SPEECH AT THE 2ND READING OF THE ONLINE CRIMINAL HARMS BILL
In my speech on the occasion of the 2nd reading of the Online Criminal Harms Bill on 6 July 2023, I focussed on measures to make the Bill more precise, more powerful and longer in reach. I acknowledged that the bill will enable the enforcement authorities with an important tool to proactively deal with the scourge of scams so as to protect Singapore residents from falling victim to such acts. My speech may be accessed below:
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1. Mr Speaker, I support this eagerly awaited bill.
a. This bill, if passed, will provide the legislative levers that will enable our enforcement officers to take proactive measures to protect Singapore residents from falling victim to scams. This bill creates a potentially powerful instrument that can be used to great effect.
2. In my speech, I shall point out three ways to make this instrument more precise, more powerful, and longer in reach.
I will also focus on the organizational structure as well as the processes that are being contemplated to be put in place to administer and enforce the powers and responsibilities spelt out in this Bill once it comes into effect.
3. Let me start off with a point on governance, which is embedded in the definitions of “competent authority”, “designated persons” and “authorized persons” as stated in Clauses 3 & 4 of the Bill.
a. May I please ask the Hon Minister whether he intends that a separate independent body be created as the “competent authority” to administer the Act once it comes into being?
b. In this regard, I note that the competent authority has a dual role:
i. First, it facilitates enforcement work.
1. In this role, it is intended that the “competent authority” be vested with the power to issue Orders for non-compliance of Government Directions to specific entities aimed at pro-actively dealing with cases where specified criminal offences are suspected to have been committed.
ii. Second, it is vested with the responsibility to develop a framework in form of codes of practice that designated online service providers will have to comply with a view to, amongst others, facilitate information sharing on suspicious online activities and design of features to make online platforms more scam-proof.
1. To achieve the legislative objective, I foresee the need to foster a relationship of candour between the online service providers and the competent authority.
2. The online service providers will need some assurance that if they were to provide inputs in good faith, there will be no serious repercussions against them.
c. For this reason, subject to clarifications from the hon Minister, my preference is for the “competent authority” to be structurally separated from the investigation arm of an enforcement agency. This will prevent any conflict in the dual roles contemplated for the authority.
d. One possible example to follow could be the Suspicious Transactions Reports Office (“STRO”) of the Commercial Affairs Department. The STRO has a responsibility in dealing with information sharing concerning AML and CFT related matters with financial institutions.
i. The STRO is sited within CAD’s Intel & Admin Group which is separate from CAD’s investigative arm, its Financial Investigation Group.
4. I also note that it is proposed that the Minister may appoint any public officer from any Ministry, department or an employee from a statutory board as an “authorised person”.
a. Potentially, this is quite wide.
b. Under Clause 5 of the Bill, it is proposed that the “competent authority” may delegate the exercise of its powers to “authorised persons”. It may also issue directions of a general character to them and they must give effect to the directions.
c. May I ask what will be the hon. Minister’s considerations when exercising this power that is proposed to be vested in him?
i. Apart from the issue of independence that I already raised, it seems to me, given the specialist nature of the duties that will be vested in the “competent authority”, would it not be better to create a department which can be more focused on developing the expertise and the relations necessary to achieve the legislative objectives of this Bill?
5. Finally, for my last point on the governance structure, I turn to the definition of “designated officer”.
a. Under the Bill, it is the “designated officers” who will be vested with the power to issue Government directions in respect of online activity so as to be able to proactively manage suspected crime cases and prevent more people from falling victims to scams.
b. However, I am not able to find any direct statutory lever that the “competent authority” may exercise over the “designated officer”.
c. What is specifically provided though, under Clause 4(5) of the Bill, is that the designated officer must act in accordance with his departmental head.
d. Given that the “competent authority” has the responsibility to administer the Act once it comes into force and the interplay between the designated officer’s and competent authority’s roles, may I ask why is it felt that it is not necessary to allow the “competent authority” to issue directions that the “designated officer” should heed by?
i. It could be as simple requiring the designated officer to notify the competent authority at the point when the “designated officer” is exercising the powers under this Act once it comes into force.
6. These three points on governance may appear to be quite technical but they go towards sharpening this powerful law against scams.
7. I now turn to processes stipulated in the Bill which speaks to the power of this instrument.
8. The first has to do with the status of “codes of practice” issued by the competent authority. I note that it is proposed that the competent authority be vested with, amongst others, the following powers:
a. To stipulate an online service of an online service provider as a “designated online service” and online service providers as “designated providers”; and
b. To issue codes of practice that designated providers will have to comply with.
c. It is specifically provided that non-compliance may trigger the issuance of rectification notice or implementation directive by the competent authority against the designated provider.
d. Failure to comply with the notice or directive constitutes a criminal offence.
e. Clause 19(4) also provides that the requirement of a code of practice has effect despite any duty of confidentiality, privacy or arising from contract or any rule of professional conduct.
f. Against this backdrop, may I please ask why it is then stipulated in Clause 21(4) of the Bill that the code of practice issued under the said clause does not have legislative effect?
i. Would it not be better to provide that the code of practice constitutes subsidiary legislation under the Act once it comes into force?
ii. It seems to me anomalous that this Bill provides for serious consequences for breaches of the code of practice but at the same time stipulates that the code of practice has no legislative effect. That is, breaching the code is not merely a disciplinary violation, but a crime. The code then, has more force and power than the usual community or professional codes of conduct.
iii. Also, this may help designated providers defend their position in vis a vis counterparties to whom they may owe duties of confidentiality, privacy or under contract that may conflict with provisions in the codes of practice.
9. For these reasons, I seek the hon Minister’s clarification on this point.
10. I now move on to the provisions in the Bill dealing with appeals. I note that a dual track of appeals is being proposed in this Bill:
a. Appeals may be made to the Minister in relation to decisions made by the competent authority under Part 4 of the Bill.
b. Appeals against actions in relation to Government directives under Part 2 of the Bill and orders under Part 6 of the Bill may be appealed to the Reviewing Tribunal.
c. It is provided in Clauses 26(8) and 41(5) of the Bill that the respective decisions of the Minister and the Reviewing Tribunal are “final”.
i. My question is what is intended by the word “final”.
ii. The lawyers in this House would know that courts do not always interpret “final” in such provisions as “final” — as it, nothing further can be said or challenged. In a good number of cases, the courts have decided that usage of such words do not oust the jurisdiction of the courts to judicially review the decisions made on appeal.
1. May I clarify that the intent in this Bill is not to oust the power of the court to revisit decisions of the Minister or the Reviewing Tribunal on appeal based on the traditional grounds of judicial review?
iii. If so, is it contemplated that the Minister and the Reviewing Tribunal will have to provide written grounds of decision when deciding on appeals so that the Court will be able to properly scrutinize the matter should its jurisdiction to review government action be invoked? The “final”here therefore is not incompatible with “still open for challenge”.
11. Finally, I turn to Part 11 of the Bill that deals with, amongst others, offences for breaches of directions and orders issued under the Bill.
12. I am glad to note that offences provided for in this part have extraterritorial reach, having regard to the transnational nature of the scams today.
13. I have a query as to why the provision for punishment for the offence created under Clause 52, which deals with persons who do not obey a Part 6 order issued by the competent authority as a result of a failure to comply with a Part 2 direction, falls below the threshold for making it an extradition offence.
14. As I understand, Clause 6 and Clause 28 of the Bill complement each other.
a. Clause 6 contemplates a designated officer to issue a Part 2 direction to any person even if he may be located outside Singapore. The focus here is to proactively deal with situations where certain specified criminal offences are suspected to be committed so as to prevent more people in Singapore from becoming victims of scams.
b. Where any person does not comply with the Part 2 direction, the competent authority may give a Part 6 order under Clause 28. This involves, amongst others, the issuance of an order to the provider of an app distribution service to stop distributing the relevant app to Singapore persons or an order to a provider of non-compliant online service to suspend or stop the provision of such service to Singapore persons.
c. It is important to note that it is specifically provided in Clause 28 that the recipient of a Part 6 order may not necessarily be the same as the recipient of the original Part 2 direction.
15. For a person who fails to comply with a Part 2 direction described in Clause 6 of the Bill, he would have committed an offence under Clause 50 of the Bill.
a. As the said Clause provides for a maximum punishment of 2 years (which is the minimum threshold as provided for in the Extradition Act 1968 for an offence to be an extradition offence), under the current legislative scheme, so long as the 2nd Schedule of the Mutual Assistance in Criminal Matters Act is subsequently updated to include this specific offence as a “serious offence”, this offence becomes extraditable.
16. This is not the case for Clause 52 of the Bill which creates the offence for breaching a Part 6 Order.
a. This is because the maximum punishment for a breach of Clause 52 is 1 year, which is below the minimum threshold provided for in the Extradition Act.
17. Since these provisions are meant to complement each other, may I ask the hon Minister why there is this difference?
a. I would have thought that, having provided the offences to be extraterritorial, it would be important to ensure that the more serious offences in this Bill should be made extraditable.
b. Otherwise, the fear is that the punishment provisions, insofar as they apply to individuals based outside Singapore, will be toothless. To harmonise the two would allow this instrument a greater, and to my mind, its proper, reach.
18. Mr Speaker, the arm of the law, when dealing with scams, must not only be long, it must also be powerful and precise. It is with these considerations in mind that I have raised some concerns about the bill in its current form, with attention to its governance structures, the standing of codes of practices issued and its punitive reach. With these issues properly addressed, we will have a stronger legislative instrument suited to fight the rising public menace of online criminal harms. Sir, notwithstanding my comments, I support the bill.
