Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 - Initial Scrutiny [2024] AUSStaCSBSD 109 (26 June 2024)

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

Purpose	The bill seeks to amend the Criminal Code Act 1995 in relation to offences targeting the creation and non-consensual sharing of sexually explicit material online, including material that has been created or altered using technology such as deepfakes.
Portfolio	Attorney-General
Introduced	House of Representatives on 5 June 2024
Bill status	Before the House of Representatives

Broad scope of offence provisions^[62]

1.61 Item 5 of Schedule 1 to the bill introduces proposed section 474.17A into the Criminal Code Act 1995 (the Criminal Code), which replaces the existing (aggravated) offence of using a carriage service to menace, harass or cause offence by the transmission of private sexual material. In doing so, proposed section 474.17A creates an offence of using a carriage service to transmit material of another person and the material depicts or appears to depict the other person engaging in a sexual pose or sexual activity or depicts a sexual organ or the anal region or the breasts of the other person. The fault element in relation to this offence is provided in proposed paragraph 474.17A(1)(d); that the first person knows or is reckless as to whether the other person did not consent to the transmission. The offence set out in proposed section 474.17A is the underlying offence^[63] and carries a maximum penalty of imprisonment for 6 years.

1.62 As part of the amendments to the existing offence made by proposed section 474.17A, there is no longer a requirement that the transmission be regarded as menacing, harassing or offensive.^[64] Existing section 473.1 of the Criminal Code Act 1995 (Criminal Code) sets out a separate test used to determine when material is taken to be offensive. However, the removal of the requirement for the transmitted material to be offensive makes it unclear as to whether existing section 473.1 is applicable to the offence under proposed section 474.17A.

1.63 Further, the offence under existing section 474.17A of the Criminal Code requires that the transmission be of private sexual material, which is currently defined as material that depicts a person in a sexual pose or activity or material that depicts a sexual organ or the anal region or the breasts of a person in circumstances that the reasonable person would regard as giving rise to an expectation of privacy.^[65] As Item 1 of Schedule 1 repeals the definition of private sexual material, the offence under proposed section 474.17A does not require that the transmission has occurred in circumstances that the reasonable person would regard as giving rise to an expectation of privacy.

1.64 Proposed subsection 474.17A(2) clarifies that for the purposes of the offence under proposed section 474.17A, it is irrelevant whether the material transmitted is in an unaltered form or has been created or altered using technology. A note to this subsection explains this is intended to capture material including ‘deepfakes’.

1.65 When offence provisions are drafted in broad terms and without clear definitions in the bill, there may be substantial variation in the way the legislation is interpreted and applied in practice. This lack of clarity may unduly trespass on an individual's rights and liberties, as it is uncertain what an individual is and is not able to do. The committee considers that any offence provisions should be clearly drafted and sufficiently precise to ensure that any person may understand what may constitute an offence and the explanatory memorandum should explain what key terms mean and how they are intended to operate.

1.66 In this instance, the committee notes that there is no definition provided for the term ‘sexual pose’ in proposed subsection 474.17A(1) in relation to the transmitted material. The explanatory memorandum also does not provide clarity on how this term should be interpreted and it is unclear what is expected to constitute a sexual pose for the purposes of the offence under proposed section 474.17A.

1.67 The committee’s concerns are heightened in this instance as there is also a lack of clarity as to how material that depicts a sexual pose of another person is of a nature that will be prosecuted under proposed section 474.17A. In relation to this matter, the explanatory memorandum does not clarify whether existing subsection 473.1(1) will apply to the offence under proposed subsection 474.17A(1). As a result of the amendments, there is no requirement under proposed subsection 474.17A(1) that the transmission be of a nature that is offensive, as the proposed offence rather relies on the content being transmitted without consent.

1.68 The committee further notes the removal of the existing requirement for the material to depict a person in circumstances that a reasonable person would regard gives rise to an expectation of privacy. In relation to this, the explanatory memorandum explains:

In recent years, the creation and distribution of sexual material created or altered using technology is increasingly more common as AI programs become more accessible and ubiquitous. This type of AI-generated material is commonly referred to as ‘deepfakes’. The issue that arises when dealing with such material under the current framework is that because the victim is not involved in the creation of the fictional ‘deepfake’ version of themselves, an expectation of privacy may not attach to the depiction of the victim. This issue does not arise with the new offences, which do not rely on this definition and instead turn on whether the person depicted in the material consents to its transmission.^[66]

1.69 While the committee accepts the explanation that technological advances have led to material being created that does not capture an actual person, but rather uses AI-generated material which may closely resemble an actual person, the committee is concerned that in instances where the transmitted material is in relation to a person, rather than an AI-generated version, the offence provision is now broad enough to capture material that is not intended to be the subject of this offence. This is particularly so as the material need not be of a sexual pose, and it is sufficient for the material to depict genitalia to be captured by proposed paragraph 474.17A(1)(c). The committee queries whether there may be situations in which non-sexual nudity is acceptable, where there is no reasonable expectation of privacy, and seeking consent as to transmitting this material may not always be feasible (particularly as not providing thought to whether or not the person is consenting is sufficient to constitute recklessness as the fault element for this offence).^[67]

1.70 The committee therefore queries whether consideration was given to retaining the existing offence in section 474.17A of the Criminal Code for transmission of private sexual material, while creating a new offence targeted at deepfake material, and is seeking advice on the approach taken in the bill to assist the committee in assessing these scrutiny issues.

1.71 In light of the above, the committee requests the Attorney-General’s advice as to:

Reversal of the evidential burden of proof^[68]

1.72 Proposed subsection 474.17A(3) provides a number of exceptions to the offence under proposed subsection 474.17A(1). These exceptions include where transmitting the material is necessary for or of assistance in enforcing a law or monitoring compliance with, or investigating a contravention of the law;^[69] the transmission is necessary for the purposes of proceedings in a court or tribunal;^[70] or a reasonable person would consider transmitting the material to be acceptable, having regard to various circumstances, which includes the age, intellectual capacity or vulnerability of the person being depicted, the degree to which the transmission affects the privacy of the person being depicted, and the relationship between the person transmitting the material and the person depicted.^[71] A note to this provision clarifies that a defendant bears the evidential burden of proof in relation to these matters.

1.73 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interfere with this common law right.

1.74 The committee expects any such reversal of the evidential burden of proof to be justified and for the explanatory memorandum to address whether the approach taken is consistent with the Guide to Framing Commonwealth Offences, which states that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence) where:

1.75 In relation to these exceptions, the explanatory memorandum provides the following explanation:

It is reasonable and necessary for the burden of proof to be placed on the defendant in relation to the defences provided for in the Bill. If a person had a particular reason for thinking that they were transmitting the material for legitimate purposes or in circumstances where it would have been considered reasonable and acceptable, it would not be difficult for them to describe how they came to those conclusions. It would be significantly more cost effective for the defendant to assert this matter rather than the prosecution needing to prove, beyond a reasonable doubt, that the transmission of the material without consent was neither necessary, reasonable, or for a genuine purpose, in all the circumstances.^[73]

1.76 It is unclear to the committee how evidence that a transmission for the purposes of complying with or enforcing a law, or a transmission that is necessary for the purpose of a court or tribunal proceeding is both peculiarly within the defendant’s knowledge and significantly more costly and difficult for the prosecution to obtain. The committee understands that in both instances, a court, tribunal or other authority, such as the police, should be aware of the necessary information or evidence and there are appropriate channels available for prosecution to obtain this information or evidence from these bodies. The committee also notes that it is not sufficient for it to be more ‘cost effective’ for the defendant to assert a matter, but rather that it must be significantly more costly for prosecution to do so, in addition to the relevant information being peculiarly within the defendant’s knowledge.

1.77 Further, in relation to the exception under proposed paragraph 474.17A(3)(d), it is unclear to the committee how what a reasonable person would consider in relation to a transmission is a matter that is peculiarly within any person’s knowledge. The committee further notes that the circumstances to which a reasonable person would have regard to in this exception, such as the age, intellectual capacity, vulnerability, and violation of privacy of the person being depicted, and the nature of their relationship with the person capturing the material, are not information or evidence in relation to the transmission. Rather, these are perceptions of the transmission itself. The committee considers that this indicates the offence may be drafted in overly broad terms, and that these are matters that are more appropriately disproven by prosecution by including them as elements of the offence under proposed subsection 474.17A(1).

1.78 As the explanatory materials do not adequately address this issue, the committee requests the Attorney-General's detailed justification as to why it is proposed to use offence-specific exceptions (which reverse the evidential burden of proof) in relation to the offence under proposed subsection 474.17A(1), and requests further guidance as to the operation of the exceptions.

1.79 In relation to the exception under proposed paragraph 474.17A(3)(d), the committee seeks the Attorney-General’s justification as to why these matters have not been included as elements of the offence under proposed subsection 474.17A(1).

Undue trespass on rights and liberties^[74]

1.80 Item 5 of Schedule 1 to the bill introduces proposed subsection 474.17AB(5), which provides that if a person has been convicted of the aggravated offence under subsection 474.17AA(1) (‘aggravated offence’), and that conviction has been set aside under subsection 474.17AB(4), the setting aside of the conviction does not prevent the prosecution from instituting proceedings against the person for an offence under subsections 474.17A(1) or 474.17AA(5), for the same conduct.^[75]

1.81 In order to be convicted of the aggravated offence under proposed subsection 474.17AA(1), an individual has to commit the offence under subsection 474.17A(1), which is the underlying offence.^[76] Then, for the aggravated offence, the individual must also have 3 or more civil penalty orders made against them under the Regulatory Powers (Standard Provisions) Act 2014 prior to conviction of the underlying offence. Proposed section 474.17AB also sets out provisions to prevent double jeopardy, which state that a person who has been convicted or acquitted of the aggravated offence cannot then be convicted of the underlying offence.^[77] Similarly, a person who has been acquitted of the underlying offence cannot be convicted of the aggravated offence.^[78]

1.82 Under proposed subsection 474.17AB(4), if a person has been convicted of the aggravated offence, but one or more of the civil penalty orders made against the person was set aside or reversed on appeal, and if without those civil penalty orders, the person could not have been convicted of the aggravated offence, then the court must set aside the conviction.

1.83 In this instance, the explanatory memorandum does not provide any explanation for this provision, and only describes it.

1.84 The committee is concerned in this instance that a defendant could possibly be required to stand trial twice for the same factual circumstances, when guilt as to the offence relevant to the second proceeding would already have been established in the first proceeding. The committee notes the impact criminal trials have on individuals therefore considers a strong justification should be provided as to why it is necessary in this instance for an individual to stand trial twice.

1.85 In light of the above, the committee seeks the Attorney-General’s justification as to why it is necessary for the prosecution to institute proceedings as a result of proposed subsection 474.17AB(5) for an offence under proposed subsection 474.17A(1) when a conviction is set aside under proposed subsection 474.17AB(4), noting that this would require a person to stand trial twice for the same factual circumstances when guilt as to the offence under proposed subsection 474.17A(1) would already have been established in a previous proceeding.

^[61] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Criminal Code Amendment (Deepfake Sexual Material) Bill 2024, Scrutiny Digest 7 of 2024; [2024] AUSStaCSBSD 109.

^[62] Schedule 1, item 5, proposed section 474.17A. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[68] Schedule 1, Item 5, proposed subsection 474.17A(3). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[74] Schedule 1, item 5, proposed subsection 474.17AB(5). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests