Purpose of the Bill

The Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 (the Bill) will amend the Criminal Code Act 1995 (the Criminal Code) to create a new offence where a person uses a carriage service to transmit sexual material which depicts (or appears to depict) another person when:

• the person knows the other person does not consent to the transmission or
• the person is reckless as to whether the other person consents to the transmission.

The Bill will also create two aggravated offences which may apply where:

• an offender has already been subject to 3 or more civil penalties orders relevant to the Online Safety Act 2021 or
• the offender was ‘responsible for the creation or alteration of the material’.

Structure of the Bill

The Bill’s amendments to the Criminal Code are contained in Schedule 1.

Items 1-4 contain amendments which are consequential to the repeal of the existing aggravated offences in section 474.17A including where the offence involved transmission etc of ‘private sexual material’. Currently, section 473.1 provides definitions for the telecommunication services offences in Part 10.6 of the Criminal Code. Items 1 and 2 will repeal the definitions of ‘private sexual material’ and ‘subject of private sexual material’ in section 473.1.

Section 473.4 provides the matters to be taken into account in deciding whether, in all the circumstances, reasonable persons would regard material as offensive. Items 3 and 4 will repeal subsections 473.4(2), (3) and (4) which relate to considering the consent of the subject(s) of private sexual material in deciding if material would be regarded as offensive by reasonable persons.

Item 5 contains the main amendments of the Bill. It will repeal the existing aggravated offences in section 474.17A and replace them with a new offence in proposed section 474.17A for using a carriage service to transmit sexual material without consent and two aggravated offences in proposed section 474.17AA where the offence occurred:

• after certain civil penalties have been made against the person (proposed subsection 474.17AA(1)) and
• when the person created or altered the sexual material which was transmitted (proposed subsection 474.17AA(5)).

It will also insert proposed subsection 474.17AB which will address double jeopardy matters arising from the new underlying offence and the aggravated offences.

Item 6 will repeal and replace section 474.17B which deals with the possibility of alternative verdicts to reflect the new underlying offence and the aggravated offences.

Item7 provides for the application of the amendments. The amendments will apply to material transmitted after commencement ‘regardless of whether the material was created or altered before or after’ commencement.  

Background

Non-consensual sharing of intimate images and deepfakes

The accessibility of digital manipulation technologies, in particular new generative AI image tools and programs, have increased public concern regarding ‘deepfakes’. For example, the spread of AI-generated, sexually explicit images of Taylor Swift highlighted the issue of the creation and distribution of sexualised deepfakes.^[1] In Australia, this issue has recently been highlighted when a teenager was arrested for allegedly generating and sharing a number of explicit deepfakes of other schoolchildren in Victoria.^[2]

The eSafety Commissioner’s position statement on deepfakes notes:

Manipulation of images is not new, but over recent decades digital recording and editing techniques have made it far easier to produce fake visual and audio content, not just of humans but also of animals, machines and even inanimate objects.

Advances in artificial intelligence (AI) and machine learning have taken the technology even further, allowing it to rapidly generate content that is extremely realistic, almost impossible to detect with the naked eye and difficult to debunk. This is why the resulting photos, videos and sound files are called ‘deepfakes’.^[3]

The capability to generate ‘deepfakes’ through programs and online services is becoming increasingly accessible. In December 2023 a report by Graphika, a US-based social media analytics firm, found that ‘[t]he creation and dissemination of synthetic non-consensual intimate imagery (NCII) has moved from a custom service available on niche internet forums to an automated and scaled online business that leverages a myriad of resources to monetize and market its services’.^[4]

On 1 May 2024, the Albanese government announced a number of measures concerned with ‘Tackling online harms’:

The Albanese Government will introduce legislation to ban the creation and non-consensual distribution of deepfake pornography. Digitally created and altered sexually explicit material is a damaging form of abuse against women and girls that can inflict deep harm on victims. The reforms will make clear that creating and sharing sexually explicit material without consent, using technology like artificial intelligence will be subject to serious criminal penalties.[5]

Legislative context

Constitutional context

The Commonwealth lacks a direct constitutional head of power to legislate regarding technology generally (including computing), which appears to restrict its capacity to create offences regarding individuals who create, produce or generate deepfakes.[6] However, the Australian Constitution does grant legislative power over telecommunications to the Commonwealth via section 51(v), allowing laws to be made in relation to ‘postal, telegraphic, telephonic, and other like services’. Generally, a link to the Commonwealth’s constitutional authority to legislate under this head of power in the Criminal Code is made through the inclusion of the ‘use of a carriage service’ as one of the elements of offence.

Commonwealth criminal law

The Criminal Code already includes some telecommunications offences which may apply in circumstances where a person transmits sexual material of another person without consent online. For example, under section 474.17, a person commits an offence if they use a carriage service in such a way that a ‘reasonable person’ would find it harassing, offensive or menacing, in all the circumstances. Section 474.17A (to be repealed by the Bill) currently outlines aggravated offences for this underlying offence including where it involves the transmission, making available, publication, distribution, advertisement or promotion of ‘private sexual material’.

Online safety regulation

The Online Safety Act 2021 (Cth) commenced on 23 January 2022. The legislation bolstered the powers of the eSafety Commissioner to address harmful online content including an updated image-based abuse scheme to address the sharing and threatened sharing of intimate images without the consent of the person shown. For example, under section 75, it is unlawful for a person to post, or make a threat to post, an ‘intimate image’ of another person without their consent if either person is ordinarily resident in Australia. This is subject to a civil penalty of 500 penalty units ($156,500).[7]

An ‘intimate image’ is defined into three categories including ‘depiction of private parts’, ‘depiction of private activity’ and ‘depiction of person without attire of religious or cultural significance’ (section 15). The definition covers material which ‘appears to depict’ in these categories and it is also ‘immaterial whether material has been altered’. Accordingly, it is likely the definition extends to sexualised deepfake images. 

There are a number of exemptions listed in subsection 86(1) for the provision of ‘intimate images’ including an assessment of whether ‘an ordinary reasonable person would consider the provision of the intimate image on the service acceptable’ having regard to a number of matters.

States and territories

Most Australian jurisdictions have criminal offences which cover the non‑consensual sharing or distribution of intimate or explicit images (some of which may apply to altered material).[8] Victoria appears to be the only jurisdiction which has expressly criminalised both the production and distribution of deepfakes.[9]

Under section 53R of the Crimes Act 1958 (Vic), a person will commit an offence if they intentionally produce an intimate image depicting another person, and they know it is, or probably is, an intimate image, and the production of the intimate image is ‘contrary to community standards of acceptable conduct’. The Explanatory Memorandum to the legislation states that the new offence ‘applies to the production of deepfake or altered intimate images’ due to the definition of ‘produce’ and the meaning given to the word ‘image’.[10]

Committee consideration

Senate Standing Committee for the Scrutiny of Bills

At the time of writing the Senate Standing Committee for the Scrutiny of Bills had not considered the Bill.

Policy position of non-government parties/independents

Coalition

In an interview in May 2024, the Shadow Minister for Communications, the Hon David Coleman MP described proposals to ban deepfakes as ‘sensible’:

When you have a situation when real people are being, effectively having their identity appropriated, and sexualised images or pornographic images are being created, that's obviously completely unacceptable. That should be an offence. And it's appropriate that the Government is doing that.[11]

Australian Greens

The Australian Greens spokesperson for Justice and Digital Rights Senator David Shoebridge has been reported as highlighting risk that the provisions of the Bill could be applied to children:

[He] said it was ‘not credible for the government to say that new criminal offences about online content creation and sharing will not see children end up in prison’... He said the government needed to ‘take on the power of platforms and algorithms’ and that while expanding the law to cover AI-generated images made sense, police would struggle to enforce it.[12]

Australian Greens Senator Larissa Waters has also been reported as arguing the restrictions on deepfakes should go further:

There needs to be accountability for the tech giants who refuse to remove problematic apps and content so that young people aren’t exposed to them, and image-based abuse is restricted before it can happen in the first place... The tech used to create this abusive content should not be given licence to be downloaded and sold in app stores, and any apps that manage to sneak through should be de-platformed.^[13]

Position of major interest groups

National Children’s Commissioner

The National Childrens’ Commissioner, Anne Hollonds, has reportedly raised concerns the criminalisation of deepfakes could result in children as young as 10 years old going to prison:

Ms Hollonds acknowledged the government's deepfake bill was intended to address real harm in the community and that having sexual images shared was ‘horrifying’ for victims. But she said the problem of minors sharing such images was ‘a classic example’ of young people having access to technology without proper safeguards. ‘It's actually on us, as the adults,’ she said. ‘We've allowed the regulation of the digital world, the online world to be so weak, that it allows kids to do things, or get involved in these negative actions, that have terrible consequences on others’.[14]

She indicated her office had not been consulted on the Bill and the potential for the Bill to be applied to children highlighted an urgency for the federal government to raise the age of criminal responsibility to ‘at least 14’.[15]

Commonwealth Director of Public Prosecutions

In a recent submission to a Senate committee inquiry on cybercrime last year, the Commonwealth Director of Public Prosecutions (CDPP) highlighted issues with the existing aggravated offence in section 474.17A which involves the transmission, making available, publication, distribution, advertisement or promotion of ‘private sexual material’.

The CDPP commented that it is likely that this existing aggravated offence would not cover the distribution of deepfakes due to the definition of ‘private sexual material’ which involved a depiction of the victim ‘giving rise to a reasonable expectation of privacy’. It stated ‘... as the victim was not involved in the creation of the fictional “deepfake” version of themselves, it cannot be said that any expectation of privacy attaches to the depiction of the victim’. The CDPP included this aggravated offence as a part of its commentary ‘on legislative gaps and opportunities for reform’.[16]

Financial implications

The Explanatory Memorandum states the amendments made by the Bill will have no financial impact.[17]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[18]

Parliamentary Joint Committee on Human Rights

At the time of writing the Parliamentary Joint Committee on Human Rights had not considered the Bill.

Key issues and provisions

Scope of the underlying offence

The new offence in proposed subsection 474.17A(1) will apply where a person uses a carriage service to transmit material of another person who ‘is, or appears to be 18 years or older’ and the material ‘depicts, or appears to depict’:

• the other person engaging in a sexual pose or sexual activity (whether or not in the presence of other persons); or
• a sexual organ or the anal region of the other person; or
• if the other person is female—the other person’s breasts.

For the purposes of the new offence, the term transmit is to be broadly interpreted as including ‘make includes make available, publish, distribute, advertise and promote’ (proposed subsection 474.17A(4)). The term ‘sexual pose’ is not defined but the Dictionary to the Criminal Code does contain a definition of ‘sexual activity’:

sexual activity means:

(a) sexual intercourse; or

(b) any other activity of a sexual or indecent nature (including an indecent assault) that involves the human body, or bodily actions or functions (whether or not that activity involves physical contact between people).

Proposed paragraph 474.17A(1)(d) contains the fault elements of the new offence. These are that the person:

• knows that the other person does not consent to the transmission of the material; or
• is reckless as to whether the other person consents to the transmission of the material.

The Bill clarifies that being reckless in relation to consent includes ‘not giving any thought to whether or not the person is consenting’ (proposed subsection 474.17A(5)).

The other person’s lack of consent to the transmission of the material is not an element of the offence. However, it may be relevant if the exceptions to the offence are raised by the defendant (discussed below).

In relation to the issue of consent, the Explanatory Memorandum states:

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. 

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... The offence is not intended to capture private communications between consenting adults or interfere with private sexual relationships involving adults.[19]

The Explanatory Memorandum also clarifies that ‘[t]he 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’.[20]

Proposed subsection 474.17A(2) provides that, for the purposes of the offence, it is irrelevant whether the material is transmitted ‘in unaltered form’ or ‘has been created, or altered in any way, using technology’. The Explanatory Memorandum states this provision has been ‘framed broadly to refer to the use of technology, to ensure [it] is technology neutral and can apply to existing and future technologies’.[21] The appended note to the subsection states that material which ‘has been created, or altered in any way, 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. Examples of such material are ‘deepfakes’.

Unlike the aggravated offence which it replaces, the new offence in proposed subsection 474.17A(1) does not have the requirement that the person’s use of a carriage service first be found to be done in a way that ‘reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive’. Potentially, this significantly broadens the scope of the offence.

The new offence will be punishable by a maximum penalty of 6 years imprisonment.      

The legislative framework in Part 6 of the Online Safety Act addresses situations where a person posts or threatens to post, an ‘intimate image’ of another person without consent. The new offence created by the Bill will not address this aspect of ‘threatening to transmit’ behaviour. However, these categories of behaviour may still fall within the scope of other offences in the Criminal Code (such as the menacing, harassing or offensive use of a carriage service offence).

Exceptions

Proposed subsection 474.17A(3) contains three narrow exceptions and one broad exception to the new offence. The narrow exceptions provide the offence does not apply where transmitting the material is:

• necessary for, or of assistance in enforcing or monitoring compliance with, or investigating a contravention of a Commonwealth, State or Territory law; or
• for the purposes of proceedings in a court or tribunal; or
• for a genuine medical or scientific purpose.

The broad exception, contained in proposed paragraph 474.17A(3)(d), provides the offence does not apply if a reasonable person would consider transmitting the material to be acceptable, ‘having regard to’ a range of factors. These factors are:

• the nature and content of the material
• the circumstances in which the material was transmitted
• the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted, or appearing to be depicted
• the degree to which the transmission of the material affects the privacy of the person depicted, or appearing to be depicted
• the relationship between the person transmitting the material and the person depicted, or appearing to be depicted, in the material and
• ‘any other relevant matters’.

The Explanatory Memorandum states:

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.[22]

It is important to note in considering the scope of the new offence that defendants will bear the evidential burden in relation to matters in the exceptions.[23]

Application of the new offence to children

As outlined above, concerns have been raised regarding the possible application of the new offence to children. In August 2023, the eSafety Commissioner noted her office had ‘received our first reports of sexually explicit content generated by students using this technology to bully other students’.[24]

The Attorney-General, the Hon Mark Dreyfus MP has acknowledged that potentially children ‘could be charged’ but has noted that ‘...they would be dealt with as children are dealt with in the criminal law’. He commented:

... that's going to be a matter for courts but by and large children are not gaoled in Australia. The police will obviously excise discretion in what they investigate and how they apply these newly created offences. But we've got here behaviour that affects women and girls who are the target of this kind of deeply offensive and harmful behaviour. We know that it can inflict deep and long-lasting harm on victims. The Albanese Government has no tolerance for this kind of criminal behaviour and that's why we are legislating in this clear way.[25]

Section 4M of the Crimes Act 1914 provides that a child under 10 years old cannot be liable for an offence against a law of the Commonwealth. Subsection 4N(1) provides that a child aged 10 years or more but under 14 years old can only be liable ‘if the child knows that his or her conduct is wrong’, and section 4N(2) specifies that ‘whether a child knows that his or her conduct is wrong is one of fact’ with the burden of proving this on the prosecution.

There has been discussion at the Standing Council of Attorneys-General concerning raising the minimum age of criminal responsibility in Australia.[26] Some jurisdictions have moved to increase the age of criminal responsibility.[27]

The aggravated offences

Proposed section 474.17AA contains the two aggravated offences which will apply where particular circumstances in exist in addition to the underlying offence. The maximum penalty for both aggravated offences would be 7 years imprisonment.

After certain civil penalty orders

The aggravated offence in proposed subsection 474.17AA(1) is ‘transmission of sexual material without consent after certain civil penalty orders were made’. This will apply if, prior to the underlying offence, the person was the subject of 3 or more civil penalty orders under the Regulatory Powers (Standard Provisions) Act 2014 in relation to:

• contraventions of subsection 75(1) of the Online Safety Act (which creates a civil penalty for  posting or threating to post online an intimate image without consent) or
• contraventions of section 91 of the Online Safety Act, that relate to removal notices given under section 89.

Section 91 of the Online Safety Act relates to the non-compliance with removal notices issued by the eSafety Commissioner (under sections 88, 89 or 90) concerning cyber‑abuse material. In particular, section 89 provides for the eSafety Commissioner to give end-users removal notices concerning cyber-abuse material which has been the subject of a complaint.

The civil penalty orders can be against either or both categories of contravention of the Online Safety Act and absolute liability will apply to this element of the proposed new aggravated offence.

The inclusion of the cyber-abuse material removal notices framework in the aggravated offence is incongruous as the Online Safety Act contains a separate specific framework for addressing non‑consensual sharing of intimate images including removal notices (in Part 6). In particular, section 78 allows the eSafety Commissioner to give removal notices to end-users concerning intimate images posted online without consent. If this removal notice is not complied with, a civil penalty may apply under section 80 of the Online Safety Act.  

The Explanatory Memorandum justifies the increased penalty for the aggravated offence as follows:

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.[28]

Given that the explanatory materials do not refer to the cyber-abuse material framework in the Online Safety Act, this may be a drafting error. If this is the case, proposed subparagraph 474.17AA(1)(b)(ii) may require amendment to appropriately connect the aggravated offence to the non‑consensual sharing of intimate images civil penalties in the Online Safety Act:

(ii) contraventions of section 80 of the Online Safety Act 2021 that relate to removal notices given under section 78 of that Act.

Responsible for creation or alteration

The aggravated offence in proposed subsection 474.17AA(5) will apply if the person commits the underlying offence and is ‘responsible for the creation or alteration of the material’. The Explanatory Memorandum indicates the fault element for this part of the aggravated offence will be ‘intention’ and under the Criminal Code ‘a person has intention with respect to conduct if he or she means to engage in that conduct’. It states that increased penalty of the aggravated offence ‘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’.[29]

Double jeopardy

Proposed section 474.17AB addresses the double jeopardy issues which arise where aggravated offences build on an underlying offence. The inserted table clarifies that an offender cannot be convicted or acquitted of both one of the aggravated offences and the underlying offence or the other aggravated offence. Similarly, proposed subsection 474.17AB(3) provides that a person who has been convicted or acquitted of the underlying offence cannot be additionally convicted for either of the two aggravated offences.

The reliance on the existence of the certain civil penalty orders for the first the aggravated offence (in proposed subsection 474.17AA(1)) raises the prospect that these orders may be set aside or reversed on appeal. Where this occurs, proposed subsection 474.17AB(4) provides that a conviction for the aggravated offence must be set aside. However, this setting aside does not prevent proceedings from being instituted for the underlying offence or the other aggravated offence. As noted above, currently the some of the civil penalty orders relate to the ‘cyber-abuse material’ part of the Online Safety Act.

Alternative verdicts

Item 6 repeals and replaces the existing provision for alternative verdicts in section 474.16B to reflect the new underlying offence and aggravated offences. Effectively this allows for the ‘trier of fact’ (either the judge or a jury), where they are not satisfied a person is guilty of one of the aggravated offences to nonetheless find the person guilty of the underlying offence or the other aggravated offence. Proposed subsection 474.17B(2) provides these alternative verdicts only apply if the person has been accorded procedural fairness in relation to the finding.

Application

Item 7 provides that the Bill’s amendments will apply to material transmitted after the commencement of the Bill regardless of whether the material was created or altered before or after commencement. This raises retrospective application issues, particular in relation to the proposed aggravated offence for persons who may be responsible for the creation or alteration of material prior to the commencement of the Bill (proposed subsection 474.17AA(5)).

The Explanatory Memorandum characterises this approach as ‘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’. It states:

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.[30]

However, the Attorney-General’s Department’s guide to framing Commonwealth offences contains robust advice concerning the new offences which may have retrospective effect. In particular, it states that offences ‘should impose retrospective criminal liability only in exceptional circumstances’:

An offence should be given retrospective effect only in rare circumstances and with strong justification.  If legislation is amended with retrospective effect, this should generally be accompanied by a caveat that no retrospective criminal liability is thereby created ...

The Federal Parliament and successive governments have only endorsed retrospective criminal offences in very limited circumstances. People are entitled to regulate their affairs on the assumption that something which is not currently a crime will not be made a crime retrospectively through backdating criminal offences.[31]