21st Aug 2024, 11:21 AM – Senate Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 - in Committee - Material created or altered using digital technology

The majority voted against an amendment introduced by West Australian Senator Michaelia Cash (Liberal), which means it failed.

What did this amendment do?

Senator Cash explained that:

I'm offering in terms of the amendment—I understand it won't be supported, but by way of explanation—a way forward that avoids the drafting problems, risks and unintended consequences associated with the government's unusual drafting choices in this bill. It is an amendment that means simply clarifying that the existing aggravated offence—that means the definition of consent remains; we don't have the issues arising in terms of cross-examination—applies to deepfakes, as it was always intended to. This is an approach that preserves the advantages the Law Council spoke about but, as I said, also addresses the potential concerns that have been raised in relation to the Attorney-General's unusual drafting choices. It preserves the definition of consent but reduces the risk that a prosecution will fall over—this is always a risk when you're actually prosecuting something and you now need to prove the consent, because consent is an element of the offence—because a victim is reluctant to be cross-examined in a court. It is a better way to arrive at the destination that the government is aiming for. As I said, we get to the same destination. We would argue it is a better way to do it, and it addresses the unusual drafting choices but also the unintended consequences in terms of the risks that prosecutions will fall over because a victim is reluctant to be cross-examined in court.

Amendment text

(1) Schedule 1, page 3 (line 1) to page 9 (line 5), omit Schedule 1, substitute:

Schedule 1 — Amendments

Criminal Code Act 1995

1 Section 473.1 of the Criminal Code (at the end of the definition of material )

Add:

Note: See also section 473.6 (which deals with material that has been created or altered using digital technology).

2 Section 473.1 of the Criminal Code (definition of private sexual material ) (note)

Omit "Note", substitute "Note 1".

3 Section 473.1 of the Criminal Code (at the end of the definition of private sexual material )

Add:

Note 2: See also section 473.6 (which deals with material that has been created or altered using digital technology).

4 At the end of Division 473.1 of Part 10.6 of the Criminal Code

Add:

473.6 Material created or altered using digital technology

(1) To avoid doubt, the definition of material in section 473.1 includes material that has been created, or altered in any way, using technology.

Note: This 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. Examples of such material are "deepfakes".

(2) For the purposes of the definition of private sexual material in section 473.1, in deciding whether a depiction covered by paragraph (a) or (b) of that definition is in circumstances that reasonable persons would regard as giving rise to an expectation of privacy, the following matters are irrelevant:

(a) whether the material mentioned in that paragraph:

(i) is in an unaltered form; or

(ii) has been created, or altered in any way, using technology;

(b) if the material mentioned in that paragraph has been created, or altered in any way, using technology—whether the person depicted in that material authorised, or was otherwise involved in, the creation or alteration of that material.

Note: For example, material depicting a person's (the victim's) face is publicly available. Another person uses technology to alter other material (the altered material) by superimposing the victim's face onto the altered material, such that the altered material appears to show the victim engaging in sexual activity. This depiction of the victim in the altered material may be in circumstances that reasonable persons would regard as giving rise to an expectation of privacy.

5 Application of amendments

The amendments made by this Schedule apply in relation to material that is transmitted, made available, published, distributed, advertised or promoted after the commencement of this Schedule, whether the material was created or altered before, on or after that commencement.

[material created or altered using technology]