Additional Comments by Senator Paul Scarr

Introduction

1.1The Coalition strongly supports the policy intent of the Bill.The previous Coalition Government introduced important legislation in this regard; namely, the Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Act 2018.The Coalition’s objective is to enhance the law in this area.There is no policy difference with the Government.

1.2The scourge of non-consensual sharing of intimate images (including deepfake material) is well documented in the Majority Report.The ready access to apps which have no apparent legitimate purpose except to produce deepfake porn is abhorrent and truly horrifying. Again, this is well documented in the Majority Report.There needs to be strong civil remedies and criminal penalties to discourage and punish the non-consensual creation and dissemination (and threat to disseminate) of intimate images. Due to constitutional issues, action is needed at both a Commonwealth and State level.There needs to be education.There needs to be increased awareness.

1.3The purpose of these additional comments is to raise a number of issues and propose additional recommendations for the consideration of the Senate.

Legislative Process

1.4It is unfortunate that there was not a longer period to consider the Bill prior to the Committee having to report.Unfortunately, this has become a hallmark of the legislative process under the current Government. This is not intended to be, nor should it be interpreted as, a reflection on Government members of this Committee.They are not responsible for the timing of the legislative programme.

1.5In my view, the Bill would have benefitted from an additional period of scrutiny and review, for the reasons detailed below.

1.6Due to timing issues, the Law Council of Australia made its submission after the public hearing into the Bill.Their submission was received on 30 July 2024.The public hearing was held on 23 July 2024.Hence, the Committee was deprived of the opportunity to consider the submission of the Law Council of Australia prior to the public hearing or to hear witnesses from the Law Council of Australia.In my view, the material issues raised in the submission from the Law Council of Australia warranted additional consideration.

1.7The lack of consultation time was raised by the Law Council of Australia.Concerningly, this has become a usual refrain.[1]The Law Council of Australia submitted:

Because of the limited time available between referral of this inquiry for review by this Committee and the deadline for public submissions, our Constituent Bodies and expert advisory committees have not been able to consider completely all the issues raised by this Bill.As a general point, we reiterate the importance of appropriate consultation timelines to enable informed scrutiny of what are important changes to Australia’s criminal law frameworks.Additionally, as we have explained below, the explanatory materials have been of limited assistance in understanding the rationale for certain unusual drafting choices.[2]

1.8Notwithstanding these reservations, it is noted that the Law Council of Australia supports the passage of the bill, albeit with some drafting recommendations.[3]

1.9The other issue with respect to process arises from the incomplete status of the enquiries of the Scrutiny of Bills Committee of the Senate.The issues raised by the Scrutiny of Bills Committee are summarised in the Majority Report.[4]However, as noted in the Majority Report:

The Scrutiny of Bills Committee sought further information and justification from the Attorney General in relation to the above matters.At the time of writing, the Attorney-General had not responded to the Scrutiny of Bills Committee’s request.[5]

1.10Again, it would have been preferable had the Committee had the benefit of the Attorney-General’s response to the Scrutiny of Bills Committee report. This is especially so given that the Law Council of Australia in their submission referred to a number of matters raised in the Scrutiny of Bills Committee report.[6]

Rationale for Bill

1.11A further matter warrants comment prior to providing additional recommendations.That is the technical reason for the Bill.

1.12In the Explanatory Memorandum it is stated:

In recent years, the creation and distribution of sexual material created or altered using technology is increasingly more common as AI programs become more accessible and ubiquitous.This type of AI-generated material is commonly referred to as ‘deepfakes’.The issue that arises when dealing with such material under the current framework is that because the victim is not involved in the creation of the fictional deepfake version of themselves, an expectation of privacy may not attach to the depiction of the victim.This issue does not arise with the new offences, which do not rely on this definition and instead turn on whether the person depicted in the material consents to its transmission.[7]

1.13This reflects the submission made by the Attorney-General’s Department to the Committee which in turn cross-references concerns raised by the Commonwealth Director of Public Prosecutions in relation to the definition of ‘private sexual material’ under the existing law.[8]

1.14Hence, the rationale for the Bill is based on the concerns of the Commonwealth Director of Public Prosecutions.In its submission, the Commonwealth Director of Public Prosecutions states:

The issue that arises here is that, with certain deepfakes, it cannot be said that any expectation of privacy attaches to the depiction of the victim. For example, if an accused were to transpose an image of a victim’s face onto a publicly available pornographic video, this would generally speaking, not be ‘private sexual material’.This is because the creator of the deepfake uses, as source material, a depiction of a part of the victim (for example, their face) with respect to which it cannot be said there would be an expectation of privacy.[9]

1.15However, this begs the following question: Why cannot it be said that an expectation of privacy arises with respect to the image of one’s face being attached to pornographic video?This is not explained.There is no case authority cited for this conclusion.Presumably, the issue is untested in the courts.

1.16The counter argument is that in many cases (perhaps the vast majority) there would be every expectation (based upon privacy grounds and otherwise) that a person’s consent would be obtained prior to an image of the person’s face being attached to a pornographic image so as to appear to depict the person engaging in a sexual act.

1.17There is commentary on the website of the Office of the Australian Information Commissioner in relation to photographs or images that deals with matters such as obtaining the consent of a person to the use of a photograph or image, particularly where it is intended to disseminate the image.[10]It does not draw distinctions between particular parts of the body.Wouldn’t the expectation of privacy apply at its highest level to a case where the photo of a person’s face is being attached to a pornographic video or image?

1.18In this regard, it is important to note what was said at the time of introduction of the provisions in the Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Act 2018.The supplementary Explanatory Memorandum states:

The definition of private sexual material captures material that appears to depict a person engaged in sexual activity or a sexual pose.The use of the phrase ‘appears to depict’ is intended to capture material that has been altered or doctored to falsely portray a person in a sexual activity or a sexual pose. [my emphasis] For example, an image of a person’s face taken from an innocuous image may be transposed onto an image of another person’s body in a sexual pose.[11]

1.19Hence, the Explanatory Memorandum for the existing legislation puts the scenario provided by the Commonwealth Director of Public Prosecutions within the ambit of the existing law, and expressly so.

1.20With all due respect, the submission from the Commonwealth Director of Public Prosecutions does not meaningfully engage with the use of the phrase: ‘appears to be engaged in’ under the current legislation. The intention under the previous legislation was to cover altered or doctored images where the depiction is fake (i.e. the person is not actually engaged in the act, but only appears to be).Further, the current law necessarily presupposes that in the case of a fake image a reasonable person may regard it as: ‘giving rise to an expectation of privacy’.Otherwise, why include the phrase: ‘appears to be engaged in’?What purpose do those words have if not to deal with the scenario raised by the Commonwealth Director of Public Prosecutions?It is somewhat perplexing.

1.21In commenting on the rationale for the Bill, the Law Council of Australia commented:

While we agree that the existing aggravated offences in the Criminal Code may not apply to deepfake material, for the reasons explained below we consider that this Committee should keep in mind the advantages of the framing of the existing primary offence in section 474. 17, noting that this provision is likely to be engaged for such material.

In our view, there are certain features of the framing of the existing offence in section 474.17 that promote certainty.These features should be considered by the Committee in considering improvements to the new offences contained in the Bill.[12]

1.22This then begs the question as to why the existing offence structure could not be retained with the removal of any doubt through amendment, rather than reframing the offence provisions.

1.23It is recommended that the Senate consider whether the policy objectives of the Bill could be better achieved by retaining features of the framing of the offence in section 474.17 of the Criminal Code Act 1995 that promote certainty, with appropriate amendments made to the current offence to address the concerns raised by the Commonwealth Director of Public Prosecutions.

1.24As referred to earlier in these comments, the consideration of the Bill by the Scrutiny of Bills Committee has not been finalised. In particular, the Scrutiny of Bills Committee has not had the opportunity to consider the response of the Attorney-General to the issues raised by the Scrutiny of Bills Committee.

1.25It is recommended that, prior to passing the Bill, the Senate should have the opportunity to consider the response of the Scrutiny of Bills Committee to any response received from the Attorney General to the issues raised by the Scrutiny of Bills Committee in its report dated 26 June 2024.

Statutory Review

1.26Given the issues raised by the Law Council of Australia and other stakeholders, it is important that there be an independent review of the operation of the legislation.This should occur within a reasonable time of the legislation having been in effect (two or three years).

1.27In my view, that review should not be limited to the matter specified in the Majority Report (the threshold for three civil penalty orders having been issued prior to one of the aggravated offences having been committed).

1.28A number of further matters have been identified by the Law Council of Australia for possible review, including:

(a)the consistency of technology-facilitated intimate image-based sexual abuse offences across the Commonwealth, state and territory jurisdictions; and

(b)ensuring the provisions under the Bill are complementary to, and harmonised with, the measures under the Online Safety Act 2021 (Cth) and Privacy Act 1988 (Cth).[13]

1.29There are other issues relating to the Bill which are canvassed in the Majority Report.These include:

(a)the definition of consent and related issues (refer to paragraphs 2.49 to 2.59 of the Majority Report);

(b)the exception related to genuine medical or scientific purposes with concerns raised by Relationships Australia that the exception does not align with guidance provided by the Australian Medical Association and the Medical Indemnity Industry Association of Australia[14] (in this regard, it is noted that the Attorney General’s Department in response to a question on notice submitted that professional standards and guidelines needed to be considered in context).[15]

1.30It is recommended that the Bill be amended to provide for an independent statutory review of the operation of the Bill and related matters after 2 years of operation.Preparation of the terms of reference for the review should be informed by (amongst other things) the issues raised during this inquiry.

Senator Paul Scarr

Deputy Chair

Footnotes

[1]Refer to my comments in previous Committee reports citing the concerns of the Law Council of Australia in relation to each of the following Bills: Administrative Review Tribunal Bill 2023; Migration Amendment (Removal and Other Measures) Bill 2024; Identification Verification Services Bill 2023.

[2]Law Council of Australia (LCA), Submission 33, p. 5.

[3]LCA, Submission 33, p. 6.

[4]Paragraphs 1.43–1.49 of the Majority Report.

[5]Paragraph 1.49 of the Majority Report.

[6]LCA, Submission 33, pp. 12, 14.

[7]Criminal Code Amendment (Deepfake Sexual Material) Bill 2024, Explanatory Memorandum, p. 4.

[8]Attorney-General’s Department (AGD), Submission 17, p. 4.

[9]Commonwealth Director of Public Prosecutions, Submission 18, p. 2.

[10]Office of the Australian Information Commissioner, Posting photos and videos, 13 June 2019, https://www.oaic.gov.au/privacy/privacy-guidance-for-organisations-and-government-agencies/handling-personal-information/posting-photos-and-videos (accessed 7 August 2024).

[11]Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2018, Supplementary Explanatory Memorandum, p. 2.

[12]LCA, Submission 33, p. 10.

[13]LCA, Submission 33, p. 6.

[14]Relationships Australia, Submission 4, pp. 15–16.

[15]AGD, answer to question on notice, 23 July 2024 (received 5 August 2024).