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House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
2019-04-02 Daily Xml
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Bills

Statutes Amendment (Child Exploitation and Encrypted Material) Bill

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 21 March 2019.)

Amendment No. 1:

The Hon. V.A. CHAPMAN: When we were last here, I indicated that we were awaiting some information from South Australia Police. As I have now received that, I will provide that information to the committee. I have indicated that to the opposition so that they may be fully informed in relation to their consideration of the amendments from the other place.

Members might recall that the government motion has already indicated a rejection of a number of amendments made to the bill in the Legislative Council, proposing an alternate amendment and making a consequential amendment to ensure that police have the appropriate powers for serious offences beyond child exploitation offences, as limited by the Legislative Council. Further, I have also advised that the government motion accepts those Legislative Council amendments removing ICAC from the bill. Before turning to each motion as indicated, there are examples of some of the offences we are proposing to include in the definition of 'serious offence'.

SAPOL have provided the following advice. For the offence against section 44 of the Summary Offences Act, unlawful use of computer system: SAPOL undertook an investigation concerning a number of students at a secondary school who unlawfully accessed the school computer servers using unlawfully obtained passwords, which required devices to be seized by the police and accessed for forensic examination. Of note, the devices in this case were encrypted but the students provided passwords to their encrypted devices—iPads and laptop computers—used to commit the offences. If the students in this case had not provided the passwords to police, police would not have been able to investigate and secure the evidence in this matter.

For the offence against section 44A of the Summary Offences Act, which is the unauthorised impairment of data: the skimming of ATM cards at the ATM is an example of this type of offence to then replicate the card and use it illegally. Three foreign nationals were arrested in the Adelaide metropolitan area in relation to ATM skimming offences from banks at various locations across South Australia. During the course of the investigation, police seized a number of mobile phones, laptops and iPads, which were suspected of containing multiple victim credit card details. In this case, police were unable to access this evidence on the devices, as they were encrypted. This resulted in a loss of moneys by victims, as the details of credit cards that were skimmed were held on the devices and sent to Europe, replicated and used illegally.

For the offence against section 86E of the Criminal Law Consolidation Act, that is, the use of a computer with intention to commit, or facilitate the commission of, an offence: an outlaw motorcycle gang member was arrested for possession of a Glock handgun and ammunition purchased from a darknet marketplace. Mobile phones and numerous laptop computers were seized, but police were unable to extract and examine evidence, as all devices were encrypted. Access to content could have provided evidence in support of these offences and other offences, as information indicated there was also evidence on the devices of procurement of illicit drugs from the darknet.

For an offence against 86F of the Criminal Law Consolidation Act, that is, use of a computer to commit, or facilitate the commission of, an offence outside the state: although incidents constituting an offence against this section have been reported numerous times to SAPOL during the last couple of years, investigations have not been able to identify a suspect for these matters to date. Therefore, investigating police have not been provided the circumstances to seek access to encrypted electronic devices; however, it is considered inevitable that such circumstances will occur for this offending.

For an offence against section 86G of the Criminal Law Consolidation Act, that is, unauthorised modification of computer data: a South Australian person was investigated in respect of manipulation of data of associates' superannuation accounts to which they were a beneficiary. The person involved consented to access to his devices and made full admissions to the offending, which assisted police investigating the matter. Had this person not consented, police would not have been able to obtain access to that electronic device.

For the offence against section 86H of the Criminal Law Consolidation Act, that is, unauthorised impairment of electronic communication: SAPOL was involved in a global operation involving South Australian entities engaged in distribution denial of service offences. This is an attack that floods a computer or website with data causing it to overload and prevent it from functioning properly. This type of attack possibly is more frequently targeted at businesses or government agencies, rather than at individuals.

Three search warrants were executed relative to such a matter, which targeted South Australian and international businesses and citizens. In these matters, mobile phones and portable computers belonging to the suspects were locked and/or encrypted. Police were able to access the evidence to support an investigation, as the suspects consented. Again, without their consent, no charges would have been laid relative to these matters.

For an offence against section 86I of the Criminal Law Consolidation Act, that is, possession of computer viruses, etc., with intent to commit serious computer offence: SAPOL has not received reports of this offence and therefore is unable to provide details of this type of offending. I will outline a further example from the South Australian District Court sentencing remarks, which may be helpful to the committee.

A person was charged and found guilty of one count of operating a restricted access computer system against section 44(1) of the Summary Offences Act and two counts of modifying computer data to cause harm or inconvenience against section 86G of the Criminal Law Consolidation Act. The offender was employed for six years as a technology support officer at a non-profit organisation. Before resigning, the offender perceived that his or her relationship with management had deteriorated. Following resignation, there was a series of unusual events on the organisation's computer network—for example, files being deleted, calendar and email changed or forwarded to unintended recipients.

After seeing his or her previous job advertised, the offender committed the offences hoping that by disrupting the IT functions of the organisation management would appreciate the importance of his or her previous work. It was proven that the offender conducted remote logons to the organisation's server using various user names belonging to different employees. Similarly, unauthorised access to the organisation's Outlook web access was established. Initially, the offender hoped to cause minimal inconvenience, but later they became embroiled and fixated on the idea that he or she had been wronged and committed more serious breaches.

A further example is provided from the South Australian Magistrates Court. Here, a person was charged and pleaded guilty to one count of operating a restricted access computer system against section 44(1) of the Summary Offences Act. The offender was made redundant by a company. The offence occurred 12 months after that. The offender accessed the webmail system with a user name and password belonging to a different employee and sent emails to two employees with the word 'idiot' in the contents description and then deleted them from sent items. The offender accessed a document attached to an email regarding a performance review and salary information of a current employee.

I hope that information provides some assistance to the committee because, not unreasonably, questions were raised about real-life examples of some of the offences we are seeking to have the benefit of this new encryption law. What is clear is this: we are on the early part of a wave in relation to cybersecurity for data that ought to be protected for the privacy of individuals and for the operation of governments and the like and, in addition to that, the question of how that might be used to the detriment of other agencies and businesses.

That is something that, as a new government, we are also participating in with national agencies as to how we best protect government data and create laws to best protect individuals and people in the community, including unions—which I mention for the member for Cheltenham—which hold data and which ought to have some capacity to protect. These are very important when it comes to dealing with new and emerging ways that we, as a government and as a parliament, need to ultimately address.

In addition to that, we also have to look at those who commit these offences and how we might best assist those who undertake the investigations. In our state, of course, that is principally SAPOL. They need to have access to this material. I will not repeat all the reasons why they have sought this, but let me just make one point very clear: we are dealing, in the criminal elements, with those who have the capacity, knowledge and tools not only to access data but to delete it and frustrate investigations by SAPOL, in addition to the damage they might do commercially or personally to others.

It is all very well to say that there are other forms of redress—for individuals, they might sue for damages and the like—but the reality is that we need to ensure that our investigative agency has the capacity, firstly, to preserve that material by being able to take possession of it and, secondly, to access it so that they can undertake their investigations competently. I hope that assists the committee in relation to that. I propose that the House of Assembly disagree with amendment No. 1 for the reasons I outlined earlier.

Motion carried.

Amendment No. 2:

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

That the Legislative Council's amendment No. 2 be agreed to.

I indicate that this is the first amendment that relates to the removal of ICAC from the bill, which we accept for the reasons I have outlined.

Motion carried.

Amendment No. 3:

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

That the House of Assembly disagrees with the amendment made by the Legislative Council and makes the following amendment in lieu thereof:

Clause 11, page 7, lines 36 to 39 [inserted section 74NB, definition of serious offence]—

Delete the definition of serious offence and substitute:

serious offence means—

(a) an offence listed in Schedule 3; or

(b) an offence prescribed by the regulations for the purposes of this definition.

I indicate that the rejection of the Legislative Council's amendment is based on the fact that it weakens the bill and limits the applicability of the investigative capacity for child exploitation offences. The alternative amendment reinstates the application of the bill to the broader range of offences.

Motion carried.

Amendments Nos 4 to 7:

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

That the Legislative Council's amendments Nos 4 to 7 be agreed to.

I confirm that these amendments relate to the removal of ICAC from the bill, which we accept for the reasons I have previously outlined.

Motion carried.

Amendments Nos 8 to 11:

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

That the Legislative Council's amendments Nos 8 to 11 be disagreed to.

Again, this rejection is based on the amendments to the bill in the Legislative Council. We say it weakens the bill and limits the application to child exploitation offences. Again, for the reasons I have set out previously, I propose that the House of Assembly disagree with amendments Nos 8 to 11.

Motion carried.

Amendment No. 12:

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

That the Legislative Council's amendment No. 12 be agreed to.

The government motion accepts these amendments made, again, on the basis that it removes ICAC from the bill.

Motion carried.

Amendment No. 13:

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

That the Legislative Council's amendment No. 13 be disagreed to.

This is particularly as it rejects those amendments made to the bill that we say weaken the bill and limit the application to child exploitation offences. For the reasons I have outlined earlier, we propose that they therefore be disagreed to.

Motion carried.

Amendments Nos 14 to 19:

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

That the Legislative Council's amendments Nos 14 to 19 be agreed to.

Again, I indicate support for the removal of ICAC from the bill, which, for the reasons I have indicated earlier, we agree to their deletion.

Motion carried.

Amendments Nos 20 to 22:

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

That the Legislative Council's amendments Nos 20 to 22 be disagreed to.

These directly relate to the proposal to restrict and limit application to child exploitation offences and, as indicated, for the reasons outlined, we consider this weakens the bill and therefore recommend disagreement.

Motion carried.

Amendments Nos 23 and 24:

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

That the Legislative Council's amendments Nos 23 and 24 be agreed to.

Again, these relate directly to the removal of ICAC from the bill, which, for the reasons previously outlined, we accept.

Motion carried.

Amendments Nos 25 and 26:

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

That the Legislative Council's amendments Nos 25 and 26 be disagreed to.

These, again, relate to the limitation that the Legislative Council imposes to restrict the application to child exploitation offences. That, in our view, for the reasons outlined, weakens the bill and therefore I propose disagreement.

Motion carried.

Amendments Nos 27 to 29:

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

That the Legislative Council's amendments Nos 27 to 29 be agreed to.

These directly relate to the removal of ICAC from the bill, which, for reasons previously outlined, we accept.

Motion carried.

Consequential amendment to amendment No. 3:

The CHAIR: Attorney, you will speak to the consequential amendment?

The Hon. V.A. CHAPMAN: Yes.

The CHAIR: The Clerk is advising me that you do not have to go through the whole lot; you can just speak to the amendment, move the question.

The Hon. V.A. CHAPMAN: Thank you for that invitation to be brief.

The CHAIR: It was not necessarily that, Attorney.

The Hon. V.A. CHAPMAN: I have not usually acceded to that in the past. I do not think I will set a precedent today.

The CHAIR: You can be as short or as long as you like, Attorney.

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

That the House of Assembly makes the following consequential amendment:

New clause, page 16, after line 17—After clause 11 insert:

12—Insertion of Schedule 3

After Schedule 2 insert:

Schedule 3—Serious offences (section 74BN(1))

1—Serious offences

For the purposes of the definition of serious offence in section 74BN(1), the following are serious offences:

(a) the following offences under this Act:

(i) an offence under section 26B, 26C, 26D or 26DA;

(ii) an offence under section 37;

(iii) an offence under section 44 or 44A;

(b) the following offences under the Controlled Substances Act 1984:

(i) an offence under section 32;

(ii) an offence under section 33F or 33G;

(iii) an offence under section 33GA, 33GB or 33H;

(c) the following offences under the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth:

(i) an offence under Division 72 Subdivision A;

(ii) an offence under Part 5.3;

(iii) an offence under Part 5.5;

(d) the following offences under the Criminal Law Consolidation Act 1935:

(i) an offence under section 11, 12 or 12A;

(ii) an offence under section 19;

(iii) an offence under section 19AA;

(iv) an offence under section 20A;

(v) an offence under section 34A or 34B;

(vi) an offence under section 39 or 40;

(vii) an offence under section 48, 48A or 49;

(viii) an offence under section 50 or 51;

(ix) an offence under section 56;

(x) an offence under section 58, 59, 60 or 61;

(xi) an offence under section 63, 63A, 63AB or 63B;

(xii) an offence under section 66, 67 or 68;

(xiii) an offence under section 80;

(xiv) an offence under section 83CA;

(xv) an offence under section 83E;

(xvi) an offence under section 83GC, 83GD or 83GE;

(xvii) an offence under section 86E, 86F, 86G, 86H or 86I;

(xviii) an offence under section 138;

(xix) an offence under section 139A;

(xx) an offence under section 144C or 144D;

(xxi) an offence against a corresponding previous enactment substantially similar to an offence referred to in a preceding subparagraph;

(e) the following offences under the Firearms Act 2015:

(i) an offence under section 9;

(ii) an offence under section 10 or 11;

(iii) an offence under section 22;

(iv) an offence under section 37 or 38;

(v) an offence under section 39 or 40;

(vi) an offence under section 45;

(f) an offence under section 18 of the Terrorism (Police Powers) Act 2005

I will just quickly read through the references, because when pieces of legislation do not identify what the actual nature of the conduct that is being either legalised or identified as conduct that is offensive for the purposes of punishment, I think it is important that that occurs at least somewhere on the record.

It is one of these new, modern things that happens in drafting where we get a reference to a section number. I am told that is for the expediency of ensuring that where there are changes to section numbers of criminal law it can immediately apply without the need to make other amendments. However, for people like me who like to read a piece of legislation and know exactly what the offending behaviour is, I like some description. So, for the benefit of the committee, I will quickly run through the offences that we are referring to.

The insertion of new schedule 3 will define 'serious offences' as follows. The following offences in the Summary Offences Act 1953 are:

part 5A—Filming and sexting offences;

section 26B—Humiliating or degrading filming;

section 26C —Distribution of invasive image;

section 26D—Indecent filming;

section 26DA—Threat to distribute invasive image or image obtained from indecent filming;

part 7A—Extremist material;

section 37—Possession, production or distribution of extremist material;

part 9—Offences with respect to property;

section 44—Unlawful operation of computer system; and

section 44A—Unauthorised impairment of data held in credit card or on computer disk or other device.

The following offences in the Controlled Substances Act 1984:

subdivision 1—Trafficking in controlled drugs;

section 32—Trafficking;

division 3—Offences involving children and school zones;

section 33F—Sale, supply or administration of controlled drug to child;

section 33G—Sale, supply or administration of controlled drug in school zone;

section 33GA—Sale of equipment to child for use in connection with consumption of controlled drugs;

section 33GB—Sale of instructions to a child (that is, in relation to drugs); and

section 33H—Procuring child to commit offence.

And the following offences in the Commonwealth Criminal Code:

division 72, subdivision A—International terrorist activities using explosive or lethal devices;

part 5.3—Terrorism offences;

part 5.5—Offences of foreign incursions with the intent of engaging in hostile activities.

And the following offences in the Criminal Law Consolidation Act 1935. I ask members to think about this list, as I do of the others, and how significant they are. Members should ask themselves, as I read through them, whether they think they are important enough to give the South Australian police the right to be able to demand an encryption to get access to investigate these offences and bring to account those who are responsible. The offences are:

division 1—Homicide;

section 11—Murder;

section 12—Conspiring or soliciting to commit murder;

section 12A—Causing death by an intentional act of violence;

division 4—Unlawful threats;

section 19—Unlawful threats;

division 5—Stalking;

section 19AA—Unlawful stalking;

division 7AA—Choking, etc., in a domestic setting;

section 20A—Choking, suffocation or strangulation in a domestic setting;

division 8A—Child marriage;

section 34A—Bringing child into state for marriage;

section 34B—Removing child from state for marriage;

division 9—Kidnapping and unlawful child removal;

section 39—Kidnapping;

section 40—Unlawful removal of child from jurisdiction;

division 11—Rape and other sexual offences;

section 48—Rape;

section 48A—Compelled sexual manipulation;

section 49—Unlawful sexual intercourse;

section 50—Persistent sexual abuse of child;

section 51—Sexual exploitation of person with a cognitive impairment;

section 56—Indecent assault;

section 58—Acts of gross indecency;

section 59—Abduction of male or female person;

section 60—Procuring sexual intercourse;

section 61—Householder, etc., not to permit unlawful sexual intercourse on premises;

division 11A—Child exploitation material and related offences;

section 63—Production or dissemination of child exploitation material;

section 63A—Possession of child exploitation material;

section 63AB—Offences relating to websites;

section 63B—Procuring child to commit indecent act, etc.;

section 63C—Material to which division relates;

division 12—Commercial sexual services and related offences;

section 66—Sexual servitude and related offences;

section 67—Deceptive recruiting for commercial sexual services;

section 68—Use of children in commercial sexual services;

division 16—Abduction of children;

section 80–—Abduction of child under 16 years;

section 83CA—Information for terrorist acts;

division 1—Participation in criminal organisation;

section 83E—Participation in criminal organisation;

division 2—Public places, prescribed places and prescribed events;

section 83GC—Participants in criminal organisation being knowingly present in public places;

section 83GD—Participants in criminal organisation entering prescribed places and attending prescribed events;

section 83GE—Participants in criminal organisation recruiting persons to become participants in the organisation;

part 4A—Computer offences;

section 86E—Use of computer with intention to commit, or facilitate the commission of, an offence;

section 86F—Use of computer to commit, or facilitate the commission of, an offence outside the state;

section 86G—Unauthorised modification of computer data;

section 86H—Unauthorised impairment of electronic communication;

section 86I—Possession of computer viruses, etc., with intent to commit serious computer offence;

division 4—Money laundering and dealing in instruments of crime;

section 138—Money laundering;

division 5A—Dishonest communication with children;

section 139A—Dishonest communication with children;

part 5A—Identity theft;

section 144C—Misuse of personal identification information; and

section 144D—Prohibited material.

The following offences are in the Firearms Act 2015. I remind the committee that they were specifically requested by SAPOL to be included when we considered this expanded application. The offences include:

section 9—Possession and use of firearms;

section 10—Dealers;

section 11—Employment of persons by licensed dealers;

section 22—Trafficking in firearms;

section 37—Manufacture of firearms, firearm parts or sound moderators;

section 38—Alteration of firearms;

section 39—Possession, etc., of sound moderator and certain parts of firearms. For the benefit of those who do not know what a sound moderator is, it is a silencer;

section 40—Possession, etc., of prohibited firearm accessory; and

section 45—Effect of firearms prohibition order.

Finally, the following offence in the Terrorism (Police Powers) Act 2002 is included:

section 18—Offences relating to exercise of powers.

I conclude by hoping to persuade the committee of the significance of these consequential amendments and the application to these offences. I have stood here for the last 16 years in opposition, prior to coming into government, and I can tell you that most of these laws were either introduced or modified by the then Labor government. They considered them to be so serious that we needed to legislate to make sure that they were either expanded to be contemporary or introduced to ensure that we protected citizens in relation to criminal conduct. In opposition, we provided support for the advancement of most of these, with or without amendment.

To think that we have strangulation offences, that we have quite contemporary law in relation to a number of these, which we have added to in the short time we have been in government, and that the opposition is saying, 'We will not support the police to have the tools to ensure that they can access the records, identify the evidence that is relevant and use it,' I am disgusted. I am absolutely disgusted by it.

I say to the committee: for those who are supporting this advance in relation to the bill being restored under this consequential amendment to its broader application, I thank you for considering that. For those who reject it, I wonder why they even considered that it was important for whatever good they did in government and the advance of protection of our children in relation to these matters, let alone those other vulnerable people who might be frail, aged or with cognitive impairment. They have just blown that away by ensuring the secrecy surrounding the gathering of evidence for the purposes of the proper prosecution to bring those who are guilty to account and to exclude those who are not guilty.

It is with a heavy heart that I know that there is still objection in this parliament to the application of this law, which I remind the house, except for firearms and a small number of offences that have been introduced under our government, was the base of a bill presented by the previous Labor government. I think they have gone into some kind of—I would not say a brain fade—complete change of consciousness as to what is important for the protection of our people. It seems to have been introduced as a result of losing an election, and now it is all about politics and no longer about people. Nevertheless, I move that the consequential amendment be accepted.

Motion carried.

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