Second Reading Debate

Debate resumed from an earlier hour.

Mrs SALLY QUINNELL (Camden) (14:31): The Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Bill 2023 amends the Law Enforcement (Powers and Responsibilities) Act 2002, known as LEPRA, to enable digital evidence access orders to be sought by officers of the Independent Commission Against Corruption in connection with warrants issued under the Independent Commission Against Corruption Act 1988. The amendments reflect the need to update the ICAC's powers in the contemporary investigative context. They particularly enable officers of ICAC to compel a person under a search warrant to open their phone or computer—a power that Government members believe is necessary to conduct modern investigations.

Government members undeniably believe that the ICAC is a key institution necessary for the maintenance of public trust. Corruption has a corrosive impact on our institutions and has no place in society, particularly in the highest places of power and among those with the greatest responsibility. In recent New South Wales history, we have witnessed the important role that the ICAC has played in uncovering serious breaches of public trust by politicians and public servants in local government and other areas. Our State is in a much better position as a result of its investigations uncovering wrongdoing. These amendments are the direct result of a request to the Government from the Chief Commissioner of the ICAC and are intended to ensure that ICAC's powers remain fit for purpose in the contemporary context. The intention of the scheme is to overcome the modern realities of technology, in particular the challenge of locked devices.

These challenges are not unique to New South Wales. Other States in Australia have granted powers similar to digital evidence access orders to comparable integrity agencies. In Queensland, under section 88A of the Crime and Corruption Act 2001, an officer of the Queensland Crime and Corruption Commission may be granted an authorisation as part of a search warrant that allows them to provide access information in relation to a digital device found on the relevant premises. Section 88B provides for a similar order to be sought where a digital device has been seized under the primary search warrant. Under section 88C, a person is not excused from complying with such a direction on the grounds that doing so would tend to incriminate the person. Under section 205A of the Queensland Criminal Code, it is a criminal offence to fail to comply with a direction given under such an order without a reasonable excuse. The offence carries a maximum penalty of five years' imprisonment.

In the Northern Territory, under section 71 (1) (g) (vi) of the Independent Commissioner Against Corruption Act 2017, when an officer of the Northern Territory Independent Commissioner Against Corruption is lawfully on premises, the officer may require a person on the premises to give them any translation, code, password or other information necessary to gain access to or interpret and understand anything located or obtained in the course of exercising their investigative powers. Under section 71 (2), it is a criminal offence for a person to fail to comply with such a requirement. The offence carries a maximum penalty of 100 penalty units—that is currently $16,200, noting that in the Northern Territory penalty unit amounts are indexed each financial year so are subject to change.

I turn to the particulars of the bill. The bill will extend the digital evidence access order scheme to include ICAC officers executing search warrants under the ICAC Act. It amends two definitions. "Eligible applicant" in section 46 of LEPRA will also include ICAC officers, and "search warrant" in section 76AA of LEPRA will include ICAC Act search warrants. The bill does not substantively amend any other provisions relating to the digital evidence access order scheme. Existing processes and safeguards will continue to apply, and two consequential amendments are made for this purpose.

For ICAC officers, digital evidence access orders will only be able to be issued by an authorised officer, namely a magistrate or a registrar of the Local Court. These officers are also already authorised to issue search warrants under the ICAC Act. Under the Act, the commissioner of the ICAC may also issue search warrants, but they will not be authorised to issue digital evidence access orders. This ensures that such orders are determined by independent third parties. These amendments reflect the need to update the ICAC's powers in the modern age. Members on this side of the House recognise the key role that a strong ICAC that has powers that are fit for purpose should play in maintaining integrity across this State. The bill seeks to support the ICAC in doing just that. It is for these reasons that I commend the bill to the House.

Mr MICHAEL DALEY (Maroubra—Attorney General) (14:37): In reply: I thank all members who have contributed to this debate, specifically the member for Wahroonga, my Parliamentary Secretary the member for Prospect, the member for Ballina, the member for Mount Druitt and the member for Camden. I thank members for their support of the bill and briefly address some matters raised during debate. I note that the member for Wahroonga raised concerns specifically related to the exercise of search warrants by the Independent Commission Against Corruption. I also note that he referred to the Inspector of the ICAC, who has a statutory function to oversee the ICAC. I stress that these bodies are independent and that the legislative frameworks that underpin them are robust. The bill does not amend any of that legislation. The ICAC and the inspector are also subject to parliamentary oversight through the joint Committee on the Independent Commission Against Corruption, required to be established under part 7 of the Independent Commission Against Corruption Act 1988.

I have also heard the concerns raised by the member for Ballina about the digital evidence access order scheme itself. The scheme is subject to a statutory review under section 237A of the Law Enforcement (Powers and Responsibilities) Act 2002. It requires the Minister to review whether the policy objectives of the provisions remain valid and whether the terms of the provisions remain appropriate for securing those objectives. The amendments effected by the bill will also be considered as part of this review, and it will provide an opportunity to consider how they have been implemented operationally by all relevant agencies. The review must be commenced as soon as practicable two years after commencement, with a report tabled within a further 12 months. That means that the review will occur after 1 February 2025 and the report is to be tabled before 1 February 2026.

In conclusion, this bill has been brought forward after hearing directly from the Chief Commissioner of the ICAC, who advised that these powers are critical to ensure that ICAC search warrants, where granted, are not unduly frustrated by locked digital devices. The work of the ICAC is critical. We all know that; we have all said that many times in this place. The Government takes corruption and misconduct by public officials incredibly seriously. This kind of conduct erodes the trust that the public places in us and in the public sector to act honestly, in good faith and in the interests of the public. The bill ensures that the ICAC has the powers and investigative tools it needs to respond to the operational realities of modern investigations. I commend the bill to the House.

TEMPORARY SPEAKER (Mr Alex Greenwich): The question is that this bill be now read a second time.

Motion agreed to.

Third Reading

Mr MICHAEL DALEY: I move:

That this bill be now read a third time.

Motion agreed to.