Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 - Commentary on Ministerial Responses [2024] AUSStaCSBSD 154 (14 August 2024)

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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’s Department
Introduced	House of Representatives on 5 June 2024
Bill status	Before the Senate

Broad scope of offence provisions
Reversal of the evidential burden of proof^[113]

2.28 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^[114] and carries a maximum penalty of imprisonment for 6 years.

2.29 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’.^[115] As this bill 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.

2.30 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’.

2.31 Proposed subsection 474.17A(3) provides a number of exceptions to the offence under proposed subsection 474.17A(1). These exceptions include:

2.32 In Scrutiny Digest 7 of 2024, the committee requested the Attorney-General’s advice on a number of matters including whether a definition of the term ‘sexual pose’ can be provided, why the existing offence has been broadened to capture AI-Generated material rather than the creation of a separate offence to prosecute that material and why it was proposed to use offence-specific exceptions (which reverses the burden of proof) and why certain matters were not included as elements of the offence.^[119]

Attorney-General’s response^[120]

2.33 In answer to the committee’s first query, the Attorney-General advised that the language of ‘sexual pose’ is not new and already exists within the Criminal Code in the definitions of ‘child abuse material’ and ‘private sexual material’ which are both found in section 473.1. The Attorney-General advised that not defining the term ‘sexual pose’ ensures that the relevant offences are interpreted in line with societal norms, and in-line with the complexities of sexuality and sexualisation of persons when related to adults, noting that a specific statutory meaning could lead to conduct being criminalised that over time reasonable persons would come to accept. The Attorney-General stated that the current approach is reliant upon case law to determine how these offences are applied and that this approach is broadly consistent with comparative Commonwealth, state and territory offences.

2.34 In relation to the committee’s query regarding why the existing offences were not broadened to capture AI-generated material, the Attorney-General noted that offences are technology-neutral and can apply to existing and future technologies. The Attorney-General stated that the new offences capture both simulated and real material, and that ultimately what is being criminalised is the transmission of sexual material without consent.

2.35 In relation to the reversal of the evidential burden of proof, the Attorney-General stated that this is appropriate as the matters identified in each of the exceptions are expected to be peculiarly within the defendant’s knowledge and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. The Attorney-General also stated in relation to the defence of whether a reasonable person would consider transmitting the material to be acceptable,^[121] that the test is an objective one and has been introduced ‘to ensure that conduct that would otherwise be acceptable by a reasonable person is not subject to overly-broad criminalisation’. The Attorney-General advised that material considered socially acceptable to transmit can in fact be transmitted notwithstanding that they meet the meaning of sexual material. The Attorney-General did not directly address the question of why this exception was not included as an element of the offence rather than being made a defence. Rather, the Attorney-General advised that the circumstances around the transmission of the material will be uniquely in the knowledge of the defendant and significantly more difficult for the prosecution to prove that certain matters were not reasonable according to socially acceptable standards.

Committee comment

2.36 The committee thanks the Attorney-General for this advice which addresses some of the committee’s concerns.

2.37 The committee notes the advice around the difficulty in defining ‘sexual pose’. The committee notes that this term was first introduced in relation to child sexual abuse material and notes that what constitutes a sexual pose may be clearer when it comes to criminalising conduct relating to children rather than sexual poses by adults where, as the Attorney-General notes, there may be complexities relating to sexuality or sexualisation of adults. However, the committee appreciates the difficulty in defining this further in the legislation, and notes that its discussion below regarding the breadth of the offence is discussed further below.

2.38 The committee also appreciates the advice provided in relation to why the offence has been broadened to encompass real and simulated material in order to apply to existing and future technologies, and makes no further comment in relation to this.

2.39 However, it remains unclear why it is necessary to place an evidential burden on the defendant to raise evidence demonstrating that the transmission was necessary for the enforcement of a law or for the purposes of a court or tribunal proceeding.^[122] It is still unclear to the committee how these matters may be peculiarly within a defendant’s knowledge or more difficult for the prosecution to prove as they relate to transmissions that are required for law enforcement or proceedings in a court or tribunal – matters which the state would appear to be more in a position to raise evidence in relation to rather than the defendant. The committee does not consider the justification provided to be sufficient for reversing the evidential burden of proof in these instances.

2.40 The committee also remains concerned that in order to limit the breadth of the offence provision, the approach adopted has been to create an exception to the offence which relies on a defendant providing evidence to suggest a possibility that a reasonable person would consider transmitting the material to be acceptable, having regard to a range of circumstances. The Attorney-General advised that this exception was included to ensure that conduct that would otherwise be acceptable by a reasonable person is not subject to overly broad criminalisation. This indicates that the offence as it stands is overly broad and relies on exceptions to ensure conduct is not captured that a reasonable person would not consider should be criminalised. However, in making this an exception it means a person would be liable to be prosecuted for such an offence and it would be incumbent on the person to raise evidence to demonstrate that a reasonable person would consider transmitting the material to be acceptable. So, using the example provided by the Attorney-General, where a person downloads material published online in circumstances where, due to the commercial nature of the material, they expected consent had been provided such persons would be liable to be prosecuted under these proposed provisions and it would require them to raise at trial evidence that a reasonable person would consider the transmission to be acceptable.

2.41 As this is an objective test, it is unclear why this should rest on the defendant to raise evidence in relation to and how such matters are peculiarly within any person’s knowledge. The relevant concern is whether a reasonable person would consider it socially acceptable to transmit the material. Further, the matters that a reasonable person would have regard to do not relate to information as much as they relate to observations that a person would make of another person (for example, in relation to that person’s age, vulnerability or intellectual capacity) having viewed the transmitted material.

2.42 It is unclear to the committee why this exception cannot instead be made an element of the offence and why the prosecution cannot engage in this test to determine whether a reasonable person, having regard to the listed circumstances, would consider the material socially acceptable to transmit as part of proving the elements of the offence under proposed subsection 474.17A(1). The committee notes that the Criminal Code Act 1995 already places requirements on the prosecution to prove that something occurred in circumstances that a reasonable person would consider amounted to a specified matter. For example, using a carriage service in ways that a reasonable person would regard as being, in the circumstances, menacing, harassing or offensive, or that the depiction of material is in circumstances that a reasonable person would regard as giving rise to an expectation of privacy.^[123]

2.43 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of relying on an offence-specific exception to ensure the offence is not overly broad, noting that this would criminalise conduct in circumstances that a reasonable person would consider to be socially acceptable – placing the burden on the defendant to raise evidence to prove otherwise (rather than making this an element of the offence).

Undue trespass on rights and liberties^[124]

2.44 The bill also 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 (on the basis that unrelated civil penalties have been set aside),^[125] the setting aside of the conviction does not prevent the prosecution from instituting proceedings against the person for the underlying offence^[126] for the same conduct. In order to be convicted of the aggravated offence, an individual has to commit the offence under subsection 474.17A(1), which is the underlying offence.^[127] 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.

2.45 In Scrutiny Digest 7 of 2024, the committee requested the Attorney-General’s advice as to why it was 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 underlying offence would already have been established in a previous proceeding.^[128]

Attorney-General’s response^[129]

2.46 The Attorney-General advised that proposed subsection 474.17AB(4) largely mirrors a similar provision under existing offences and critically preserves the ability for separate criminal proceedings to be undertaken against a defendant to hold them accountable for their actions where the grounds forming the basis for a conviction against subsection 474.17AA(1) have fallen away. The Attorney-General also advised that this is important and appropriate to ensure that perpetrators are held accountable for their conduct.

Committee comment

2.47 The committee thanks the Attorney-General for this advice and acknowledges the necessity of ensuring that a person is held accountable for their conduct. However, the committee notes that the Attorney-General’s advice does not address whether proposed subsection 474.17AB(5), which does not prevent the prosecution from instituting new proceedings in relation to the underlying offence after a conviction has been set aside, is consistent with the rule of double jeopardy.

2.48 At common law, the concept of double jeopardy is used in connection with several stages of the process of criminal justice, including prosecution, conviction and punishment. The High Court in Pearce v The Queen quoted from a United States Supreme Court case as to the rationale for the rule against double jeopardy:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.^[130]

2.49 The High Court has noted the importance of the value of the prohibition against double jeopardy. But in Pearce v The Queen McHugh, Hayne and Callinan JJ also noted that while this value is pervasive ‘it is not the only force at work in the development of the common law’. One relevant consideration is that ‘a single series of events can give rise to several different criminal offences to which different penalties attach.^[131] However, issues of double jeopardy may arise where there is overlap between different charges, in particular whether the essential elements of each offence are said to be duplicated. As Kirby J put it in Pearce v The Queen: ‘it is necessary to show that the subject of the second prosecution or charge is the same offence or substantially or practically the same’. Elements which add distinct and different features (normally of aggravation) ‘will result in differentiation between charges which is legally significant’ and prosecution of these two different offences would not offend the concept of double jeopardy.^[132]

2.50 In this case, proposed subsection 474.17AA(1) makes it an aggravated offence if the person has committed the underlying offence and, before the commission of this offence, three or more relevant civil penalty orders had been made against the person. The question of whether the civil penalty orders were made is subject to absolute liability, meaning there is no requirement for the prosecution to prove any fault in relation to this, it is enough that the orders were made. The trial for this aggravated offence would therefore need to focus on whether the underlying offence had been committed. If a conviction for this offence was later set aside on the basis that one or more of the civil penalty provisions had been set aside or reversed on appeal, a prosecution for the underlying offence would be a trial based on the exact same fault elements as the earlier trial. This would appear to indicate that this new trial in relation to the underlying offence is for practically the same charge as the aggravated offence.^[133] As such, under common law, the courts may find this to be in violation of the principle of double jeopardy. However, as a result of proposed subsection 474.17AB(5) the courts would have no such discretion as this provision would override the common law position.

2.51 However, the committee also notes that the courts would appear to retain their general discretion to grant a permanent stay of a subsequent prosecution if a second trial would be oppressive because the defendant could be subjected to two separate and lengthy trials for offences arising largely out of the same facts and circumstances.^[134]

2.52 Noting that subsection 474.17AB(5) appears likely to override the common law prohibition against double jeopardy, the committee draws these scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of enabling a new trial to be instituted after a conviction under subsection 474.17A(1) has been set aside.

^[112] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Criminal Code Amendment (Deepfake Sexual Material) Bill 2024, Scrutiny Digest 9 of 2024; [2024] AUSStaCSBSD 154.

^[113] 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).

^[119] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 7 of 2024 (26 June 2024) pp. 17-19 and 20-21.

^[120] The minister responded to the committee’s comments in a letter dated 12 July 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 9 of 2024).

^[123] Criminal Code, section 474.17 and 473.1 (definition of ‘private sexual material’).

^[124] 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).

^[129] The minister responded to the committee’s comments in a letter dated 12 July 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 9 of 2024).

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