SA Introduces Proposed Legislation on Child Exploitation and Encrypted Material

Thursday 5 October 2017 @ 11.53 a.m. | Crime | Judiciary, Legal Profession & Procedure

On 27 September the SA Attorney-General, the Honourable JR Rau (the AG), introduced into the SA Legislative Assembly the Statutes Amendment (Child Exploitation and Encrypted Material) Bill 2017 (the Bill). The proposed legislation will make it an offence to run websites have child exploitation material ("CEM"), even without being in possession of offensive material and people convicted of running child exploitation material websites will face up to 10 years jail under the proposed new laws. Further, the proposed laws will also target aspects of technological advancement which increasingly prevent police and law enforcement from gaining access to websites and files due to the use of sophisticated password and encryption technology.

In Detail

The Bill proposes to amend four Acts; the Child Sex Offenders Registration Act 2006 (SA); the Criminal Law Consolidation Act 1935 (SA); the Evidence Act 1929 (SA); and the Summary Offences Act 1953 (SA).

The Bill proposes, according to the AG's second reading speech, to:

". . . establish new offences to deal with administering or facilitating the use or establishment of child exploitation material websites and provide 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".

The new offences proposed by the Bill draw on the model introduced by Victoria in the Crimes Amendment (Child Pornography and Other Matters) Act 2015 and, according to the AG, are also similar to offences in the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 (Cth), introduced to the Commonwealth Parliament on 13 September 2017. Further, the AG states in his second reading speech that: "the new State and Commonwealth offences are intended to be complementary in this important area."

The Bill proposes to addresses the omission in current SA police powers of a "general power in SA" to compel the provision of a password or other means of access to encrypted or otherwise restricted access material. In this respect the proposed laws are said to draw on models that allow the police to compel a suspect or third party to provide information or assistance (such as password/s or fingerprint) to access the encrypted or restricted access computer material. 

The power to compel a suspect or third party to provide access to encrypted material is provided to a Magistrate in light of the sensitivity of the power. The AG said in his second reading speech:

"While the notion of compelled access to protected computer or online material may be perceived by some as intruding on important considerations of privacy and confidentiality, it is a necessary measure to support the investigation and prosecution of CEM offending and other modern crime. The digital castle cannot be absolute."

Penalties under the new offences will include:

  • for people found to be administering illicit websites - up to ten years in jail;
  • some suspects facing up to five years in jail if they fail to comply with an order to provide information or assistance to access encrypted or restricted records.
  • a proposed new "cyber obstruction" offence that will see offenders jailed for up to five years if an associate of the accused deletes encrypted records where a device has been seized and an order either has been/or is about to be made, requiring access.

Comments by Relevant Ministers

In a media release the AG has said that:

"The Government must do all [it] can to protect vulnerable individuals from sexual exploitation and abuse. . . . These changes will ensure that people who seek to exploit or abuse children for the sexual gratification of others are held to account for their appalling actions. . . . It will enable people who administer or manage these websites, who may not necessarily be in possession of the material itself, to be punished".

In the same media release the Minister for Police has commented:

"These laws will help Police keep pace with constantly evolving nature of technology and new forms of offending. . . . The changes will ensure we can prosecute those abhorrent individuals and online groups who administer sites that actively encourage the abuse of children."

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Statutes Amendment (Child Exploitation and Encrypted Material) Bill 2017 and supporting materials including second reading speech as reported in the TimeBase LawOne Service.

Stronger laws to protect children from exploitation [Media Release SA AG]

Suspected criminals must reveal computer passwords or go to jail under proposed laws [The Advertiser]

SA law to force passwords from suspects [SBS News]

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