Statutes Amendment (Child Exploitation and Encrypted Material) Bill

Second Reading

The Statutes Amendment (Child Exploitation and Encrypted Material) Bill 2018 amends the Child Sex Offenders Registration Act 2006, the Criminal Law Consolidation Act 1935, the Evidence Act 1929 and the Summary Offences Act 1953. This bill establishes new offences to deal with administering or facilitating the use or establishment of child exploitation material websites and 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.

As members may recall, this bill was introduced by the former government; however, like many other important pieces of legislation, it was not successfully passed through this parliament before the end of the last sitting year. Despite this, this government sees the bill as an extra tool in the toolkit to investigate and prosecute predators. 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 a dark side to these advances. The ease and manner in which people can communicate is being used for sophisticated criminal purposes. 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 such criminal behaviour.

Child exploitation material website administrators, and those hosting such websites, contribute to the proliferation of child exploitation material online, facilitating and promoting the exchange and distribution of child exploitation material. 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 child exploitation material websites, which can occur without actual possession of the child exploitation material.

There is a gap in the current law. Clearly, we need modern law for modern crimes. The bill introduces specific offences designed to criminalise the creation, promotion and use of child exploitation websites. These offences will carry a maximum penalty of 10 years' imprisonment, which is the same penalty that applies to most existing aggravated South Australian child exploitation material offences.

The first offence, in section 63AB(1), seeks to confront persons who create a website or websites, moderate contributions to it, manage or regulate membership and maintain the website. For example, a person would contravene this section if a person monitors traffic through the website and ensures the server hardware or software is running correctly. The offending extends to those who are aware that the website is being used for child exploitation material, in addition to those who intend it to be so used.

Section 63AB(5) creates an offence to promote or encourage another person to use a website that deals with child exploitation material. The word 'encourage' is given a deliberately broad meaning and includes 'suggest', 'requests', 'urge', 'induce' and 'demand'. The offence covers the promotion of child exploitation material websites through advertising and other means. It is envisaged that the term is broad enough to capture modern online traits of display or communication through the use of symbol and emoji.

Finally, section 63AB(7) creates an offence for providing information that will assist another person avoid or reduce the likelihood of apprehension for an offence involving child exploitation material. The offence seeks to capture those who facilitate others to use a website containing child exploitation material and assist avoiding detection—for example, the act of providing information or advice to others about how to use a website anonymously or, alternatively, providing advice about encrypting files containing child exploitation material would constitute an offence. Section 63D provides an incidental power of forfeiture introduced upon conviction of any child exploitation material offence.

The bill is drafted to ensure that there is little impact on legitimate internet service and website providers, requiring the elements of knowledge and intent, which legitimate providers will lack, and when the knowledge element does not arise, legitimate businesses have policies and procedures in place that will likely bring them squarely within the reasonable step defences of new offences. For consistency with existing similar child exploitation material offences, the bill provides that an offender convicted of the new child exploitation material 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 revictimisation, that is, the repeated viewing of child exploitation material if even for a lawful purpose. The incidental legislative changes will further enhance protection to the victims of child exploitation material offending.

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

The bill also introduces new investigative powers and procedures to assist police in the detection of offences made increasingly difficult by technological advances and sophisticated encryption programs. The increasing use of encryption programs enables offenders to protect evidence and offending material. SAPOL asserts that this is a significant problem in the investigation of child exploitation material offending, but it extends to many modern crimes, including terrorism, drug dealing, serious and organised crime, cyber fraud, theft, identity theft, revenge porn and cyber-facilitated abuse.

There is no general power in South Australia, unlike in 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. Part 5 of the bill inserts a procedure into the Summary Offences Act 1953 where a police officer or an investigator for ICAC can make an application to the Magistrates Court for an order that requires a person to provide necessary information or assistance. This is defined to include the provision of fingerprints and retinal or facial scans.

A magistrate is authorised to make an order if satisfied that there are reasonable grounds to suspect the data in question may afford evidence of a serious offence. The class of persons against whom such an order can be made is prescribed and intended to capture persons likely to have some form of relationship or contact with the offender and/or the device that would give them knowledge to assist. The timing of an application for an order to require access is flexible. It may either be before or after the execution of any search warrant.

The bill also addresses concerns around the preservation of data that can be remotely erased upon detection, whether by an accused or an associate. Section 74BT provides for a modified procedure where an application can be made to a magistrate in urgent circumstances (i.e. by telephone). Where an order is urgent, a police officer or ICAC investigator may require a person to attend or remain at a particular location for a maximum of four hours until an order is obtained. During that time, the person may be required not to use or access any form of electronic communication, other than to contact a legal practitioner for the purpose of obtaining legal advice.

Paragraph (c) sanctions the arrest and detention of a person for a maximum of four hours upon reasonable suspicion that a person will not comply with such requirements. Failure to comply with an order made under proposed sections 74BR and 74BT attracts a maximum penalty of five years' imprisonment. I refer members to section 74BW. Section 74BW(3) provides that, where investigators access data in search of material relating to one offence and find material relating to another possibly unrelated offence, they are entitled to seize and retain the material relating to the other offence and use it in any subsequent proceedings.

This reflects the position of general powers of search and seizure at both common law and at statute. There is nothing in the proposed bill to preclude or discourage police 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 section 74BQ. The intention of the new procedure to require assistance or information to access protected data, as set out in the proposed section 74BR(6), is that it should clearly apply to offences whether committed before or after the act came into effect.

The bill includes provision for the use of criminal intelligence in applications for an order and the requirement for the Magistrates Court to protect such confidential material if its public release 'could reasonably be expected to prejudice criminal [proceedings], 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 common provision in situations such as this. The bill does not preclude or discourage any claim the public interest immunity that may also arise.

In support of the application procedure, section 74BX inserts three additional offences to address concerns around a person impeding an investigation by tampering with data. Subsection (1) provides that a person is guilty of an offence if the person alters, conceals or destroys data held on a device, which is subject to an order, or could reasonably be expected to be evidence.

Subsection (2) provides that a person is guilty of an offence if the person is served with an order and alters, conceals or destroys the data, or causes another person to alter, conceal or destroy the data. This offence is designed to apply in situations where a device has been seized and an application for an order has been made, or is impending, and the person or an associate of the accused deletes the data.

Subsection (3) is designed to address situations where a person purports to provide access to data by providing a means of access to police—whether voluntarily or in compliance with an order sought—which, instead of providing access, deletes the data in question. Reflecting the deliberate nature of this conduct, a 10-year maximum penalty applies.

The notion of compelled access to protect a computer or online material may be perceived by some as intruding on important considerations of privacy. To address these concerns, the bill imposes recording and reporting requirements upon the Commissioner of Police and the Independent Commissioner Against Corruption in addition to a statutory review clause. This will afford the government and parliament an opportunity to review the proposed powers and reconsider both their value and integrity.

This is complex law. It is not unique in Australia, but it does attract considerable review by members of the parliament. I urge them to read the material carefully. I look forward to debate on the same, and I will be commending the bill for the positive consideration by members. I seek leave to insert the explanation of clauses into Hansard without reading the same.

Leave granted.

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). Under proposed section 74BN(3), the information and assistance required may include the provision of fingerprints and retinal or facial scans.

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, as it is intended that the order apply to possibly multiple layers of protection in relation to particular data, the order need not specify the particular information or assistance that is to be provided. 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 so that an application for an order may be made (and if so, served on the person), or for the period of 4 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 4 hours or until an urgent application is made (and if so, served on the person), 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 and operation 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. A police officer or investigator may be assisted by such persons in the exercise of powers pursuant to an order as the officer or investigator considers necessary in the circumstances.

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. The person must intend, or be reckless as to whether in so doing, the investigation of the commission of an offence by another person is impeded or it 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. The person must intend, or be 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. In so doing, the person must intend or be recklessly indifferent as to whether, the investigation of the commission of an offence is impeded or prejudiced.

74BY—Reporting

This clause sets out the annual reporting requirements of the Police Commissioner and the Independent Commissioner Against Corruption in relation to the operation of proposed new Part 16A. This includes information on the number of applications for orders made, the number of orders granted, withdrawn or refused, the types of serious offences in relation to which the orders were granted, a general description of the types of computers and devices in relation to which information or assistance was provided under each order and whether any charges were laid as a result of evidence obtained as a result of an order. A copy of the report must be laid before both Houses of Parliament within 12 days of having been received by the Minister.

74Z—Review of Part

This clause provides that a review of the operation and effectiveness of proposed new Part 16A must be conducted by a retired judicial officer after 3 years of its being in operation. A copy of the report must be laid before both Houses of Parliament within 12 sitting days of having been received by the Minister.

Debate adjourned on motion of Mr Brown.