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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Child Exploitation and Encrypted
Material) Bill 2017
A BILL FOR
An Act to amend the
Child
Sex Offenders Registration Act 2006
; the
Criminal
Law Consolidation Act 1935
; the
Evidence
Act 1929
and the
Summary
Offences Act 1953
.
Contents
Part 2—Amendment of Child Sex
Offenders Registration Act 2006
4Amendment of Schedule 1—Class 1 and 2
offences
Part 3—Amendment of Criminal Law
Consolidation Act 1935
5Amendment of section
62—Interpretation
63ABOffences
relating to websites
7Amendment of section 63C—Material to
which Division relates
Part 4—Amendment of Evidence
Act 1929
9Amendment of section 67H—Meaning of
sensitive material
10Amendment of section 69—Order for
clearing court
Part 5—Amendment of Summary Offences
Act 1953
Part 16A—Access to
data held electronically
74BOInteraction
with other Acts or laws
74BPExtraterritorial operation
74BQOrder not
required if information or assistance provided voluntarily
74BROrder to provide information or
assistance to access data held on computer etc
74BTOrder required in urgent
circumstances
74BXImpeding
investigation by interfering with data
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Child Exploitation and
Encrypted Material) Act 2017.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Child Sex Offenders Registration
Act 2006
4—Amendment
of Schedule 1—Class 1 and 2 offences
Schedule 1, Part 3, clause 3—after paragraph (g) insert:
(ga) an offence against section 63AB(1), (5) or (7) of the
Criminal
Law Consolidation Act 1935
(Offences relating to websites);
Part 3—Amendment
of Criminal Law Consolidation
Act 1935
5—Amendment
of section 62—Interpretation
(1) Section 62—before the definition of child exploitation
material insert:
administering a website includes—
(a) building, developing or maintaining the website; and
(b) moderating contributions to, or content on, the website; and
(c) managing or regulating membership of, or access to, the website;
and
(d) monitoring traffic through the website; and
(e) an activity or function of a prescribed kind,
but does not include an activity or function of a kind excluded by the
regulations from the ambit of this definition;
(2) Section 62—after the definition of child exploitation
material insert:
deal with child exploitation material
includes—
(a) view, upload, download or stream child exploitation material;
and
(b) make child exploitation material available for viewing, uploading,
downloading or streaming; and
(c) facilitate the viewing, uploading, downloading or streaming of child
exploitation material;
(3) Section 62—after the definition of disseminate
insert:
encourage includes suggest, request, urge, induce and
demand;
hosting a website means—
(a) providing storage space or other resources on a server for the
website; or
(b) an activity or function of a prescribed kind,
but does not include an activity or function of a kind excluded by the
regulations from the ambit of this definition;
(4) Section 62—after the definition of prurient
purpose insert:
relevant industry regulatory authority means a person or body
declared to be a relevant industry regulatory authority for the purposes of
section 63AB(3)(d);
website includes an online forum, group or social media
platform.
After section 63A—insert:
63AB—Offences relating to
websites
(1) A person
commits an offence if—
(a) the person hosts or administers, or assists in the hosting or
administration of, a website; and
(b) the website is used by another person to deal with child exploitation
material; and
(c) the person—
(i) intends that the website be used by another person to deal with child
exploitation material; or
(ii) is aware that the website is being used by another person to deal
with child exploitation material.
Maximum penalty: Imprisonment for 10 years.
(2) It is a defence
to a charge of an offence against
subsection (1)
to prove that the person, on becoming aware that the website was being
used, or had been used, by another person to deal with child exploitation
material, took all reasonable steps, in the circumstances, to prevent any person
from being able to use the website to deal with child exploitation
material.
(3) In determining whether a person has taken all reasonable steps, in the
circumstances, for the purposes of
subsection (2)
, regard must be had as to whether the person, as soon as it was reasonably
practicable, did any of the following:
(a) shut the website down;
(b) modified the operation of the website so that it could not be used to
deal with child exploitation material;
(c) notified a police officer that the website was being, or had been,
used to deal with child exploitation material, and complied with any reasonable
directions given by a police officer as to action to be taken by the person in
relation to that use of the website;
(d) notified a relevant industry regulatory authority that the website was
being, or had been, used to deal with child exploitation material, and complied
with any reasonable directions given by the authority as to action to be taken
by the person in relation to that use of the website.
(4) In proceedings for an offence against
subsection (1)
, it is not necessary to prove the identity of the person that was using
the website to deal with child exploitation material.
(5) A person
commits an offence if—
(a) the person encourages another person to use a website; and
(b) the person intends that the other person use the website to deal with
child exploitation material.
Maximum penalty: Imprisonment for 10 years.
(6) In proceedings for an offence against
subsection (5)
, it is not necessary to prove—
(a) the identity of the person encouraged to use the website to deal with
child exploitation material; or
(b) that another person in fact used the website to deal with child
exploitation material; or
(c) if another person did in fact use the website, that it was the
person's encouragement that caused the other person to do so.
(7) A person
commits an offence if—
(a) the person provides information to another person; and
(b) the person intends the other person to use the information for the
purpose of avoiding or reducing the likelihood of apprehension for an offence
committed by that other person against this Division.
Maximum penalty: Imprisonment for 10 years.
(8) In proceedings for an offence against
subsection (7)
, it is not necessary to prove—
(a) the identity of the person to whom the information was provided;
or
(b) that the information was actually used by the other person.
7—Amendment
of section 63C—Material to which Division relates
(1) Section 63C(2)—after "this Division" insert:
(other than an offence against section 63AB(7))
(2) Section 63C(2)—after "possession of" insert:
, or dealing with,
(3) Section 63C(2a)—after "this Division" insert:
(other than an offence against section 63AB(7))
(4) Section 63C(2a)—after "possession of" insert:
, or dealing with,
(5) Section 63C(2b)—after "this Division" insert:
(other than an offence against section 63AB(7))
(6) Section 63C(2b)—after "possession of" insert:
, or dealing with,
(7) Section 63C(3)—after "this Division" insert:
(other than an offence against section 63AB(7))
(8) Section 63C(3)—after "possession of" insert:
, or dealing with,
(9) Section 63C(4)—after "this Division" insert:
(other than an offence against section 63AB(7))
(10) Section 63C(4)(a)—after "dissemination of" insert:
, or dealing with,
After section 63C insert:
63D—Forfeiture
(1) If a court finds a
person guilty of an offence against this Division, 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.
(2) A court making an order for forfeiture of any equipment, device or
other item under
subsection (1)
may, if it thinks fit, allow the offender or any other person an
opportunity to retrieve (in accordance with any directions of the court)
specified records, or other material not involved in the commission of the
offence from the equipment, device or item before it is so forfeited.
Part 4—Amendment
of Evidence
Act 1929
9—Amendment
of section 67H—Meaning of sensitive material
Section 67H(1)—after paragraph (a) insert:
(ab) child exploitation material (within the meaning of section 62 of
the
Criminal
Law Consolidation Act 1935
); and
10—Amendment
of section 69—Order for clearing court
Section 69—after subsection (1a) insert:
(1b) Where child exploitation material (within the meaning of
section 62 of the
Criminal
Law Consolidation Act 1935
) is adduced, or is to be adduced, as evidence in proceedings before the
court, an order must be made under subsection (1) requiring all persons
except—
(a) those whose presence is required for the purposes of the proceedings;
and
(b) any other person who, in the opinion of the court, should be allowed
to be present,
to absent themselves from the place in which the court is being held while
the evidence is adduced.
Part 5—Amendment
of Summary Offences Act 1953
After section 74BM—insert:
Part 16A—Access to data held
electronically
74BN—Interpretation
(1) In this Part—
computer includes a tablet, mobile phone and any other
electronic device that is capable of connecting to the internet;
criminal intelligence means information relating to actual or
suspected criminal activity (whether in this State or elsewhere) the disclosure
of which could reasonably be expected to prejudice criminal investigations, 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;
data includes—
(a) information in any form; and
(b) any program or part of a program;
data storage device means any article, material or thing (for
example, a disk or file server) from which information is capable of being
reproduced, with or without the aid of any other article or device;
serious offence means—
(a) an indictable offence; or
(b) an offence with a maximum penalty of 2 years imprisonment or
more.
(2) For the purposes of this Part, data held on a computer
or data storage device, includes data held on a remote computer or remote data
storage device (for example, a cloud storage system) that is accessible from the
computer or data storage device.
74BO—Interaction with other Acts or
laws
The provisions of this Part are in addition to, and do not limit or
derogate from, this or any other Act or law.
74BP—Extraterritorial
operation
It is the intention of the Parliament that this Part apply within the State
and outside the State to the full extent of the extraterritorial legislative
capacity of the Parliament.
74BQ—Order not required if information or
assistance provided voluntarily
An order is not required under this Part if information or assistance of a
kind referred to in
section 74BR(1)
is, at the request of a police officer or otherwise, provided by a person
voluntarily, and any evidence or information obtained by 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
(1) A magistrate may,
on application by a police officer, make an order requiring a person (the
specified person) to provide any information or assistance that is
reasonable or necessary to allow a police officer to do 1 or more of the
following:
(a) access, examine, or perform any function in relation to, any data held
on any computer or data storage device;
(b) copy data held on any computer or data storage device to another
computer or data storage device;
(c) reproduce or convert data held on any computer or data storage device
into documentary form or another form that enables it to be understood by the
police officer.
(2) The specified person is not a party to proceedings under this
section.
(3) The magistrate may make the order if satisfied that—
(a) there are reasonable grounds to suspect that data held on a computer
or data storage device may afford evidence of a serious offence; and
(b) the specified person is—
(i) reasonably suspected of having committed a serious offence in relation
to which the order is sought; or
(ii) the owner or lessee of the computer or data storage device;
or
(iii) an employee of the owner or lessee of the computer or data storage
device; or
(iv) a person engaged under a contract for services by the owner or lessee
of the computer or data storage device; or
(v) a person who uses or has used the computer or data storage device;
or
(vi) a person who is, or was, a system administrator for the system
including the computer or data storage device; and
(c) the specified person has relevant knowledge of—
(i) the computer, data storage device or a computer network of which the
computer or device forms or formed a part; or
(ii) measures applied to protect data held on the computer or data storage
device.
(4) The order—
(a) need not identify any particular computer or data storage device in
respect of which it applies; and
(b) may specify the period within which the specified person must provide
the information or assistance; and
(c) may provide that the specified person provide the information or
assistance at a place at which a computer or data storage device has been, or is
to be, lawfully removed; and
(d) may specify any conditions to which the requirement to provide the
information or assistance is subject.
(5) A statement of the grounds on which an order has been made must not
contain information, the disclosure of which would be inconsistent with a
decision of a magistrate under
section 74BU
.
(6) An order may be made in respect of a serious offence suspected of
having been committed, or alleged to have been committed, before or after the
commencement of this Part.
74BS—Application for order
(1) An application for
an order must—
(a) state the applicant's full name and official details; and
(b) state the name of the person to whom the order will apply;
and
(c) state the nature of the serious offence that is suspected to have been
committed, and in relation to which the order is required; and
(d) state the grounds on which the applicant suspects that the offence has
been committed; and
(e) state the grounds on which the applicant suspects that any data held
on a computer or data storage device is or may be relevant to the offence;
and
(f) state the grounds on which the applicant suspects that the specified
person has knowledge relevant to gaining access to any data held on a computer
or data storage device; and
(g) include any other prescribed information.
(2) Subject to
section 74BT
, an application for an order must be accompanied by an affidavit made by
the applicant, verifying the grounds of the application.
74BT—Order required in urgent
circumstances
(1) If a police officer considers that an order under this Part is
required urgently, either because of serious or urgent circumstances, or to
prevent concealment, alteration, loss or destruction of data held on a computer
or data storage device that may afford evidence of a serious offence, the police
officer may make an application in accordance with
subsection (2)
and may—
(a) require a person
who is reasonably suspected of having committed that offence to remain at a
particular place or accompany the officer to the nearest police station
for—
(i) so long as may be
necessary for application for an order to be made to, and considered by, a
magistrate, in accordance with
subsection (2)
; or
(ii) 2 hours,
whichever is the lesser; and
(b) require that the person, for the period referred to in
paragraph (a)
, not use or access a computer, data storage device, telephone or other
means of electronic communication, other than to contact a legal practitioner
for the purpose of obtaining legal advice, or in accordance with any directions
of a police officer; and
(c) if the person refuses or fails to comply with either or both such
requirements, or the police officer has reasonable grounds to believe that
either or both such requirements will not be complied with, arrest and detain
the person in custody (without warrant) for the period referred to in
paragraph (a)
.
(2) The following
provisions apply to an order under this Part that is required in urgent
circumstances:
(a) application may be made to a magistrate by telephone and must
include—
(i) the information required under
section 74BS(1)
; and
(ii) details of the circumstances giving rise to the urgency of the
application; and
(iii) any other information required by the magistrate to determine the
application;
(b) the magistrate is entitled to assume the accuracy of the information
as to the applicant's identity and official details supplied by the applicant
without further inquiry;
(c) if the magistrate
is satisfied as to the grounds for making the order, the magistrate must inform
the applicant of the facts that justify, in the magistrate's opinion, the making
of the order, and must not proceed to make the order unless the applicant
undertakes to make an affidavit verifying those facts;
(d) if the applicant gives such an undertaking, the magistrate may proceed
to make the order and, subject to
subsection (3)
, note on the order, the facts that justify, in the opinion of the
magistrate, the making of the order and informing the applicant of the terms of
the order;
(e) the order is to be taken to have been made, and comes into force, when
signed by the magistrate;
(f) the applicant must, as soon as reasonably practicable after the making
of the order, forward to the magistrate an affidavit verifying the facts
referred to in
paragraph (c)
;
(g) the magistrate must, as soon as reasonably practicable after the
making of the order, forward a copy of the order to the applicant.
(3) A statement of the
grounds on which an order has been made must not contain information, the
disclosure of which, would be inconsistent with a decision of the magistrate
under
section 74BU
.
74BU—Criminal Intelligence
(1) In any proceedings
under this Part the magistrate determining the proceedings—
(a) must, on the application of the Commissioner, take steps to maintain
the confidentiality of information classified by the Commissioner as criminal
intelligence, including steps to receive evidence and hear argument about the
information in private in the absence of the parties to the proceedings and
their representatives; and
(b) may take evidence consisting of, or relating to, information that is
so classified by the Commissioner by way of affidavit of a police officer of or
above the rank of superintendent.
(2) The duties imposed on a magistrate by
subsection (1)
in relation to proceedings under this Part apply to any court dealing with
information properly classified under this Part as criminal intelligence or with
the question of whether information has been properly classified under this Part
by the Commissioner as criminal intelligence.
(3) The Commissioner may not delegate the function of classifying
information as criminal intelligence for the purposes of this Part except to a
Deputy Commissioner or Assistant Commissioner of Police.
74BV—Service of order
A copy of an order under this Part must be served personally on the person
to whom it applies as soon as reasonably practicable after it is made, and in
any event, before the period specified (if any) in the order within which the
assistance or information is to be provided.
74BW—Effect of order
(1) A person who is
served with an order under this Part commits an offence if the person, without
reasonable excuse, contravenes or fails to comply with the order.
Maximum penalty: Imprisonment for 5 years.
(2) A person is not excused from complying with an order on the ground
that to do so may result in information being provided that might incriminate
the person.
(3) Despite any other Act or law, evidence or information obtained by the
lawful exercise of powers pursuant to an order under this Part, and evidence or
information obtained incidentally to such an exercise of powers—
(a) may be used by law enforcement and prosecution authorities for the
purposes of investigating and prosecuting any serious offence; and
(b) is not inadmissible in proceedings before a court in relation to a
serious offence merely because the order under this Part was obtained in
relation to a different serious offence.
74BX—Impeding investigation by interfering with
data
A person commits an offence if the person, without lawful authority or
reasonable excuse, alters, conceals or destroys data—
(a) held on a computer or data storage device in respect of which an order
has been, or is to be, made under this Part; and
(b) that may be, or could reasonably be expected to be, evidence of an
offence,
and in so doing, the person intends that, or is recklessly indifferent as
to whether—
(c) the investigation of the commission of an offence by another person is
impeded or prejudiced; or
(d) another person is assisted to avoid apprehension or prosecution for an
offence; or
(e) the likelihood that another person is apprehended or prosecuted for an
offence is reduced.
Maximum penalty: Imprisonment for 5 years.