Criminal Code Amendment (Deepfake Sexual Material) Bill 2024
15 August 2024
In recent weeks, the Law Council has played a critical role in scrutinising new laws that seek to strengthen offences that deal with the non-consensual sharing of sexually explicit material online, including material created or altered using deepfake technology. On 30 July 2024, the Law Council lodged a written submission to the Senate Legal and Constitutional Affairs Committee in relation to the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 (the Bill). In that submission, the Law Council emphasised the need for well-drafted, clear and certain criminal offences at the Commonwealth level to denounce, deter and mitigate the harms arising from the creation and non-consensual sharing of technologically facilitated image-based sexual abuse (including material that has been created or altered using technology such as deepfakes).
The Law Council’s submission recognised that as technology evolves, there is a need to reevaluate the adequacy of Australia’s criminal laws to ensure that the specific harms caused by non-consensual sharing of intimate images (including deepfake material) are minimised. That revaluation should be informed by consideration of similar intimate image-based sexual abuse offences introduced in states and territories in recent years. The Appendix to the submission sets out inconsistencies in the offence structure, applicable defences and penalties applicable to intimate image-based sexual abuse offences introduced in states and territories.
On 8 August 2024, the Senate Committee handed down its report on the Bill. The Committee has recommended the Bill pass, subject to the following recommendations:
- that the Attorney-General reviews the threshold outlined in proposed subsection 474.17AA(1) after two years of the Bill’s operation;
- that the Attorney-General continues work already underway via the Standing Council of Attorneys-General in relation to development of harmonised offences across Australian jurisdictions for the:
- non-consensual creation of sexual material; and
- threat to non-consensual creation and/or distribution of sexual material that does not use a carriage service; and
- that the Education Ministers Meeting continues to progress their work to strengthen respectful relationships in schools.
All three of the above recommendations reflect key Law Council submissions.
Key aspects of the Law Council’s submission that have been highlighted by the Committee in its report included:
- the need to consider the reform measures together with related work underway, including the Privacy Act Review and the Online Safety Act Review;
- the potential for the proposed offences to apply to a wide range of innocuous conduct due to its broad drafting;
- the desirability in including a reference to community standards of acceptable conduct as an element of the proposed offence;
- the reversal of the evidential onus in relation to the exceptions to the proposed offence;
- the potentially disproportionate penalties (6 years for the primary offence and 7 years for the aggravated offences) attached to the new offences when considered in light of maximum penalties under comparable state and territory offences for technology-facilitated intimate image-based sexual abuse (generally, 3 years); and
- the desirability of including a requirement for consent to be sought from the CDPP prior to commencing prosecutions against children under 16 years of age.
The Law Council’s submission was shaped by thoughtful viewpoints received from the Law Institute of Victoria, the Law Society of New South Wales and the Law Society of South Australia as well as the Law Council’s National Criminal Law Committee.
Last Updated on 22/08/2024