Statutes Amendment (Child Exploitation and Encrypted Material) Bill

Final Stages

Consideration in committee of the House of Assembly's message.

(Continued from 2 April 2019.)

The Hon. R.I. LUCAS: I move:

That the council does not insist on its amendments Nos 1, 8 to 11, 13, 20 to 22, 25 and 26.

In speaking briefly to this, my advice from the Attorney-General's office is that the government recognises—evidently from discussions with the majority of members, or at least at this stage subject to whether or not some members speak at any length during this particular contribution—that the majority of members are likely to insist on their previous position, which is different from the position that the government is putting.

Unless I am advised through the passage of this particular debate that there is some movement in various members' positions, I do not intend to prolong this debate and reagitate issues that were thoroughly agitated previously. So, on behalf of the government, I move as I have outlined.

The Hon. M.C. PARNELL: I will be relatively brief because I appreciate that the delicate balance of numbers in this place can be upset by saying too much as well as by saying too little, but I do want to put a couple of very brief things on the record. The first thing I want to do is to thank both the government and the opposition for not proceeding with this bill during the two weeks that I was away from parliament, because I know it was on the government's list to progress and I appreciate the consideration that was given. I did not mean to be absent, but I was and I am glad that the bill was held over, so I would like to thank the chamber for that consideration.

The second thing I will say is that, when this bill was last debated, my suggestion to the government was to go back and revisit a number of elements of it, including to finetune the list of offences that they believed ought to be caught by the encryption powers. Certainly, the government has done that, but they have actually overreached, I think, in a fairly important way, and I want to put that on the record. The alternative amendments proposed by the House of Assembly include a catch-all provision that allows the government, by regulation, to prescribe any other criminal offence as being caught by the encryption powers.

In other words, it is one thing to identify a list of crimes where the police are able to go to a magistrate and get what has been colloquially referred to as an electronic warrant, but when you also add a provision saying, 'And any other offence that, by regulation, the government thinks of,' then I think that is an incredible amount of overreach.

I had some quite considerable material to put on the record in relation to that point, but I will not do that now. I will just make that point that the bill does consist of overreach, and invite the government, when the bill gets back into the lower house, to accept that this chamber has given the police the powers they wanted in relation to child exploitation material. We have given the police all of those powers unamended, and that includes the encryption powers, provided they relate to child exploitation material. That was the primary purpose of the bill.

The invitation that I would again extend to the government in relation to broader encryption powers is that that is a very good subject—in fact, I think an essential subject—for broad community consultation. The government has its YourSAy website where often these ideas are canvassed. I think that would be the way to progress this. Go back to the community and pose the question to South Australians: under what circumstances should you be required to hand over your digital keys and passwords?

It is a very important question and the government should approach any new law reform in this area with great caution and have the community on board. With those brief remarks, the position of the Greens has not changed and we will be insisting that the Legislative Council continues to support the amendments that we passed last time.

The Hon. F. PANGALLO: I rise to speak in support of the Hon. Mark Parnell and what he has outlined. Quite frankly, I endorse his words because I do not think that the provisions that have been outlined here would really sit comfortably with the community if they knew what the proposals were. In saying that, they would want to protect their privacy in many circumstances and this could actually threaten to breach many privacy provisions that they would expect would be protected as their personal property. With that, I endorse what the Hon. Mark Parnell has put to the chamber today and we look forward to a response from the government and perhaps another version of it coming into the chamber that we could consider.

The Hon. J.A. DARLEY: For the record, I indicate that I will be supporting the Parnell comments and will be insisting on the amendments.

The Hon. K.J. MAHER: We will be voting the same way as the Hon. Mark Parnell and insisting on the amendments that we have previously made.

The Hon. R.I. LUCAS: Some might find it hard to believe that I am ever the pragmatist and realist, and I can count to a majority in this chamber, but it does not appear, on this particular occasion, that a majority is with the government, so the government will acknowledge the majority in the council and we will not be seeking to divide on this particular motion.

Motion negatived.

The Hon. R.I. LUCAS: I move:

That the council does not insist on its amendment No. 3 and agrees to the alternative amendment made by the House of Assembly in lieu thereof and the consequential amendment.

Speaking to that, again, I acknowledge that my advice from the Attorney-General is that the majority of the council is unlikely to agree to the government's position on this particular amendment as well.

Motion negatived.