Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Bill 2023

Second Reading Speech

The Hon. ANTHONY D'ADAM (10:30:40):

On behalf of the Hon. Daniel Mookhey: I move:

That this bill be now read a second time.

The Government is pleased to introduce the Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Bill 2023. The bill amends the Law Enforcement (Powers and Responsibilities) Act 2002 to enable a digital evidence access order to be sought in relation to a search warrant issued under section 40 of the Independent Commission Against Corruption Act 1988. These are small but important amendments that were raised with the Government directly by the Independent Commission Against Corruption, commonly known as the ICAC, and they work to ensure that the ICAC's powers to investigate corruption and maladministration in New South Wales remain current and fit for purpose.

Last year the digital evidence access order scheme passed this Parliament, which enabled police officers and officers of the New South Wales Crime Commission to seek orders alongside a search warrant that empower them to issue a direction to a person requiring them to provide assistance to unlock a digital device connected to the search warrant. Failure to comply with such a direction is a criminal offence, punishable by up to five years' imprisonment. These powers reflect the emerging needs to support the modern realities of serious investigations. Search warrants provide the authority to search a place and the things found on it, including digital devices. But unlike traditional physical documents such as paper files or journals, digital devices are frequently protected by passwords or other forms of security that can frustrate the exercise of these powers.

The bill will ensure that ICAC officers also have access to these orders and powers in connection with the search warrants under their Act and related to their investigations. The digital evidence access order scheme was originally targeted to address law enforcement investigative needs as part of a package of legislative reforms responding to organised crime, but the issue goes beyond organised crime. Corruption and misconduct by public officials are incredibly serious matters. The New South Wales community expects those who are trusted to perform public functions to act honestly, in good faith and in the best interests of the public, not for their own personal gain or advantage. Such actions erode trust in our public institutions, which is absolutely critical for a safe and stable society. That importance is reflected in the existing and extraordinary powers that the ICAC already has, similar to a royal commission.

The Parliament has long recognised that ICAC's critical functions warrant such special powers of investigation and inquiry. The Government has heard directly from the Chief Commissioner of the ICAC about how locked digital devices are just as pertinent to corruption investigations as they are to investigations for organised crime. Without this power, potentially critical information may remain unintelligible and significantly frustrate ICAC's investigations. There is a clear public interest in ensuring that ICAC is able to execute investigations in a fulsome manner, without being frustrated by access controls on digital devices. That is exactly why we are acting to close this gap and provide the ICAC with the powers that it needs. In this we also follow Queensland and the Northern Territory, where comparable corruption commissions have access to the powers this bill provides.

I turn to the detail of the bill. Clause 3 of the bill makes two amendments to the definitions underpinning the digital evidence access order scheme in the Law Enforcement (Powers and Responsibilities) Act 2002. First, the definition of "eligible applicant" under section 46 is amended to include an officer of the ICAC for a digital evidence access order in connection with a search warrant under section 40 (1) of the Independent Commission Against Corruption Act 1988. Second, the definition of "search warrant" under section 76AA is amended to include a search warrant issued under section 40 (1) of the Independent Commission Against Corruption Act 1988.

The effect of the two amendments is that ICAC officers will be able to make an application to an "authorised officer" for a digital evidence access order under section 76AB of the Law Enforcement (Powers and Responsibilities) Act 2002. Authorised officers are magistrates and registrars of the Local Court. If the order is issued, the ICAC officer will be authorised under section 76AM of the Law Enforcement (Powers and Responsibilities) Act 2002 to direct the person specified in the order to give the officer information or assistance reasonable and necessary to (a) enable the officer to access data held in or accessible from a digital device, or (b) copy or convert data to another device.

Under section 76AO of the Law Enforcement (Powers and Responsibilities) Act 2002, it is a criminal offence for a person to fail to comply with such a direction or give false or misleading information to an officer executing a digital evidence access order without a reasonable excuse. It is not a reasonable excuse that complying with the direction would incriminate the person or expose them to a penalty. This offence attracts a maximum penalty of five years' imprisonment, or a fine of $11,000, or both.

I stress that the bill does not make substantive amendments to the digital evidence access order scheme itself. The powers that I have described are already available to police officers and officers of the New South Wales Crime Commission. The bill only extends the scope of the scheme to include ICAC officers when they are executing search warrants under their legislation. This means that the existing processes and safeguards of the digital evidence access order scheme apply to ICAC officers seeking such warrants, and this is given effect by the consequential amendments contained in clauses 3 (3) and (4) of the bill. Application processes for digital evidence access orders are aligned to those of search warrants. They can only be issued by an eligible issuing officer. In the case of ICAC search warrants, such officers are magistrates or a registrar of the Local Court and are already empowered to issue ICAC search warrants.

As with search warrants, applications will be considered ex parte—that is, without the subject of the warrant in attendance—and are not required to be heard in a courtroom. In the case of authorised officers who are judicial officers, applications will be heard in the personal capacity of the magistrate. Importantly, although the commissioner of the ICAC may issue a search warrant under section 40 (1) of the Independent Commission Against Corruption Act 1988, they may not determine an application for a digital evidence access order. This ensures that such powers are only granted following an independent third-party determination, consistent with the current digital evidence access order scheme. It also reflects the significance of the power to breach the privilege against self-incrimination.

Further, a digital evidence access order must be sought in connection with a search warrant. That means that the order cannot be granted as a standalone. An accompanying search warrant must exist for the digital evidence access order to be made. That reflects that the policy purpose is to augment search powers to ensure that they are fit for purpose where the authority to conduct the search already exists. The bill represents an important extension of the ICAC's investigative powers to make sure that they keep pace with the modern realities of investigations. I commend the bill to the House.

Second Reading Debate

The Hon. SUSAN CARTER (10:39:12):

I contribute to debate on the Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Bill 2023. I indicate the Opposition supports the bill, which essentially permits the Independent Commission Against Corruption to obtain orders requiring persons who are the subject of search warrants to disclose their computer passwords to the Independent Commission Against Corruption. The bill builds on legislation the former Government introduced in 2022, the Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Act 2022, which was part of a suite of measures that also included the Crimes Amendment (Money Laundering) Bill 2022 and the Dedicated Encrypted Criminal Communication Device Prohibition Orders Bill 2022.

The purpose of the Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Bill 2022, which the former Government introduced in September last year, was to provide a tool for the NSW Police Force and the New South Wales Crime Commission to increase their ability to access digital evidence in connection with search warrants and crime scene warrants in New South Wales. It is a reality of modern criminal investigations that law enforcement officers encounter digital devices of interest when they are conducting searches as part of their investigations of suspected criminal activity. Of course, unlike hard‑copy documents such as journals or handwritten or typed notes, when such a device is detected it is not uncommon for those devices to be protected by a password, access key, face ID or some other protective measure that inhibits the ability of law enforcement officers to access the material that has been seized under a search warrant.

The bill before the House seeks to expand the list of persons who can obtain such digital access orders, ancillary to search warrants, to include officers of the Independent Commission Against Corruption. The commission was established by the Greiner Government in 1988. Corruption is by definition a distortion of public assets, public funds and taxpayers' dollars. There is no room for the misuse of public resources through corruption. Consistent with the Coalition having created the Independent Commission Against Corruption, we support it having the necessary tools to fulfil its important functions.

Technology is ubiquitous. It is important for the Independent Commission Against Corruption to be able to access digital data. That is why the Opposition supports this important augmentation to the powers of the Independent Commission Against Corruption, just as we extended those powers to the NSW Police Force and the Crime Commission in the legislation we introduced last year when in government. I accept that, as the Hon. Anthony D'Adam informed the House in his second reading speech, the extension of those powers was requested by the Independent Commission Against Corruption. It is appropriate, and that is why we support the legislation.

The Hon. ROD ROBERTS (10:42:04):

On behalf of One Nation, I contribute to debate in support of the Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Bill 2023. Digital transparency and investigation must not be reserved solely for low-level crime. It must be available to root out corruption at all levels. If my experience as a detective has taught me anything, it is that the devil is in the detail. And if the twenty-first century has taught me anything, it is that the detail is now online and on our phones. The digital evidence access order scheme was originally aimed at addressing law enforcement and investigative needs as part of a group of legislative reforms that were a response to organised crime. But, as we know, the issue goes far beyond organised crime.

Corruption and misconduct in the halls of power is an incredibly serious matter, and that was reinforced today by the release of the ICAC report. The New South Wales community expects and demands that those who are trusted to perform public functions must act in the best interests of the public. The bill represents an important extension of ICAC's investigative powers. It is a necessary step to ensure it keeps pace with the modern realities of investigations. For that reason, I commend the bill to the House.

Ms SUE HIGGINSON (10:43:38):

On behalf of The Greens, I indicate that we support the Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Bill 2023, despite our reservations about digital evidence access orders and the impact that such powers have on civil rights. Civil rights considerations in the digital age are particularly important due to the vast amounts of information about an innocent individual that can be examined and exposed by law enforcement powers like these access orders. Digital devices are virtual treasure troves of information about people and organisations, and that information can go well beyond the scope of any person who might be under investigation and subject to a digital evidence access order.

Highly privileged personal and confidential information about an enormous network of other people could be revealed and become subject to further distribution as a result of these orders. That is one of the most significant reasons for seeking to oppose the orders when they were introduced under the former Government. Unlike traditional search warrants, these digital orders do not just allow the opening a safe containing a certain collection of documents; they expose hundreds or potentially thousands of people to having their private information exposed. That is the nature of digital devices: They connect and interconnect large networks of people, whose private data must be protected.

Last year, when I was expounding on the risks associated with evidence access orders in debate on the Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Bill 2022, I expressed that greater risks should be offset by greater protections. If law enforcement officers risk exposing information, the magnitude of which goes beyond the scope of an access order, then there should be a separate and more thorough process to ensure that warrants are necessary, and that unrelated data will be treated to additional levels of protection. It is clear that additional protections should have been built into this legislation for civil rights reasons. People who are not necessarily the subject of digital evidence access orders could inadvertently be caught up in criminal matters by the discovery of information relating to matters other than what is being investigated.

The right of a person to protect themselves from self‑incrimination by material that might be unintentionally revealed was also not considered when these orders were introduced. Once the police have access to these devices, much information about the specified person and anyone who they are associated with could be revealed. That information could be used to incriminate the specified person for matters other than that which relates to the original warrant, or, even worse, it could be misused by police or other law enforcement agencies. The Computerised Operational Policing System [COPS] database holds more than 40 million records that can be accessed by 17,500 police officers in New South Wales. In 2019 the ABC reported that data breaches in the COPS database were putting personal and private data at risk. In fact, from 2018 to 2020 there were 1,474 reports of unauthorised disclosure and unauthorised access to COPS, which resulted in vulnerable people having their personal information exposed.

The protection of whistleblowers, especially those within law enforcement authorities, is of vital importance. The abuse of that data and the systems that manage it shows there is a vulnerability to allowing access to vast amounts of data that could be misused. In 2019 a police whistleblower had their private data accessed 200 times in the year following their reports. Granting greater powers to law enforcement agencies to gather data, particularly digital data, should be put under a microscope and carefully considered before it is passed by Parliament. At the absolute bare minimum, a proportionality requirement should have been built into the law so that police can seek the warrant only if they are able to demonstrate that it is necessary to gather evidence that cannot be gathered in some other way, and that the gathering of such evidence is proportionate to the mischief that is being alleged and investigated.

When the Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Bill was introduced in 2022, neither the government of the day nor the opposition of the day thought that those powerful orders warranted an inquiry, or that innocent and vulnerable people should be given additional protections to prevent their data from being revealed under these orders, so now we have digital evidence access orders. That brings me to this bill. Unlike the broader applications of digital evidence access orders, giving those powers to the Independent Commission Against Corruption is important, and it is a good step forward for public accountability—what a day to be debating the bill in this Parliament.

ICAC investigates serious misconduct and corruption perpetrated by highly resourced, generally wealthy people who wilfully cover their tracks by using encrypted digital systems and channels that would otherwise be inaccessible without these orders. Government members have said that the exclusion of ICAC from these digital evidence access orders was an oversight. The work that has been conducted, the investigations that have been completed and the corruption that has been uncovered by ICAC over the past 12 years has been of immeasurable benefit to the integrity of New South Wales. I cannot stress enough how important the work of ICAC is and that it should have any power that it needs to reveal corrupting forces in our democracy. Again I stress, what a day to be discussing the powers and needs of ICAC.

The Greens recognise that investigations conducted by ICAC also have the potential to impact people who are not the primary subject. Those impacts can be traumatic and can lead to serious consequences for those people's health and wellbeing, through no fault of their own. It is important that ICAC continues to exercise its functions, but we can expect that the risks to individuals are weighed against the prevailing public-interest requirements of uncovering corruption. With regard to the processing of applications for and approvals of digital evidence access orders, we have made inquiries via the Attorney General about the intentions of the bill with respect to the existing processes.

I thank the Government for answering our questions about those issues. "Authorised officer", for the purposes of approving those evidence access orders, is defined in the Law Enforcement (Powers and Responsibilities) Act. They can be officers of the Attorney General. Although the issue was explained to me, it was also noted that the definition could be due for review and, potentially, an update. Given the importance of ICAC and how vital its independence from Government is in both function and appearance, I would encourage the Government to consider how "authorised officer" is defined in the context of access orders.

This bill to empower ICAC to fully access digital evidence and to uncover and investigate corruption in our democracy is important. The broader applications of digital evidence access orders, particularly by the NSW Police Force, remain a concern for The Greens. We will continue to pursue greater accountability and integrity regarding their use. I thank the Government for engaging with us on the bill, and I encourage it to take note of our greater concerns and consider what it can do to fix the issues we have raised, particularly in relation to accountability for the use of digital evidence access orders.

The Hon. AILEEN MacDONALD (10:52:13):

The Opposition supports the Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Bill 2023. The bill completes a process commenced with the digital evidence access order scheme introduced by the former Coalition Government with Labor's support. The scheme ensures that police and officers of the New South Wales Crime Commission can direct persons to unlock digital devices in connection with a search warrant. The original bill responded to the need of police to have the means to conduct full and proper investigations when dealing with organised crime. By the same rationale, serious crimes of misconduct and corruption that are within the purview of the ICAC must be able to be fully investigated in order for the commission to be effective. The bill extends the powers of the ICAC in that important area. Of course, the Opposition supports measures that aim to stamp out corruption in our State, and this bill complements the legislation passed last year.

The amendment in the bill is required because, without it, the work of the ICAC in the execution of search warrants would not be fully satisfactory; indeed, it would be thwarted. The Chief Commissioner of the ICAC has raised concerns that the scope of search warrants would be seriously limited and their purposes frustrated in the absence of those powers. If a search warrant unlocks physical doors and allows access to physical places and materials, there must be a similar power to unlock digital devices as, in our modern world, this is where almost all information is stored. A digital evidence access order would allow an ICAC officer to direct a person to provide information or assistance reasonably necessary to access a digital device or to copy or convert data. In practical terms, under this scheme a person could be directed to provide the password or PIN to a locked device in connection with an investigation.

The bill keeps intact the integrity of the digital evidence access order scheme as it would require that the process currently applicable to police and the New South Wales Crime Commission also apply to ICAC officers. That means that a digital evidence access order cannot be issued unless it is linked to a search warrant. In other words, it cannot be a standalone order or power. The same safeguards would apply in that applications must be determined by an eligible issuing officer. As members have heard, in the case of ICAC that means that warrants would have to be issued by a magistrate or a registrar of the Local Court, so there is third-party oversight of the powers. Moreover, the legislation introduced in 2022 did not include the ICAC, and the bill seeks to extend those powers to ICAC. The ICAC already has significant investigative powers similar to those of a royal commission but at this stage remains hampered in its investigations regarding digital materials.

The work of ICAC is important to the people of New South Wales. When public officials engage in misconduct and our institutions are eroded through corruption, trust in our public institutions is damaged, which leads to a more unstable society. The Opposition recognises the importance of a robust and capable commission that has the means necessary to investigate serious corruption and bring it to light. The Opposition supports the bill.

The Hon. TANIA MIHAILUK (10:56:23):

The Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Bill 2023 seeks to allow officers of ICAC to obtain digital access orders and thereby gain access to seized devices. As the Hon. Rod Roberts indicated, One Nation supports the bill. The bill seeks to extend reforms that were introduced last year which allow police officers and officers of the New South Wales Crime Commission to seek court orders directing that persons must cooperate by unlocking digital devices seized in a search warrant. Those reforms received bipartisan support—passing on the voices in both places—albeit with opposition from The Greens. The ICAC Chief Commissioner has since asked that powers given to the police and, indeed, officers of the New South Wales Crime Commission also be extended to officers of ICAC to assist with their critical work.

I turn to the detail of the bill. Clause 3 inserts new section 46 (1) (d1) into the Law Enforcement (Powers and Responsibilities) Act 2002 to extend to an officer of ICAC the ability to apply for a digital access order. Section 46 of the Act defines "eligible applicant". The reform is further achieved by amending section 76AA of the Act to include search warrants originating from ICAC in the definition of "search warrant". Further amendments to sections 76AB and 76AF are consequential. Encryption serves an essential and legitimate purpose. It provides security for both data in transit, such as online communications and online banking, and essential privacy for data at rest, such as encrypted photos on a smartphone. Encryption is increasingly used by technology companies to protect data from bad actors and improve privacy. The data must be decrypted before it is made readable, which may only be accomplished by utilising a unique cryptographic key.

Essentially, there are three main approaches. What it makes it difficult, of course—encryption—is, one, that you have to mandate back doors, force entry without manufacturer support, and compel decryption. The first option—mandating that technology companies install back doors—can create dangerous vulnerabilities that may eventually be discovered and exploited by malicious actors. Forced entry into devices is the least controversial option as it does not require legislative amendments; however, given the last decade of technological improvements, that option has become increasingly impractical and is often unsuccessful, and now verges on the impossible.

As we have found with combating organised crime, the most effective way to gain access to a device is to order that it be unlocked by the party being investigated, and the same is no less true when it comes to uncovering corruption in public officials. The requirement that such an order may only be made by a judicial officer is an important safeguard to ensuring Executive Government is not given free rein to compel access to private data on an ad hoc basis. As with any search warrant, an appropriate application must be made to a court, and that is a careful balancing act between civil liberties and investigative power that has been struck over centuries but now adapted to meet the conditions of the modern world.

The PRESIDENT:

Order! According to sessional order, proceedings are now interrupted for questions.

‍