Chapter 1 - Introduction (2024)

Chapter 1Introduction

1.1On 27 June 2024, the Senate referred the provisions of the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 (the Bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 8 August 2024.[1]

1.2The referral of the provisions of the Bill followed a recommendation of the Senate Standing Committee for the Selection of Bills.[2]

1.3In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to organisations and individuals, inviting them to make a submission by 19 July 2024. The committee received and published 35 submissions, which are listed at Appendix 1.

1.4The committee held a public hearing in Canberra on 23 July 2024. A list of the witnesses who appeared at the hearing is at Appendix 2.

1.5The committee also thanks those organisations and individuals who made submissions and who gave evidence at the public hearing.

1.6The committee was disappointed by the level of engagement by technology and social media companies with this inquiry. The committee thanks Google and TikTok Australia for providing written submissions.

1.7This report comprises two chapters:

Chapter 1 provides background information and identifies the Bill’s key provisions; and

Chapter 2 examines some of the key issues raised in relation to the Bill before setting out the committee’s findings and recommendations.

Note on references

1.8In this report, references to the Committee Hansard are to the proof (that is, uncorrected) transcript. Page numbers may vary between the proof and the official transcript.

1.9The Bill would amend Part 10.6 of the Criminal Code Act 1995 (the Criminal Code) to ‘modernise and strengthen offences that deal with the non-consensual sharing of sexually explicit material online, including material created or altered using technology’.[3]

1.10In his second reading speech, the Hon Mark Dreyfus KC MP, Attorney-General, described the Bill’s purpose to be to strengthen:

…existing Commonwealth criminal offences and create new offences to respond to the online harm caused by deepfakes and other artificially generated sexual material.

Digitally created and altered sexually explicit material that is shared without consent is a damaging and deeply distressing form of abuse. This insidious behaviour is degrading, humiliating and dehumanising for victims.[4]

1.11The Bill would also deliver on a commitment made by the Albanese government, following the meeting of National Cabinet in May 2024 on gender-based violence, which recognises the ‘urgent and collective need to respond to the growing challenges associated with artificially generated sexual material’.[5]

What are deepfakes?

1.12The term deepfake is a portmanteau of ‘deep learning’ and ‘fake’.[6]Deepfakes are:

…images, videos or sound files, generated using [artificial intelligence (AI)], of a real person that has been edited to create an extremely realistic but false depiction of them doing or saying something that they did not actually do or say.[7]

Deepfakes are created using ‘facial mapping technology and AI that swaps the face of a person on a [video or photo] into the face of another person’.[8]

1.13Recent technological advances, particularly in relation to AI, have led to increasingly sophisticated deepfake techniques which makes the deepfake material nearly impossible to detect.[9] The technology to create deepfakes is also ‘increasingly available as open source’ which allows the general public, including those with limited technical skills, to produce high-quality and realistic deepfakes.[10]

1.14As explained by the eSafety Commissioner:

Creating a deepfake typically involves using a combination of machine learning and face-tracking algorithms. This allows a fake face to be seamlessly stitched onto a real one. This gives anyone, including those with malicious intent, the capability to control what an image appears to say or do.

While this technology is not new, the ability to create a realistic impersonation of a person in video is a relatively new frontier.[11]

Current legal framework

1.15The current relevant offences in the Criminal Code criminalise using a carriage service to menace, harass or cause offence where private sexual material is involved.

1.16The standard aggravated offence requires the person to use a carriage service to menace, harass or cause offence and transmit private sexual material.[12]The penalty for the aggravated offence is imprisonment for 6 years. There is a special aggravated offence with a penalty of 7 years imprisonment where certain civil penalty orders have been made in relation to the Online Safety Act 2021 (OSA).[13]

1.17These offences require the sharing of private sexual material online where a reasonable expectation of privacy attaches to the depiction of the person and the material. As explained in the Bill’s Explanatory Memorandum (EM), this creates an issue where the relevant material is a deepfake because the victim themselves is not involved in the creation of the material and ‘an expectation of privacy may not attach to the depiction of the victim’.[14]

1.18There are also civil provisions under the OSA which prohibit the posting of, or the threatening to post, an intimate image of another person.[15] The penalty for doing so is a fine of 500 penalty units.[16] The eSafety Commissioner may issue a formal warning if a person contravenes section 75.[17] The eSafety Commissioner may also give a removal notice to the social media service, the person who posted the image or the hosting service provider in certain circ*mstances.[18] Refusal to comply with a removal notice could result in a fine of 500 penalty units.[19]

1.19The OSA does not apply to the creation of images without consent, it only applies to the posting of, or threatening to post, images without consent.[20] It does apply to both unaltered and synthetic material and thus captures AI and deepfake material.[21] There is also a requirement that the posting, or threatening to post, of the material is done so in circ*mstances ‘in which an ordinary reasonable person would reasonably expect to be afforded privacy’.[22]

1.20The Bill comprises one schedule of amendments which would:

repeal the definition of ‘private sexual material’ and ‘subject’ in section 473.1 of the Criminal Code;

repeal subsections 473.3(2) to (4) of the Criminal Code;

introduce new offences relating to the transmission of sexual material without consent (proposed sections 474.17A and 474.17AA); and

introduce new provisions for double jeopardy and alternative verdicts (proposed sections 474.17AB and 474.17B).

Repealed provisions

1.21The Bill would repeal the definition of ‘private sexual material’. The offence that relies on this definition, section 474.17A, would be repealed by the Bill and thus the definition is no longer necessary. The definition of ‘subject’, used in the definition of ‘private sexual material’, would be also repealed as a consequential change.

1.22The Bill would also repeal subsections 473.4(2) to (4) of the Criminal Code which relate to determining whether the transmission of private sexual material is offensive.[23] As the definition of ‘private sexual material’ would be repealed, these sections would no longer be required.

New offence of transmitting sexual material without consent

1.23The Bill seeks to repeal the current offences in section 474.17A of the Criminal Code (aggravated offences involving private sexual material – using a carriage service to menace, harass or cause offence) and replace them with a new offence of using a carriage service to transmit sexual material without consent.[24]

1.24The new offence, proposed section 474.17A, would include four elements:

(a)a carriage service was used to transmit material;[25] and

(b)the other person is, or appears to be, 18 years of age or older; and

(c)the material depicts, or appears to depict:

(i)the other person engaging in a sexual pose or sexual activity; or

(ii)a sexual organ or the anal region of the other person; or

(iii)if the other person is female – the other person’s breasts; and

(d) the first person knows the other person does not consent to the transmission of the material or is reckless as to whether they consent.[26]

1.25For the proposed offence, it would be irrelevant whether the material is unaltered or created or altered using technology.[27]

1.26The presumption in section 475.1B of the Criminal Code also would apply to the proposed offence, which states that if the prosecution can prove that the person engaged in the particular conduct, it is presumed that the person used a carriage service to engage in the conduct.[28]

1.27The proposed offence would carry a maximum penalty of 6 years imprisonment.[29] This is consistent with the penalty for the current standard aggravated offence in section 474.17A of the Criminal Code.[30]

1.28Material depicting persons under the age of 18 will continue to be criminalised in the Criminal Code under the existing child abuse material provisions, including child abuse material generated by AI in division 474, subdivision D.[31]

Exceptions

1.29The Bill proposes four exceptions to the proposed offence which state that the offence would not apply if:

(a)transmitting the material is necessary for, or of assistance in, enforcing, monitoring compliance with, or investigating a contravention of, a Commonwealth, state or territory law;[32]

(b)transmitting the material is for the purpose of proceedings in a court or tribunal;[33]

(c)transmitting the material is for a genuine medical or scientific purpose;[34] or

(d)a reasonable person would consider the transmission of the material to be acceptable.[35]

1.30In relation to the fourth proposed exception, the Bill sets out a range of factors that could be considered when making the determination, including:

the nature and content of the material

the circ*mstances in which the material was transmitted

the age, intellectual capacity, vulnerability, or other relevant circ*mstance of the person depicted in the material

the degree to which the transmission affects the privacy of the depicted person

the relationship between the person transmitting the material and the person depicted

any other relevant matters.[36]

1.31The defendant would bear the evidential burden of proving an exception.

New aggravated offences

1.32The Bill would introduce two aggravated offences relating to the transmission of sexual material without consent.[37] These offences would require the underlying offence of using a carriage service to transmit sexual material without consent (proposed section 474.17A – see paragraphs 1.23–1.28 above) to be established first.

1.33The first aggravated offence, proposed subsection 474.17AA(1), would apply where a person commits the underlying offence, and the person has had three or more civil penalty orders made against them under the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of:

subsection 75(1) of the OSA; or

section 91 of the OSA that relate to removal notices given under section 89 of that Act.[38]

1.34The second aggravated offence, proposed subsection 474.17AA(5), would apply where the person created or altered the sexual material, in addition to transmitting the material without consent.[39]

1.35Both aggravated offences would carry a maximum penalty of 7 years imprisonment.[40]

Double jeopardy and associated provisions

1.36The Bill includes double jeopardy provisions which would prevent a person that has been convicted or acquitted of one of the aggravated offences (see paragraphs 1.32–1.35 above) from also being convicted of the underlying offence or the other aggravated offence, in relation to the same conduct.[41]This would also apply where a person is convicted of the underlying offence; they would not be able to be convicted of either aggravating offence in relation to the same conduct.[42]

1.37Furthermore, the Bill would allow for the setting aside of a conviction under proposed subsection 474.17AA(1) where one or more of the relevant civil penalty orders are set aside or reversed on appeal and if these civil penalty orders had not been made, the person would not have been convicted of the aggravated offence. If this occurs and the person applies to the court for the conviction to be set aside, the Bill would require the court to set aside the conviction.[43]

1.38Should the conviction be set aside in these circ*mstances, the Bill proposes not to prevent proceedings from being instituted for the underlying offence or under proposed subsection 474.17AA(5).[44]

Alternative verdicts

1.39The Bill includes provisions for alternative verdicts if an aggravated offence is not proven.

1.40The Bill would provide that where the court is not satisfied that a person is guilty of an aggravated offence beyond reasonable doubt but is satisfied that the person is guilty of either the underlying offence or the other aggravated offence, the court may find the person guilty of either of these alternative offences instead.[45]

Application of amendments

1.41Were the Bill to pass, the amendments would apply to material transmitted after the commencement of the Bill and would retrospectively apply to material created or altered prior to or after the commencement of the Bill.[46] For example, material created or altered prior to the commencement but transmitted after the commencement of the Bill would be captured by the amendments.

1.42When examining a bill, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).

Senate Standing Committee for the Scrutiny of Bills

1.43The Scrutiny of Bills Committee examined the Bill and noted there might be concerns in relation to three matters: the broad scope of the offence provisions, a reversal of the evidential burden of proof, and undue trespass on rights and liberties.[47]

1.44The Scrutiny of Bills Committee recognised that the repeal of the definition of ‘private sexual material’ means that the new offence provision in proposed section 474.17A ‘does not require that the transmission has occurred in circ*mstances that the reasonable person would regard as giving rise to an expectation of privacy’.[48] Consequently, it queried whether the new offence in proposed section 474.17A may capture material that was not intended to be captured in relation to unaltered material, for example in relation to non-sexual nudity.[49]

1.45The Scrutiny of Bills Committee was also concerned that ‘sexual pose’ was not defined in the legislation and that there was a lack of clarity about how this would be prosecuted.[50]

1.46Given the broad scope of the offence provisions, the Scrutiny of Bills Committee further queried whether retaining the existing offence in section 474.17A and creating a new offence only targeted at deepfake material was considered.[51]

1.47The Scrutiny of Bills Committee recognised the Bill proposes that the defendant bear the evidential burden in relation to proving the exceptions to the underlying offence.[52] At common law it is the prosecution’s duty ‘to prove all elements of an offence’ and any reversal of the burden must be justified and consistent with the Guide to Framing Commonwealth Offences.[53] The Scrutiny of Bills Committee considered it was unclear how the relevant matters would be peculiarly within the knowledge of the defendant which would justify a reversal of the burden.[54]

1.48The Scrutiny of Bills Committee raised concerns regarding the setting aside of a conviction under proposed subsection 474.17AA(1) and the ability to institute proceedings for the underlying offence or under proposed subsection 474.17AA(5) in relation to the same conduct.[55] It was concerned this could result in a defendant standing trial twice for the same factual circ*mstances, unduly trespassing on their rights and liberties, and given the impact criminal trial have on individuals, doing so needs a strong justification.[56]

1.49The Scrutiny of Bills Committee sought further information and justification from the Attorney-General in relation to the above matters. At the time of writing, the Attorney-General had not responded to the Scrutiny of Bills Committee’s request.

Parliamentary Joint Committee on Human Rights

1.50The Human Rights Committee examined the Bill but made no comment.[57]