House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

NOTES ON CLAUSES

Clause 1 – Short title

47. This clause provides that when the Bill is enacted, it is to be cited as the Criminal Code Amendment (Deepfake Sexual Material) Act 2024.

Clause 2 – Commencement

48. This clause sets out when the various parts of the Act will commence. Item 1 of the table provides that the whole of the Act commence on the day after the Act receives the Royal Assent.

Clause 3 – Schedules

49. This is a formal clause that enables the Schedules to amend Acts by including amendments under the title of the relevant Act.

SCHEDULE 1 – AMENDMENTS

Item 1

50. Item 1 repeals the definition of 'private sexual material' in section 473.1 of the Criminal Code. This definition is not needed because the existing offence that relies on this definition in section 474.17A of the Criminal Code will be repealed by Item 5 of Schedule 1. The definition is therefore no longer required and can be repealed.

Item 2

51. Item 2 repeals the definition of 'subject' in section 473.1 of the Criminal Code. This is a consequential change that is needed as the term 'subject' is used in the definition of 'private sexual material', which will be repealed by Item 1 of Schedule 1. This definition is therefore no longer required and can be repealed.

Item 3

52. Item 3 removes the number '(1)' in subsection 473.4(1) of the Criminal Code, which provides for the matters to be taken into account when determining whether material is offensive. This change is needed because existing subsections 473.4(2) to (4) will be repealed by Item 4 of Schedule 1. After those subsections are repealed, section 473.4 will no longer have multiple subsections and the number '(1)' is no longer required.

Item 4

53. Item 4 repeals subsections 473.4(2), (3) and (4) of the Criminal Code. These subsections currently provide for the matters to be taken into account when determining whether the use of a carriage service would be offensive in the context of the transmission of 'private sexual' material.

54. These matters are no longer required to be set out in the Criminal Code given that the definition of 'private sexual material' will be repealed by Item 1 of Schedule 1.

Item 5

Section 474.17A – Using a carriage service to transmit sexual material without consent

55. Item 5 repeals existing section 474.17A, which is an aggravated offence for using a carriage service to menace, harass or cause offence, where the underlying offence involves the transmission, making available, publication, distribution or promotion of private sexual material.

56. Item 5 inserts a new offence into the Criminal Code where a person uses a carriage service to transmit sexual material of another person who is, or appears to be, over the age of 18 years of age, without their consent.

57. To establish this offence, the prosecution will need to prove beyond a reasonable doubt that:

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the first person used a carriage service to transmit material of another person

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the other person is, or appears to be, 18 years of age or older

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the material depicts, or appears to depict:

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the other person engaging in a sexual pose or sexual activity (whether or not in the presence of other persons); or

o

a sexual organ or anal region of the other person; or

o

if the other person is female – the other person's breasts.

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the first person:

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knows that the other person does not consent to the transmission of the material; or

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is reckless as to whether the other person consents to the transmission of the material.

58. The first element of this offence in paragraph 474.17A(1)(a) requires that a person use a carriage service to transmit material of another person. Section 5.6 of the Criminal Code will apply the automatic fault element of intention to this element. Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

59. The requirement that a carriage service is used to engage in the conduct provides the relevant connection to the Commonwealth's telecommunications power under the Australian Constitution. As the offence will be inserted into Subdivision C of Division 474 of the Criminal Code, the presumption set out in section 475.1B of the Criminal Code - that conduct is engaged in using a carriage service - will apply. This presumption provides that, in relation to the element of the offences that a carriage service was used, if the prosecution proves beyond reasonable doubt that the person engaged in the relevant criminal conduct, then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct.

60. The first element of the offence requires the person to transmit material of 'another person'. This will require a real person to be depicted in the material and the offence will not apply to, for example, artistic or AI depictions of fictional characters.

61. The second element of this offence in paragraph 474.17A(1)(b) requires the other person to be, or appear to be, 18 years of age or older. This ensures that the new offences will only apply to material depicting, or appearing to depict, adults. This is appropriate given the offences include consent requirements, which are not appropriate in the context of sexual material depicting children or young people. The Criminal Code criminalises the use of carriage services for child abuse material in Division 474, Subdivision D including AI-generated, or animated child abuse material.

62. The third element of the offence in paragraph 474.17A(1)(c) requires that the material depicts or appears to depict:

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the other person engaging in a sexual pose or activity, whether or not in the presence of other persons

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a sexual organ or anal region of the other person

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or if the other person is female – the other person's breasts.

63. The list describing the material of sexual nature in paragraph 474.17A(1)(c) is consistent with the definition of private sexual material (repealed by Item 1 of Schedule 1) and child abuse material in section 473.1 of the Criminal Code.

64. The use of the phrase 'appears to depict' is intended to cover material where the depiction reasonably or closely resembles an individual to the point that it could be mistaken for them. It ensures that the offence applies where an image is obviously a representation of a real person, but for minor alterations to, for example, use AI or other technology to smooth the appearance of the person's skin or edit out a mole.

65. Paragraph 474.17A(1)(c) includes material that depicts the breasts of a female person. The reference to breasts in the plural is intended to capture a description of a singular breast, consistent with paragraph 23(b) of the Acts Interpretation Act 1901 (Cth).

66. The reference to 'if the other person is female person – the other person's breasts' is intended to include the breasts of transgender women, relying upon an interpretation of the definition of gender identity under the Sex Discrimination Act 1984.

67. The Note under subsection 474.17A(2) make clear that material created or altered in any way using technology, includes images, videos or audio depicting a person that has been edited or entirely created using technology, generating a realistic but false depiction of the person. Examples of such material are 'deepfakes' which can manipulate the movements or voices of an existing person. It is not the intention to capture manipulations of images, audio or videos that are entirely fake or depict people who do not exist.

68. The fault element for the circumstance elements in paragraphs 474.17A(1)(b) and (c) is recklessness, consistent with the default fault elements in section 5.6 of the Criminal Code. Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

69. The fourth element of this offence is that the first person either knows that the other person does not consent to the transmission of the material or is reckless as to whether the other person consented.

70. Consent is required for each particular instance of transmission of the material. For example, consent to share an image with one individual would not cover the sharing of an image with a different individual. If the person who received the image then wanted to share the image with another person, further consent from the person depicted in the image would be required.

71. Consent is not defined under this section and relies on its ordinary meaning. In this circumstance, a person would be taken to have consented to the transmission if the person freely and voluntarily agrees to the transmission.

72. The fault elements are expressly stated in the offence:

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for subparagraph 474.17A(1)(d)(i), the fault element is knowledge – under section 5.3 of the Criminal Code, a person has knowledge of a circumstance if he or she is aware that it exists or that it will exist in the ordinary course of events, and

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for subparagraph 474.17A(1)(d)(ii), the fault element is recklessness – under section 5.4 of the Criminal Code, a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk

73. The offence is not intended to capture private communications between consenting adults or interfere with private sexual relationships involving adults. For example, a willing participant in a sexual relationship sending photos of themselves in a sexual pose to their partner, would not be an offence in this section. In that context, the person depicted in the image would have consented to its transmission.

74. The offence at section 474.17A will be punishable by a maximum penalty of 6 years' imprisonment. This is in consistent with the existing maximum penalty for the standard aggravated offence for using a carriage service to menace, harass or offend involving private sexual material (repealed by Item 5 of Schedule 1), which this offence will replace.

75. This is appropriate given the serious nature of the offending behaviour and is necessary to ensure that the serious offence to use a carriage service to transmit sexual material without consent is matched by commensurate punishment. These sexually explicit deepfakes, created and shared without consent, are used to degrade and dehumanise others, particularly target women and can perpetuate harmful gender stereotypes and drive gender based violence. When they are shared with others or posted online without the consent of the person depicted, it is a serious breach of a person's privacy and can have long lasting harmful impacts on victims.

76. The penalty reflects the harm that can come from the non-consensual sharing of sexual images of another person using a carriage service such as the internet.

77. Subsection 474.17A(2) provides that, for the purpose of the offence in subsection 474.1A(1), it is irrelevant whether the material transmitted is in an unaltered form or has been created, or altered in any way, using technology. Material in unaltered form includes raw images or footage that have not been edited. Material that is altered or created using technology includes through the use of computers, software or other technology. For example, this might include the use of software such as Photoshop by the person who created the image to remove a blemish, to ensure that this type of editing does not negate the application of the offence. It would also include the use of sophisticated AI tools to create a fake, but very realistic, depiction of a real person in a sexual pose or engaged in sexual activity. This provision is framed broadly to refer to the use of technology, to ensure is technology neutral and can apply to existing and future technologies.

78. A note to subsection 474.17A(2) states that the reference to material that has been created or altered using technology includes images, videos or audio depicting a person that have been edited or entirely created using digital technology (including artificial intelligence), generating a realistic but false depiction of the person. The note clarifies that examples of such material are 'deepfakes'.

79. Subsection 474.17A(3) sets out exceptions to offence in subsection 474.17A(1). The defendant bears an evidential burden in relation to these exceptions. These exceptions recognise that the material covered by the offence in subsection 474.17A(1) may be transmitted for legitimate purposes. The exceptions apply in the following situations.

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Paragraph 474.17A(3)(a) provides an exception where the transmission of the material was necessary for, or of assistance in, enforcing a law of the Commonwealth, State or Territory, or monitoring compliance with or investigating a contravention of a law of the Commonwealth, a State or a Territory. For example, a person could share material covered by paragraph 474.17A(1)(c), without consent, with the Australian Federal Police for the purpose of reporting a possible crime or to assist in an investigation of a Commonwealth criminal offence.

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Paragraph 474.17A(3)(b) provides an exception where the transmission of the material is for the purposes of proceedings in a court or tribunal. For example, a police officer or prosecutor may electronically lodge evidence with a court in order to support the prosecution of an offence that includes an image covered by this offence.

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Paragraph 474.17A(3)(c) provides an exception where the transmission is for genuine medical or scientific purposes. For example, a doctor may email an image of a sexual organ to a colleague for the purpose of obtaining a second opinion on a medical condition, or a publication of an article on a website with anthropological or historical images that depict the breasts of a female person.

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Paragraph 474.17A(3)(d) provides an exception where a reasonable person would consider the transmission of the material to be acceptable, having regard to the following factors:

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the nature and content of the material

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the circumstances in which the material was transmitted

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the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted, or appearing to be depicted, in the material

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the degree to which the transmission of the material affects the privacy of the person depicted, or appearing to be depicted, in the material

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the relationship between the person transmitting the material and the person depicted, or appearing to be depicted, in the material, and

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any other relevant matters.

80. This is an objective test and the qualification that a reasonable person must regard the transmission as acceptable, allows community standards and common sense to be imported into a decision on whether the offence at 474.17A is made out. Examples of this include where a person has downloaded material that was published online and expected that consent was provided for the material due the commercial nature of such material and its availability, photographs of models that were specifically taken with permission for advertising or publication, or images that are solely satirical in nature.

81. The inclusion of this exception ensures that the transmission of adult pornography is not inappropriately criminalised due to the impossibility of a person assuring himself or herself that the person depicted in the image or recording has consented to its transmission.

82. The Note under subsection 474.17A(3) notes that the defendant bears an evidential burden in relation to this defence. Section 13.3 of the Criminal Code provides that the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

83. By virtue of section 473.5 of the Criminal Code, the offence does not apply to a person distributing material described in paragraph 474.17A(1)(c) if that person is a carrier, a carriage service provider, an internet service provider, or an internet content host.

84. Subsection 474.17A(4) includes a definition of the term transmits for the purpose of the offence in this section. Under this definition, this term includes make available, publish, distribute, advertise and promote. This is an inclusive definition, rather than an exhaustive definition. Including the definition ensures that these matters fall within the definition, along with its ordinary meaning.

85. Subsection 474.17A(5) provides that, for the purpose of this offence, being reckless in relation to consent includes not giving any thought to whether or not the person is consenting. This ensures that an offender is not able to avoid criminal liability by never turning their mind to whether consent exists, and therefore not meeting the knowledge or reckless fault elements required to prove paragraph 474.17A(1)(d) of the offence.

Section 474.17AA – Aggravated offences involving transmission of sexual material without consent

86. Section 474.17AA creates two aggravated offences where:

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a person transmits sexual material without consent after certain civil penalty orders are made, and

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a person creates or alters sexual material transmitted without consent.

Transmission of sexual material without consent after certain civil penalty orders were made

87. Subsection 474.17AA(1) creates an aggravated offence where a person commits an offence against section 474.17A of the Criminal Code, and before the commission of that offence, three or more civil penalty orders were made against the person for contraventions of relevant provisions of the Online Safety Act.

88. To establish this offence, the prosecution will need to prove beyond a reasonable doubt that:

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the person committed an offence against subsection 474.17A(1), and

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before the commission of the underlying offence, 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to either or both of the following:

o

contraventions of subsection 75(1) of the Online Safety Act

o

contravention of section 91 of the Online Safety Act that relate to removal notices given under section 89 of that Act.

89. A civil penalty order can be made against the person under the Regulatory Powers Act in relation to contraventions of subsection 75(1) of the Online Safety Act 2021 when a person posts or threatens to post an intimate image without the consent of the person depicted in the image. A civil penalty order can also be made in relation to contraventions of section 91 of the Online Safety Act which relate to removal notices given under section 89.

90. To establish the aggravated offence, the prosecution will be required to establish beyond reasonable doubt all of the elements constituting the underlying offence at subsection 474.17A(1), including the fault elements applicable to that offence. Subsection 474.17AA(2) provides that there is no additional fault element for the physical element in paragraph 474.17AA(1)(a) of the aggravated offence, other than the fault elements applying to the underlying offence.

91. Subsection 474.17AA(3) clarifies that a person does not commit the underlying offence for the purposes of paragraph (1)(a) of the aggravated offence if they have a defence to the underlying offence (for example one of the exceptions set out in subsection 474.17A(3)). This provision is included to avoid doubt.

92. Subsection 474.17AA(4) provides that absolute liability to the element in paragraph 474.17AA(1)(b) that 3 or more civil penalty orders were made against the person before the commission of the offence. This means that there are no fault elements for the physical element of the offence, and the defence of mistake of fact in section 9.2 of the Criminal Code is unavailable for that element. Absolute liability is appropriate for this element because it does not affect the culpability of the person, but rather sets the perimeters of the offence. If the prosecution was required to prove awareness on the part of the defendant that 3 or more civil penalty orders were made against the defendant before the commission of the offence, defendants would be able to avoid liability by demonstrating that they did not turn their minds to that issue (despite the fact that they had committed the prohibited conduct) or mistakenly believed that they were only subject to 3 civil penalty orders.

93. The offence at subsection 474.17AA(1) will be punishable by a maximum penalty of 7 years' imprisonment. This is appropriate because the aggravated offence applies where a person commits an offence to the criminal standard and after repeatedly being found liable or contraventions of the Online Safety Act relating to the non-consensual distribution of intimate images. This indicates that the person has had a continued disregard for the effect the distribution of sexual material without consent can have upon victims. The maximum penalty is consistent with the existing maximum penalty for the special aggravated offence for using a carriage service to menace, harass or offend involving private sexual material (repealed by Item 5 of Schedule 1), which this offence will replace.

Creation or alteration of transmitted of sexual material without consent

94. Subsection 474.17AA(5) creates an aggravated offence where a person commits an offence against section 474.17A of the Criminal Code, and the person was responsible for the creation or alteration of the material.

95. To establish this offence, the prosecution will need to prove beyond a reasonable doubt that:

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the person committed an offence against subsection 474.17A(1), and

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the person was responsible for the creation or alteration of the material.

96. To establish the aggravated offence, the prosecution will be required to establish beyond reasonable doubt all of the elements constituting the underlying offence at subsection 474.17A(1), including the fault elements applicable to that offence. Subsection 474.17AA(6) provides that there is no additional fault element for the physical element in paragraph 474.17AA(5)(a) of the aggravated offence, other than the fault elements applying to the underlying offence.

97. Subsection 474.17AA(7) clarifies that a person does not commit the underlying offence for the purposes of paragraph (5)(a) of the aggravated offence if they have a defence to the underlying offence (for example one of the exceptions set out in subsection 474.17A(3)). This provision is included to avoid doubt.

98. For the conduct element at paragraph 474.17AA(5)(b), the fault element is intention. Under subsection 5.2(1) of the Criminal Code, a person has intention with respect to conduct if he or she means to engage in that conduct.

99. An example of this offence is as follows. Person A takes a video recording of Person B engaging in sexual activity and Person A posts the recording on social media without the consent of Person B. Another example is where Person A uses an AI software to generate a deepfake image of Person B engaging in a sexual pose and sends that image to a group chat without the consent of Person B.

100. The offence at section 474.17AA(5) will be punishable by a maximum penalty of 7 years' imprisonment. This reflects the inclusion of the additional element in the aggravated offence that the person intentionally created the material before intentionally transmitting it, knowing or reckless as to the lack of consent. This is objectively more serious than a situation where a person transmits pre-existing material without consent. The maximum penalty will send a strong message that the creation and distribution of sexually explicit material without consent is a serious, malicious harm. The penalty is proportionate as it recognises that the creation of this material, particularly where they are false depictions such as deepfakes, can be used as tools for sexual exploitation, extortion and harassment.

Section 474.17AB Double jeopardy etc. provisions

101. This section provides for double jeopardy and how convictions must be set aside in certain circumstances.

Double jeopardy

102. Subsection 474.17AB(1) provides for situations where a person cannot be convicted of offences in order to avoid double jeopardy.

103. If a person has been convicted or acquitted of an aggravated offence specified in column 1 (see table below), that the person cannot be convicted for an offence specified in column 2 in relation to conduct that constituted the aggravated offence.

104. For example, if the defendant is convicted against the new aggravated offence in subsection 474.17AA(1) (offence for the transmission of sexual material without consent after certain civil penalty orders were made), then the defendant cannot also be convicted of an offence against subsection 474.17A(1) (transmitting sexual material without consent) or subsection 474.17AA(5) (creation or alteration of sexual material transmitted without consent) for that same conduct. This prevents a person from being punished twice for the same conduct.

105. Subsection 474.17AB(2) provides that these protections against double jeopardy do not prevent an alternative verdict under section 474.17B.

106. Subsection 474.17AB(3) provides that a person who has been convicted or acquitted of an offence against the underlying offence at subsection 474.17A(1) (transmitting sexual material without consent) cannot also be convicted of an offence against the aggravated offences (subsections 474.17AA(1) and (5)) in relation to the conduct that constituted the underlying offence. This prevents a person from being punished twice for the same conduct.

When conviction must be set aside

107. Subsection 474.17AB(4) provides that a conviction against subsection 474.17AA(1) must be set aside in the event that one or more orders made against the person under the Regulatory Powers Act are set aside or reversed on appeal. This applies where, if the order or orders in relation to those contraventions had never been made, the person could not have been convicted of the offence under subsection 474.17AA(1). Under this subsection, the court has no discretion and must set aside the conviction in these circumstances.

108. Given the aggravated offence only applies if there are 3 or more civil penalty orders, it is appropriate that a conviction for the aggravated offence must be set aside if one of those civil penalty orders is reversed or set aside. If that had been the case at the time of the prosecution of the aggravated offence then the person would not have been able to have been convicted.

109. Subsection 474.17AB(5) provides that if a conviction against subsection 474.17AA(1) is set aside under subsection 474.17AB(4), this does not prevent the proceedings being instituted for the underlying offence in subsection 474.17A(1) or the aggravated offence in section 474.17AA(5) for the same conduct.

Item 6

110. Item 6 repeals section 474.17B of the Criminal Code which provides for alternative verdicts for the existing offences in section 474.17A. This is a consequential change that is needed following the repeal of section 474.17A of the Criminal Code by Item 5 of Schedule 1.

111. Item 6 also inserts a new section 474.17B to provide for alternative verdicts if an aggravated offence against the new aggravated offences in section 474.17AA, which are inserted by Item 5 of Schedule 1.

112. Subsection 474.17B(1) provides that if the trier of fact is not satisfied that a person is guilty of an offence specified in column 1 (see table below) and is satisfied, beyond reasonable doubt, that the person is guilty of an offence against the corresponding offence specified in column 2, then it may find the person not guilty of the column 1 offence but guilty of the column 2 offence.

113. Subsection 474.17B(2) provides that the alternative verdicts in subsection 474.17B(1) only apply if the person has been accorded procedural fairness in relation to finding of guilt for the relevant offence specified in column 2.

114. For example, if a defendant is on trial for an offence against new subsection 474.17AA(5) (aggravated offence for the creation or alteration of sexual material transmitted without consent) and the jury is not satisfied that the defendant is guilty of an offence against that section, but is satisfied that he or she is guilty of the new underlying at subsection 474.17A(1) (offence for transmitting sexual material without consent), it will be able to find the defendant guilty of the offence against subsection 474.17A(1) instead.

Item 7

115. Item 7 provides that the amendments made in Schedule 1 apply in relation to material that is transmitted, made available, published, distributed, advertised or promoted after the commencement of this Schedule. However, the amendments will apply regardless of whether the material described in paragraph 474.17A(1)(c) was created or altered before or after the commencement of the Act.

116. This is operationally necessary because it would be impossible for the prosecution to prove, based on admissible evidence, precisely when material was created or altered and whether that was before or after the commencement of this Bill.

117. It is appropriate for the new offences to apply to material created or altered prior to the commencement of the Bill given that the prosecution will still need to prove that the transmission of the material and absence of consent occurred following the commencement of the Bill. In a prosecution of the aggravated offence at subsection 474.17AA(5), the prosecution would also still need to prove that the person intentionally created or altered the material, it just will not matter whether that occurred before or after the commencement of the Bill.