06 December 2016

Passwords and Warrantless Access?

The Queensland Police Minister Mark Ryan, in introducing the Child Protection (Offender Reporting) and Other Legislation Amendment Bill 2016 (Qld), states that the Bill will "provide a more cohesive and holistic response to the management of reportable offenders in the community".

The Bill amalgamates the Child Protection (Offender Reporting) Act 2004 (Qld) and the Child Protection (Offender Prohibition Order) Act 2008 (Qld) and amends the Police Powers and Responsibilities Act 2000 (Qld).
“The new legislation will give police enhanced powers to intervene in situations before sexual or particular other serious offences have been committed against a child and are aimed at disrupting and preventing recidivist offending,” Minister Ryan said.
“Police will be able to require a reportable offender to provide access information for electronic or other devices, where there is a reasonable suspicion that an offence has occurred.
“A person who fails to comply with this requirement can face up to five years’ imprisonment.”
Minister Ryan said under the new legislation, police will also have the power to inspect devices of some reportable offenders who pose the greatest risk to the lives and safety of children in our community.
“The Palaszczuk Government is determined to see anyone impacting on the safety of children right across Queensland not only charged and prosecuted to the full extent of the law but that strict measures are in place to put a stop to repeat offending,” he said.
“The new legislation will also provide greater protection for child witnesses during court proceedings, by prohibiting self-represented respondents or reportable offenders from being able to cross examine children who are witnesses.
“This will reduce further trauma to those victims of sexual or particular other serious offences.
“The enhanced powers for police mean they are able to intervene in situations prior to an offence occurring and to act quickly when there is suspicion an offence has been committed.”
Minister Ryan said the Palaszczuk Government has been working hard to streamline information sharing provisions between agencies which is vital to the ongoing safety of children in Queensland.
Commissioner Ian Stewart said any initiatives that assisted officers on the front line would be welcomed. “Our priority is keeping Queenslanders of all ages safe, but it is particularly important that we focus on the most vulnerable in our community, our children,” Commissioner Stewart said.
It wouldn't be a traditional Queensland media release, after all, without the Police Commissioner endorsing action by the Government.

Section 51B of the Bill - Access information for storage devices - provides
(1) This section applies if an authorised police officer suspects, on reasonable grounds that, a reportable offender has committed an indicatble offence under this Act.
(2) the authorised police officer may require the reportable offender to—
(a) give a police officer access to a storage device— (i) that is in the offender’s possession; or (ii) to which the offender has access; or
(b) give a police officer access information, and any other information or help, necessary for the officer to gain access to information stored on the device; or
(c) allow a police officer to— (i) use the access information to gain access to the information stored on the device; or (ii) examine the information stored on the device, including by using a software program on the device, to find out whether the information may be relevant evidence; or (iii) make a copy of information stored on the device that may be relevant evidence, including by using another storage device; or (iv) convert information stored on the device that may be relevant evidence into documentary form, or another form, that enables the information to be understood by a person.
(3) The reportable offender must comply with the requirement, unless the reportable offender has a reasonable excuse. Maximum penalty—300 penalty units or 5 years imprisonment.
(4) An offence against subsection (3) is a crime.
(5) It is not a reasonable excuse to fail to comply with the requirement that complying might tend to incriminate the reportable offender or expose the offender to a penalty.
(6) The Police Powers and Responsibilities Act 2000, sections 161 to 163 apply as if a reference in those sections to a police officer exercising powers under section 160 of that Act were a reference to the authorised police officer exercising a power under subsection (2) of this section.
(7) The reportable offender does not commit an offence against subsection (3) unless a magistrate makes a post-search approval order under the Police Powers and Responsibilities Act 2000, section 162 in relation to the exercise of a power under subsection (2).
(8) The police officer must inform the reportable offender, in a way that is reasonable in the circumstances, that the offender must comply with the requirement even though complying might tend to incriminate the offender or expose the offender to a penalty.
(9) If a court convicts a reportable offender of an offence against subsection (3), the court may, as well as imposing a penalt y for the offence, order the offender to comply with the requirement.
(10) In this section—
access information means information that is necessary for a person to access and read information that— (a) is stored electronically on a storage device; or (b) may be accessed through a storage device.
authorised police officer means a police officer authorised in writing by the police commissioner to exercise a power under this Act.
relevant evidence means evidence of the commission of— (a) a reportable offence; or (b) an offence against this Act.
storage device means a device— (a) on which information may be stored electronically, including, for example, a smart phone; or (b) through which information may be accessed, including, for example, from the cloud.
stored, in relation to information, means the information is stored on, or accessible through, a storage device.
The Explanatory Memo for the Bill states
Provide police with the power to require a person to provide access information for seized or detained computers or electronic equipment; and make the penalty for failure to comply with a direction to provide access information equivalent to the penalty for failure to comply with an OPO, or treat refusal as failure to comply with an OPO – new section 51B CPORA (Recommendation 13 – CCC report).
Section 51B is a new provision which requires a reportable offender to provide access information to a storage device or information which can be accessed through a storage device in circumstances where police have a responsible suspicion that an offence has been committed under the amalgamated legislation. The requirement to provide access information under section 51B excludes the application of the privilege against self - incrimination on the grounds that giving the access information might tend to incriminate the person. Section 51B allows the answer given as a con sequence of the requirement to be admissible as evidence, as well as any evidence obtained as a result of compliance with the requirement to provide access information.
Section 51B includes an offence provision where a reportable offender fails to comply with the requirement to provide access information will be liable to a maximum penalty of 300 penalty units or five years imprisonment. This is consistent with other offences under the CPORA and the proposed penalty increases for offences under the CPOPOA.
Excluding the application of the privilege against self-incrimination is similar to section 465AA(6) of the Crimes Act 1958 (Vic) and section 197 of the Crime and Corruption Act 2001 and is consistent with the findings of the Organised Crime Commission of Inquiry, which advocates the Victorian legislation as a good template for change.
The new access requirement is supported by safeguards which, in so far as possible, protect the rights of reportable offenders. In this regard, the requirement to provide access information will be limited to those police officers who are responsible for the management of reportable offenders in the community or have been authorised by the police commissioner to exercise those powers.
A police officer who requires access information from a person, will be required to make a post approval application to a magistrate. Furthermore, the details of the search will be recorded in the register of enforcement Acts under Chapter 21, Part 2, Division 3 of the PPRA. A reportable offender will not commit an offence for failing to provide access information in circumstances where a post approval order is not granted by a Magistrate.
The Memo also notes
Power to inspect – section 21 B PPRA
The Bill introduces section 21B of the PPRA to allow a police officer to inspect any device which is capable of storing or accessing information in the possession of a reportable offender who:
  • has been released from government detention or sentenced to a supervision order in the preceding three months; or 
  • has been convicted of a prescribed internet offence (up to a maximum of 4 inspections in a twelve month period ); or
  • has been assessed as posing an increased risk of re-offending.
This cohort of offenders represent the greatest risk of sexually re -offending against children. QCS has provided data showing that approximately 40% of reportable offenders released from detention, re-offended within the first three months of their release. Furthermore, information held on the National Child Offender System indicates that over 30% of reportable offenders in 2015/16 were convicted of internet based offences against children. Internet based offences include, using the internet to procure a child under 16 years, using a carriage service for sexual activity with a person under 16, possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service, etc. A number of these offenders were also convicted of contact offences simultaneous to the internet offences. Offenders who have been assessed as posing an increased risk of offending are assessed through the use of an empirically validated risk assessment tool. Empirically validated tools are used by all policing and corrections jurisdictions to determine the level of risk an offender has a particular time, based on changes in circumstances, such as job loss, death of a family member, homelessness, social isolation and/or the uptake of precursor behaviours such as alcohol or drugs.
Computers have opened a new sphere of high-tech crimes where information communication technology equipment and or data are the object for the offending or a tool for the commission of an offence. The Royal Commission into Institutional Responses to Child Sexual Abuse has conservatively estimated the cost of child abuse and child trauma on the Australian community at $6.8 billion per annum. Prevention, disruption and early intervention are key strategies to reduce the social costs to victims and offenders. The purpose of inspecting devices is to identify online activity which has or may lead to offending behaviours such as accessing child related websites, searching for and viewing images of children and researching or accessing groups who endorse child exploitation including child exploitation material. The provision aims at ensuring that a reportable offender is not at risk of, or committing, further reportable offences against children. Inspection of a device involves attaching a commercially available software program to the device. The software scans the device and produces a report advising police of websites and social media sites accessed, browser searches undertaken, any instant messaging services used, chat rooms accessed, an account of image files on the computer, and identifies any software or hardware linked to the device.
The software used by the QPS also has the capacity to identify the presence of child exploitation material. This functionality cannot be removed from the software and it is not intended to limit any police powers where something on the device may be evidence of an offence. In this regard, any offences identified as a consequence of the inspection may result in enforcement action. Conversely, where information on the device indicates an offender is at risk of committing a reportable offence through the presence of precursor activities, for example accessing child specific websites, police will refer the offender to an appropriate support service to address the behaviours which may lead to offending.
The QPS employs a case management approach to offender management and monitoring. Each officer who is responsible for the management of reportable offenders in the community is a highly trained detective. These detectives are skilled at building rapport with reportable offenders which allows them to gauge their risk level at any given time. This is an important strategy which supports a preventative approach as opposed to an enforcement approach. The new inspection power includes significant protective mechanisms to ensure that the rights of reportable offenders are not unduly abrogated. In this regard, an inspection for internet based offenders is limited to four times in a twelve month period. Any further inspection would require approval from a magistrate and must be based on increased risk. All inspections based on increased risk are required to be approved by a magistrate.
An inspection order will be in place, rather than a search warrant, for the purpose of authorising an inspection of a device for the purposes of the offender reporting legislation. Unlike a traditional search warrant, the inspection order will only allow police to inspect devices which can access the internet or access information through the internet or store information and police will not be required to particularise the information or data subject to the order.
Each inspection will be required to be entered on the register of enforcement acts and a report will be tabled in Parliament each year detailing the number of inspections undertaken and any action taken by police as a consequence of those inspections. Another safeguard is the capacity for a reportable offender who is of the opinion that the repeated use of the inspection process constitutes an abuse of power, are able to make a formal complaint to the CCC or to the Ethical Standards Command of the QPS. The police commissioner has made it clear that any abuse of any power by a police officer will not be tolerated.
The new provision aligns with narrative supporting recommendation 13 of the CCC report and supports contemporary policing strategies to prevent and disrupt crime rather than simply respond after a crime has been committed. In particular, the CCC concluded that while breaches which occur in public places can be readily dealt with by police using their existing powers to search, detain and arrest, it is possible and very likely that offenders will engage in prohibited conduct inside their homes and the existing police powers to monitor compliance inside the home are limited