusive be agreed to.

Amendments carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (16:06): I move:

That this bill be now read a third time.

Bill read a third time and passed.