Division Description Changes — Bills — Criminal Code Amendment (Deepfake Sexual Material) Bill 2024; in Committee — 21st Aug 2024

Change	Division
senate vote 2024-08-21#6 Edited by mackay staff on 2024-09-01 11:18:10	Title Bills — Criminal Code Amendment (Deepfake Sexual Material) Bill 2024; in Committee Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 - in Committee - Material created or altered using digital technology Description ~~<p class="speaker">Michaelia Cash</p>~~ <p>At the outset of this contribution in the committee stage, there are just a number of technical issues that I will be canvassing and making comment on, but, again, I make it very clear that we fully support the intention of the bill and will not stand in the way of its passage. It has been our position since 2018, and it's consistent with the government's, that deepfakes and revenge porn should be dealt with in our criminal law.</p> The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2024-08-21.48.1) introduced by West Australian Senator [Michaelia Cash](https://theyvoteforyou.org.au/people/senate/wa/michaelia_cash) (Liberal), which means it failed. ### What did this amendment do? Senator Cash [explained that](https://www.openaustralia.org.au/senate/?gid=2024-08-21.48.1): *> 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 defini*tion 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 defin*ition 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] <p>However, when you look at the way that this particular bill has been drafted to address the issue, there are, potentially, a number of unintended consequences. Just to be clear, for the purposes of the debate: the offences in this bill are not just about deepfakes; they are also about so-called revenge porn. So it's important, in terms of the technical drafting of the bill, that we don't forget that the bill deals with not one issue but two issues: deepfakes and revenge porn.</p> <p>If we look at the historical context of where we have been, what's in place and where we will be going to, the new offences in the bill replace the existing laws about revenge porn and deepfakes in section 474.17A of the Criminal Code—and they were, of course, introduced under the former coalition government in 2018. It's worth putting on the record the now Labor government's role in passing those provisions. It's a matter of public record that, as the shadow attorney-general at the time, Mr Dreyfus worked with the coalition to settle those provisions and ensure that they indeed did pass the parliament, and, in fact, in parliament, Tanya Plibersek expressly acknowledged Mr Dreyfus's role in settling and passing the current laws. So the Attorney-General worked with us when he was in opposition to pass the laws, and, indeed, the legal definition of 'private sexual material', which is the term that is now described as 'problematic'. That has now been put forward as the rationale for getting rid of the existing offences about deepfakes and revenge porn, even though this was originally drafted by Labor.</p> <p>This is where the historical context of what we are looking at today does become so important. If you actually look at the legal definition of 'private sexual material', as far as we can identify, it was first developed by Mr Tim Watts and Ms Terri Butler in 2015, when they included it as a definition in a private member's bill which was later described as being the then Labor Party's policy. That's fine, as I said, because we obviously agreed with that at the time, and we worked with the then opposition to ensure the passing of what are now the current criminal offences. At that time, we had been quite clear, and it was always intended, that that particular term would capture both revenge porn and deepfakes. So that's the historical context for the current law and what it reflected.</p> <p>To come forward to the present day: the offence provision in this bill is now drafted in a new way. It is now framed around consent. But one of the technical issues that has arisen is that, while the government is telling us it wants to move to an offence based on consent, it's actually repealing the definition of 'consent'.</p> <p>In terms of the drafting decision itself, it is not consistent with expert evidence around best practice. In fact, this is what the New South Wales Law Reform Commission report on consent in relation to sexual offences in 2020 said. The commission reviewed changes in the law over time and said:</p> ~~<p class="italic">3.48 The law on sexual offences in NSW has undergone significant changes in the past 40 years. Consent is now defined in a way that reflects communicative principles.</p>~~ ~~<p>They then went on to say:</p>~~ ~~<p class="italic">5.14 We recommend that the law continue to define consent as requiring free and voluntary agreement—</p>~~ <p>Again, look at what this bill is doing. It's repealing the definition of consent. So, instead of keeping a clear definition based on communicative principles, we are, in fact, removing the definition of consent as 'free and voluntary agreement'. That then raises some immediate questions about what this means in practice and—this is the issue we canvassed in our second reading speeches—the resulting lack of clarity that will play out in court. For example, what does consent mean when you're dealing with sexual material involving people with disability or dementia? What does consent mean when you're dealing with people from non-English speaking backgrounds, both victims and perpetrators? Does the lack of clarity in the legislation now mean that courts will need to look at cultural barriers, linguistic barriers? And could consent be implied from the circumstances? We actually don't know, and this is the issue that we have in terms of the new bill. We actually don't know how this is going to play out in court because of the unusual drafting choice that the Attorney-General has made.</p> <p>Where we end up, though, with the Attorney-General's choice is this: the design of the offence means that the prosecution will need to prove the element relating to consent for each prosecution, and again this raises questions, particularly about how it would play out in revenge porn cases, because all too often one of the issues we see with revenge porn is that victims do consent to the sharing of some material but only for very limited purposes with a particular person. The perpetrator then violates that trust by sharing the material in ways that the victim never intended. You need to prove the consent issue to secure the prosecution. And, as I said, one of the big issues—and we canvassed this in our second reading speeches—is it's not hard to imagine, based on the drafting by the Attorney-General, the consent issue now being a contested point in a trial. What does that then look like in the practical reality? This bill will go through; the law will change, so what will the then practical reality actually look like? Well, it will mean a greater likelihood of needing to lead evidence about consent and, in turn—and, again, this was one of the issues we raised in our second reading speeches—more cross-examination about exactly what things the victim did or did not consent to. You don't need to be an expert to understand how confronting and intrusive this might be for victims, given we have a current law that does not enliven these circumstances. As a parliament, we should be cautious before going down that pathway.</p> <p>Minister, one of the questions that we continue to ask in relation to the drafting of the bill and, in particular, in terms of the context of the amendment on sheet 2659 that the coalition will be moving but also in terms of comments that have previously been made—I read from the New South Wales Law Reform Commission report on consent in relation to sexual offences in 2020—is: why is the government repealing the definition of consent?</p> ~~<p class="speaker">Murray Watt</p>~~ <p>This bill does not remove the concept of consent and its application to the new offences. It simply builds consent into the text of the offence. While the bill does not define consent, it relies on the ordinary meaning, which is generally understood as free and/or voluntary decision or agreement, and this is clearly stated in the explanatory material for the bill. The previous definition was relevant to determining whether material was offensive. The elements of the new offence do not require the material to be offensive, so the previous definition is obsolete.</p> ~~<p class="speaker">Michaelia Cash</p>~~ <p>I understand what you've just said. In fact, I think I read out evidence similar to that. That wasn't exactly the issue. I want to understand the rationale for removing the definition of 'consent', given that there is currently a definition and given the concerns that have been raised particularly by legal experts. But, more than that, what now will actually occur in terms of needing to prove the consent issue to secure prosecution? Consent is likely now to become a contested issue at trial, which then means greater likelihood of needing to lead evidence about consent. Therefore, the natural progression of that becomes more cross-examination of the victims and in particular about what a victim did or didn't consent to, which obviously means more pressure on the victims. That means they're now in court and are having to answer questions on this. So the question is not so much about what you're doing. I understand what you're doing. It is about why you're removing the definition.</p> ~~<p class="speaker">Murray Watt</p>~~ <p>As I said in my previous answer, the previous definition of 'consent' was relevant under the previous law to determining whether material was offensive or not, but the elements of the new offence do not require the material to be 'offensive' and so that previous definition is obsolete. The definition of 'consent' applied to the requirement for material to be offensive, and that requirement doesn't exist anymore. Therefore we don't need the definition. Having said that, as I said in my previous answer, it would be expected that the court would rely on the ordinary meaning of the term 'consent', and I explained what that is.</p> <p>You did just raise the point about cross-examination, Senator Cash, so I thought I might point out here that the new offence requires the person alleged to have committed the offence to either know that the victim does not consent or be reckless as to the lack of consent. Whether a victim is involved in a prosecution to give evidence will be determined on a case-by-case consideration, based on the individual circumstances and admissible evidence. It should also be noted that Commonwealth criminal offences are typically tried in state courts, which will apply state and territory procedural and evidence laws. Many states have specific frameworks for the evidence of special witnesses, including alleged victims of sexual offences.</p> ~~<p class="speaker">Michaelia Cash</p>~~ <p>The issue that arises, though, is that, in the absence of a clear definition—which we know is being removed—there is now room to argue what 'consent' may or may not mean in the context of the trial. So what I'm trying to explore is how it will play out in a prosecution under this law. I would argue that you'd need the definition of 'consent' in the current law to be replicated in this bill because you've made consent an express part of the offence but you've removed 'consent' by way of a definition. The issue that has been raised with us in particular by victims is that the move to the new laws will create more room for cross-examination to occur, which is obviously what they don't want. That's the issue I have in terms of how it plays out in the court. Our amendment clearly mitigates that, but are there any ways you can mitigate the potential exposure for victims? It's the victims who are raising this with us. They don't want to be cross-examined on consent in the court.</p> ~~<p class="speaker">Murray Watt</p>~~ <p>As I said in my first answer, the intention would be that courts would rely on the ordinary meaning of the term 'consent', and that is generally understood as 'free and/or voluntary decision or agreement'. I remind Senator Cash that this is set out in the explanatory material for the bill. The point about cross-examination is valid, and, as I said in my previous answer, there are frameworks that exist at state and territory level to deal with the evidence of alleged victims of sexual offences.</p> ~~<p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>~~

~~Michaelia Cash~~
At the outset of this contribution in the committee stage, there are just a number of technical issues that I will be canvassing and making comment on, but, again, I make it very clear that we fully support the intention of the bill and will not stand in the way of its passage. It has been our position since 2018, and it's consistent with the government's, that deepfakes and revenge porn should be dealt with in our criminal law.
The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2024-08-21.48.1) introduced by West Australian Senator [Michaelia Cash](https://theyvoteforyou.org.au/people/senate/wa/michaelia_cash) (Liberal), which means it failed.
### What did this amendment do?
Senator Cash [explained that](https://www.openaustralia.org.au/senate/?gid=2024-08-21.48.1):
> *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 al*tered 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]*
However, when you look at the way that this particular bill has been drafted to address the issue, there are, potentially, a number of unintended consequences. Just to be clear, for the purposes of the debate: the offences in this bill are not just about deepfakes; they are also about so-called revenge porn. So it's important, in terms of the technical drafting of the bill, that we don't forget that the bill deals with not one issue but two issues: deepfakes and revenge porn.
If we look at the historical context of where we have been, what's in place and where we will be going to, the new offences in the bill replace the existing laws about revenge porn and deepfakes in section 474.17A of the Criminal Code—and they were, of course, introduced under the former coalition government in 2018. It's worth putting on the record the now Labor government's role in passing those provisions. It's a matter of public record that, as the shadow attorney-general at the time, Mr Dreyfus worked with the coalition to settle those provisions and ensure that they indeed did pass the parliament, and, in fact, in parliament, Tanya Plibersek expressly acknowledged Mr Dreyfus's role in settling and passing the current laws. So the Attorney-General worked with us when he was in opposition to pass the laws, and, indeed, the legal definition of 'private sexual material', which is the term that is now described as 'problematic'. That has now been put forward as the rationale for getting rid of the existing offences about deepfakes and revenge porn, even though this was originally drafted by Labor.
This is where the historical context of what we are looking at today does become so important. If you actually look at the legal definition of 'private sexual material', as far as we can identify, it was first developed by Mr Tim Watts and Ms Terri Butler in 2015, when they included it as a definition in a private member's bill which was later described as being the then Labor Party's policy. That's fine, as I said, because we obviously agreed with that at the time, and we worked with the then opposition to ensure the passing of what are now the current criminal offences. At that time, we had been quite clear, and it was always intended, that that particular term would capture both revenge porn and deepfakes. So that's the historical context for the current law and what it reflected.
To come forward to the present day: the offence provision in this bill is now drafted in a new way. It is now framed around consent. But one of the technical issues that has arisen is that, while the government is telling us it wants to move to an offence based on consent, it's actually repealing the definition of 'consent'.
In terms of the drafting decision itself, it is not consistent with expert evidence around best practice. In fact, this is what the New South Wales Law Reform Commission report on consent in relation to sexual offences in 2020 said. The commission reviewed changes in the law over time and said:
~~3.48 The law on sexual offences in NSW has undergone significant changes in the past 40 years. Consent is now defined in a way that reflects communicative principles.~~
~~They then went on to say:~~
~~5.14 We recommend that the law continue to define consent as requiring free and voluntary agreement—~~
Again, look at what this bill is doing. It's repealing the definition of consent. So, instead of keeping a clear definition based on communicative principles, we are, in fact, removing the definition of consent as 'free and voluntary agreement'. That then raises some immediate questions about what this means in practice and—this is the issue we canvassed in our second reading speeches—the resulting lack of clarity that will play out in court. For example, what does consent mean when you're dealing with sexual material involving people with disability or dementia? What does consent mean when you're dealing with people from non-English speaking backgrounds, both victims and perpetrators? Does the lack of clarity in the legislation now mean that courts will need to look at cultural barriers, linguistic barriers? And could consent be implied from the circumstances? We actually don't know, and this is the issue that we have in terms of the new bill. We actually don't know how this is going to play out in court because of the unusual drafting choice that the Attorney-General has made.
Where we end up, though, with the Attorney-General's choice is this: the design of the offence means that the prosecution will need to prove the element relating to consent for each prosecution, and again this raises questions, particularly about how it would play out in revenge porn cases, because all too often one of the issues we see with revenge porn is that victims do consent to the sharing of some material but only for very limited purposes with a particular person. The perpetrator then violates that trust by sharing the material in ways that the victim never intended. You need to prove the consent issue to secure the prosecution. And, as I said, one of the big issues—and we canvassed this in our second reading speeches—is it's not hard to imagine, based on the drafting by the Attorney-General, the consent issue now being a contested point in a trial. What does that then look like in the practical reality? This bill will go through; the law will change, so what will the then practical reality actually look like? Well, it will mean a greater likelihood of needing to lead evidence about consent and, in turn—and, again, this was one of the issues we raised in our second reading speeches—more cross-examination about exactly what things the victim did or did not consent to. You don't need to be an expert to understand how confronting and intrusive this might be for victims, given we have a current law that does not enliven these circumstances. As a parliament, we should be cautious before going down that pathway.
Minister, one of the questions that we continue to ask in relation to the drafting of the bill and, in particular, in terms of the context of the amendment on sheet 2659 that the coalition will be moving but also in terms of comments that have previously been made—I read from the New South Wales Law Reform Commission report on consent in relation to sexual offences in 2020—is: why is the government repealing the definition of consent?
~~Murray Watt~~
This bill does not remove the concept of consent and its application to the new offences. It simply builds consent into the text of the offence. While the bill does not define consent, it relies on the ordinary meaning, which is generally understood as free and/or voluntary decision or agreement, and this is clearly stated in the explanatory material for the bill. The previous definition was relevant to determining whether material was offensive. The elements of the new offence do not require the material to be offensive, so the previous definition is obsolete.
~~Michaelia Cash~~
I understand what you've just said. In fact, I think I read out evidence similar to that. That wasn't exactly the issue. I want to understand the rationale for removing the definition of 'consent', given that there is currently a definition and given the concerns that have been raised particularly by legal experts. But, more than that, what now will actually occur in terms of needing to prove the consent issue to secure prosecution? Consent is likely now to become a contested issue at trial, which then means greater likelihood of needing to lead evidence about consent. Therefore, the natural progression of that becomes more cross-examination of the victims and in particular about what a victim did or didn't consent to, which obviously means more pressure on the victims. That means they're now in court and are having to answer questions on this. So the question is not so much about what you're doing. I understand what you're doing. It is about why you're removing the definition.
~~Murray Watt~~
As I said in my previous answer, the previous definition of 'consent' was relevant under the previous law to determining whether material was offensive or not, but the elements of the new offence do not require the material to be 'offensive' and so that previous definition is obsolete. The definition of 'consent' applied to the requirement for material to be offensive, and that requirement doesn't exist anymore. Therefore we don't need the definition. Having said that, as I said in my previous answer, it would be expected that the court would rely on the ordinary meaning of the term 'consent', and I explained what that is.
You did just raise the point about cross-examination, Senator Cash, so I thought I might point out here that the new offence requires the person alleged to have committed the offence to either know that the victim does not consent or be reckless as to the lack of consent. Whether a victim is involved in a prosecution to give evidence will be determined on a case-by-case consideration, based on the individual circumstances and admissible evidence. It should also be noted that Commonwealth criminal offences are typically tried in state courts, which will apply state and territory procedural and evidence laws. Many states have specific frameworks for the evidence of special witnesses, including alleged victims of sexual offences.
~~Michaelia Cash~~
The issue that arises, though, is that, in the absence of a clear definition—which we know is being removed—there is now room to argue what 'consent' may or may not mean in the context of the trial. So what I'm trying to explore is how it will play out in a prosecution under this law. I would argue that you'd need the definition of 'consent' in the current law to be replicated in this bill because you've made consent an express part of the offence but you've removed 'consent' by way of a definition. The issue that has been raised with us in particular by victims is that the move to the new laws will create more room for cross-examination to occur, which is obviously what they don't want. That's the issue I have in terms of how it plays out in the court. Our amendment clearly mitigates that, but are there any ways you can mitigate the potential exposure for victims? It's the victims who are raising this with us. They don't want to be cross-examined on consent in the court.
~~Murray Watt~~
As I said in my first answer, the intention would be that courts would rely on the ordinary meaning of the term 'consent', and that is generally understood as 'free and/or voluntary decision or agreement'. I remind Senator Cash that this is set out in the explanatory material for the bill. The point about cross-examination is valid, and, as I said in my previous answer, there are frameworks that exist at state and territory level to deal with the evidence of alleged victims of sexual offences.
~~Long debate text truncated.~~