Chapter 2Key Issues
2.1Most submitters commended the purpose of the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 (the Bill) to strengthen and modernise offences relating to the non-consensual transmission of sexual material. Many also noted that the current legal framework has gaps and is inadequate to deal with the increased sophistication of technology and artificial intelligence (AI).
2.2This chapter sets out the key issues raised by submitters and witnesses to the inquiry, such as:
harms caused by the non-consensual transmission of sexual material;
ease of access to technology;
the scope and purpose of the Bill;
inadequacy of the current legal framework;
application of both the new underlying and aggravated offences;
proportionality of the penalties in the Bill;
the Bill’s application to children;
overlap with current state and territory offences;
gaps in the Bill;
the role of social media and technology companies; and
non-legislative responses, including prevention and education.
Harms of non-consensual sharing of sexual material
2.3The harms to victims of non-consensual sharing of sexually explicit material are varied and deeply damaging. It is conduct that is part of the wider phenomenon of technology-facilitated abuse. Technology-facilitated abuse can include ‘revenge porn’ (where images are created consensually but later shared non-consensually to cause people, mainly women, pain) and victims of sexual assault may have this recorded by the perpetrators and shared online.It can also include deepfake sexual material which can be used to harass, blackmail, and attack victims or used to extort sex acts.
2.4A study conducted by Sensity AI has found that 90–95 per cent of deepfakes are nonconsensual porn. Another study conducted in 2023 found that 99 per cent of victims of deepfake pornography were women. According to the same study, ‘deepfakes are growing exponentially, doubling every six months’. The eSafety Commissioner explained, ‘explicit deepfakes have increased on the internet as much as 550 per cent year on year since 2019’ (emphasis added).
2.5Professor Rebecca Delfino observed that the COVID-19 pandemic resulted in an increase in technology-enabled abuse:
…this trend is even more worrying in the context of the pandemic. A deepfake helpline in the UK’s caseload has nearly doubled since the pandemic started. Existing abusive relationships have worsened, and digital abuse has seen an uptick as people have grown increasingly isolated and spend more time online.
2.6The Australian Human Rights Commission (AHRC) submitted that persons with disability, First Nations people, the LGBTIQA+ community and those aged between 16–29 are ‘heavily targeted by deepfake sexual material’.
2.7From an offending perspective, the Victorian Law Reform Commission found that sentencing trends from 2015-16 to 2018-19 showed ‘almost all offenders sentenced were male (91 per cent) and more than half the cases sentenced involved family violence (54 per cent)’.
2.8The Australian Federal Police (AFP) emphasised that the creation of sexually explicit deepfake material ‘is a form of abuse and the non-consensual sharing of the material can cause long-lasting harm to victims, regardless of the way in which the image was created’.
2.9While deepfake images are fake, the impacts are very real. The events depicted in the material do not need to have happened, nor do the images or videos need to be real, to cause damage to someone’s life. Professor Delfino advised the committee that victims of non-consensual transmission of deepfake sexual material have experienced panic attacks and been afraid to leave their homes. She explained that some victims ‘have equated their deepfake pornography victimisation to their prior real-life experiences with sexual assaults and violence’.
2.10Ms Noelle Martin is a victim-survivor of non-consensual sharing of deepfake sexual images. Ms Martin explained that non-consensual sharing of sexual material is ‘life-destroying and shattering’, compromising and threatening ‘people’s capacity to self-determine, to flourish and to exercise their sexual agency’.
2.11The eSafety Commissioner advised:
Victim-survivors have also described how their experiences of image-based abuse victimisation radically disrupted their lives, altering their sense of self, identity and their relationships with their bodies and with others.
2.12Furthermore, the impacts on a victim’s life can be far reaching, from reputational damage to negative impacts on careers, friendships and social networks. Victims may also withdraw from the internet completely, called the ‘silencing effect’, where ‘women feel discouraged from participating online and in other public spaces’.
2.13Due to the nature of the online environment, victims also live in fear of being retraumatised as the deepfake images could reappear at any time. As deepfake images can be difficult to remove once shared online, ‘there is an indelible element to the offending, that may cause further and ongoing damage and distress to victim survivors’. Once material has been disseminated, it is very difficult to completely remove and, even if the material is removed, the victim has already been harmed.
2.14At a societal level, the creation and sharing of deepfake sexual material is normalising violent sexual assault.
2.15The AHRC reflected on the impact of non-consensual sharing of deepfake sexual material on the cornerstone human right to privacy, as well as the right to security of a person – articles 17 and 9 of the International Covenant on Civil and Political Rights, respectively. Because deepfake sexual material can negatively impact a person’s reputation, personal and family relationships, and employment opportunities, it can also affect the enjoyment of additional human rights such as the right to work.
Causes of and motivations for technology-facilitated abuse
2.16Cultural values and norms play a pivotal role in the causes of technology-facilitated abuse, but motivations of perpetrators can vary considerably.
2.17Mr Richie Hardcore, advocate and educator, submitted:
…when we discuss what causes gendered violence it is the social attitudes about violence, sexism, and expectations of gendered norms of behaviour [that] play a role in creating an individual’s scheme of core beliefs. Core beliefs are shaped in childhood by many things, and our digital media environment has quickly become a key source of ideas and values which people digest and internalise.
2.18Mr Daniel Principe, youth advocate and educator, and Mr Hardcore both further reflected on the role of societal norms. MrPrincipe told the committee:
Obviously norms influence what we do or don't do. An example that I think is very relevant and current is sexual strangulation right now. It wasn't normative 10 years ago. It has become increasingly normative. There are huge risks for women especially, who are often receiving this. And why has that happened? Well, culture. And when I talk about porn culture I don't mean just watching pornography but that the ideas, the jokes, the memes, the things expressed on Netflix shows that reinforce this idea that we should strangle and seek to strangle and that is something that is sought after—and we can debate that. But in this instance it's the same. It's: 'I've seen someone else do it. That was funny.' And it usually starts, schools tell me, as not necessarily sexual but definitely depicting somebody, through A, in an inappropriate or degrading way that's not necessarily sexualised, and that may get a laugh. So there is this peer affirmation, whether or not we want to call this toxic affirmation, especially for boys to get cred. There is that.
I think there is a sense, and a growing sense—and in my workshops I ask boys explicitly, 'Do you feel that there is a push to get back at women and put them in their place?' And they tell me, yes, they do—because I'm not asking them to fess up to that. I'm saying, 'Culturally, do you see that as a trend?' And they say yes. And we talk about that from kitchen jokes and 'Make me a sandwich' jokes all the way to pornography and image-based abuse. They acknowledge that. So there is this rise. This is where there are signs for hope. I think young men are increasingly able to critique their culture. It's how we help them to abstain from it or resist it and not pay a high price for being an upstander and having empathy. These platforms and the research that I've seen and engaged with—both the mediums themselves and the message that we encounter do reinforce a callousness. Within free existing hegemonic ideas of masculinity, it reinforces this callousness: 'I'm unaffected by what's happening to this other.' And this is just another tool and device, as I mentioned in my opening statement, to embolden and weaponise what's already there. So I think it's all of that. And of course—you know me—I'm going to talk about how pornography does reinforce and drive these appetites as a significant conditioning tool for boys especially, who experience this well before their first kiss and sexual experience, and creates very toxic sexual scripts in a lot of instances.
2.19Mr Hardcore explained:
We're exposed to these normative ideas from a really young age…We have a really gender-normative script that children impose on one another because of what they're consuming from the adults around them. That plays out in culture. Depending on the socio-economics of any given family or community, you have all these different influences, whether it's the high-powered Wolf of Wall Street stereotype or the working-class tradie who's wolf-whistling at a woman when she walks by. So our boys take cues from that. We have to know that many boys don't have good male role models, and when they don't have good male role models they're raised by media environments and by their peers, and social media and digital technology is a big part of that now.
Broadly I think our young men are getting caught up in this political culture war that has really taken off in a lot of the Western world over the last 10 to 20 years. For better or worse, many of them do feel excluded as society radically changes, and they do feel embittered. It's not to excuse their behaviour but to understand it in order to address it. We need to think why someone like Andrew Tate was one of the most popular social media figures of 2022 and 2023, despite criminal charges for rape and human trafficking. And, while he might have fallen out of favour, we have this new rise of neo-masculinist ideas being presented by Twitch streamers and YouTubers. Young men gravitate towards that, and that leads to things like using deepfake technology to humiliate and hurt your female peers. So how we call our boys in is, I think, really important. I think in the #MeToo era we did a good job of calling out bad behaviour and pointing out what harassment and assault and violence is. How do we take that a step further to a preventive lens, a preventive angle, and give them a critical media literacy? As Daniel said, it's not just a porn or deepfake. You listen to top 50 charting songs on YouTube and they're singing about choking people, men and women. And that's presented as…really normative and cool. If you question that, you're not cool anymore. You pay a social price for critiquing popular culture, and you get pigeonholed as conservative or Christian or whatever it may be, rather than: 'I'm just not down with potentially strangling someone for my [sexual] gratification. Does that make me uncool? So be it.' So how do we help?...How do we make empathy, kindness and connection…cool again, man? Make kindness cool again.
2.20Professor Asher Flynn observed that the motivations of perpetrators vary considerably: some wish to humiliate and harm victims while others do it for exploitative purposes. Other perpetrators are ‘just having a bit of a laugh’ and think it is a joke. Professor Flynn explained:
…people acknowledge that they are doing it in the context of a relationship breakup or in order to harm, humiliate or control the victim from not leaving a relationship or to ask them to engage in some type of sexual activity or to give them something in exchange for either not sharing that image with other people or not creating that image in the first place.
Ease of access
2.21A significant contributor to the proliferation of technology-facilitated abuse is the ease at which technology can be accessed and used for nefarious purposes.
2.22AI technology is a powerful tool and, when used appropriately, can advance economies and create jobs. However, it also presents risks:
…the possibilities for its use in technology-facilitated abuse are growing exponentially as such technologies become more publicly accessible and the tools to create deepfakes become relatively cheap, user-friendly and mainstream.
2.23While the ability to alter images is not new, AI has increased the ease at which it can be done by reducing ‘the expertise, cost and time required to generate sexually-explicit deepfakes’. This has the effect of ‘lowering the barrier to entry when used to facilitate crime’.
2.24As the AFP explained, deepfakes are ‘increasingly realistic, preventing detection by visual inspection and making it difficult for individuals to understand that images are fake and do not reflect reality’.
2.25The eSafety Commissioner highlighted that ‘[t]housands of open-source AI apps have proliferated online are often free and easy to use by anyone with a smartphone’. The eSafety Commissioner also raised concerns that ‘these apps are using sophisticated monetisation tactics and are increasingly being found on mainstream social media platforms’.
2.26Further, Ms Inman Grant explained ‘these apps make it simple and cost-fee for the perpetrator, while the cost to the target is one of lingering and incalculable devastation’.
2.27Independent Schools Australia (ISA) expressed concern about the ease of access to this type of technology in a school context. There have been several recent instances where deepfake sexual material has been created and/or shared by students of both other students and school staff.
2.28The ease of access to technology for the creation, and transmission, of deepfake sexual material may risk ‘normalising non-consensual sexual activity’. Professor Clare McGlynn and Ms Rüya Tuna Toparlak argued that this has repercussions for society as a whole, but particularly for women and girls.
Scope and purpose of the Bill
2.29Mr Parker Reeve, Assistant Secretary, Attorney-General’s Department (AGD), outlined the scope and purpose of the Bill as:
…the criminalisation of the non-essential sharing of sexually explicit material applies both to real material, such as unaltered images and recordings, and to fake material or altered material that has been created or altered using technology, such as deepfakes.
2.30Submitters were of the view that the Bill would act as a deterrent against the non-consensual transmission of sexual material. As Professor McGlynn and MsToparlak stated:
A new criminal law can send a clear message to victims, perpetrators and society as a whole that conduct is wrong, harmful and should not be tolerated.
Adopting new criminal laws can help shift attitudes and behaviours, reducing harm and prevalence.
2.31Mr Hardcore shared the view that the Bill signals what is considered inappropriate conduct. Mr Hardcore said:
The proposed criminal amendment provisions are part of the required cultural change we need. Criminal prosecution alone does not prevent offending. However, it is an important tool to leverage which demonstrates society’s values, serves as a disincentive to some potential offenders and gives victim-survivors the ability to pursue justice.
2.32Mr Michael Bradley commented on the potential impact of the Bill on corporate entities, such as technology companies, that play a role in this space. Mr Bradley remarked:
The signalling that this type of legislation includes is, we think, very important from both the community perspective but also from the perspective of the corporate entities that have the ability to control much of what happens online and to date haven’t really exercised that social responsibility well.
2.33In contrast, the New South Wales Council of Civil Liberties (NSWCCL) and Scarlet Alliance, described what they considered the reactionary approach of the Bill. They submitted:
The Bill’s focus on criminal penalties is a reactive policy which aims to punish offenders, rather than creating a proactive framework geared towards preventing the non-consensual creation and distribution of sexual material, and developing measures aimed at the objective of assisting those who have suffered harm as a result.
…
Not only is there already existing federal legislation, but there are also existing state and territory laws that have been tackling non-consensual distribution of intimate images with existing laws on the subject matter.
2.34Ms Julie Inman Grant, eSafety Commissioner, was supportive of the Bill. MsInman Grant stated ‘[c]riminalisation of these actions is entirely appropriate, serving as an important deterrent function while expressing our collective moral repugnance to this conduct’.
2.35The Law Council of Australia (the Law Council) considered it was important that these reforms are considered together with related work underway, including the Privacy Act Review and the Online Safety Act Review.
Interaction with the eSafety Commissioner’s role
2.36The eSafety Commissioner stated that the Bill would ‘work in conjunction with eSafety’s image-based abuse scheme under the Online Safety Act’, and ‘provide victim-survivors with more choice’.
2.37As Ms Inman Grant highlighted, the scheme that sits under the eSafety Commissioner is not a punitive regime, but rather about harm remediation. The eSafety Commissioner explained that the two systems would work in concert because there would be a criminal penalty regime for more egregious instances of technology-facilitated abuse.
2.38Professor Jonathon Clough also emphasised the importance of non-criminal measures in this space and stated that the aggravated offence reinforces the civil penalty regime under the Online Safety Act 2021 (OSA).
Inadequacy of the current legal framework
2.39The Australian Federal Police Association (AFPA) submitted that ‘most people believe that the current legal framework is insufficient, both in its capacity to punish offenders and in its ability to act as a deterrent’; a view the AFPA shared. Numerous stakeholders raised shortcomings of the civil regime and legal issues concerning the existing criminal offences.
Issues with the civil regime
2.40While there are both criminal and civil provisions operating in this space, the AFPA considered that civil proceedings have limitations, notably, they are expensive and the offender could be ‘a low-income, asset-light individual who is, therefore, effectively impervious to civil proceedings’.
2.41Similarly, the AHRC explained that while the civil regime under the OSA is important in this space, the effectiveness of civil penalties may be reduced due to the cost of litigation and the potential inability of perpetrators to pay the penalties. It also submitted that while the removal powers of the eSafety Commissioner are crucial, they are still reactionary powers and do not have the same deterrent effect that other proactive approaches may.
Deficiencies in existing criminal offences
2.42The Commonwealth Director of Public Prosecutions (CDPP) raised deficiencies in the existing offence in section 474.17A of the Criminal Code Act 1995 (the Criminal Code). It submitted that depending on the circumstances, the non-consensual transmission of deepfake sexual material using a carriage service may not constitute an offence under the existing offences because of the way private sexual material is defined.The issue with deepfake material is, as the CDPP explained, ‘it cannot be said that any expectation of privacy attaches to the depiction of a victim’.
2.43The CDPP provided an example to illustrate this point:
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.
2.44The CDPP did consider that ‘where the source material used by an accused was itself “private sexual material”‘ then it would likely satisfy the definition of ‘private sexual material’ and thus would be covered by the current offences.
2.45The CDPP also illustrated this by way of an example:
For example, if the source material used by a defendant is a sexual image of a victim taken without the victim’s knowledge or shared by the victim on a private basis, and the defendant then transposed into that image depictions of other sexual activities, this would constitute “private sexual material”. This is because even though the activity ultimately depicted did not in fact take place, the underlying material was “private sexual material”, and so the use of that underlying material will fall within the ambit of the offence in s474.17A(1).
New underlying offence
2.46The Bill proposes to introduce a new offence of using a carriage service to transmit sexual material without consent, proposed section 474.17A of the Criminal Code. This offence would act as an underlying offence for the aggravated offences also outlined in the Bill.
2.47The NSWCCL and Scarlet Alliance argued that the proposed underlying offence provides insufficient protection to victims. They noted that the requirement that the material ‘depicts, or appears to depict’ a person ‘does not cover material that alludes to the fact that the individual is participating in sexually explicit behaviours’.
2.48The Law Council submitted that proposed section 474.17A could potentially apply to a wide range of innocuous conduct due to its broad drafting. It explained that offence provisions should not be overly broad and to the point that they are dependent on the discretion of the police and prosecutors to determine what conduct constitutes an offence.
Consent and the removal of an expectation of privacy
2.49The existing offences in the Criminal Code require that the material that is shared is ‘private sexual material’. For material to be ‘private sexual material’ under the Criminal Code, it must be shared in circumstances ‘that [a] reasonable person would regard as giving rise to an expectation of privacy’. The Bill would repeal the definition of ‘private sexual material’ as well as the current offences relying on this definition.
2.50As indicated above, the existing offences may not cover the full range of conduct in relation to the non-consensual transmission of sexual material, particularly in the case of deepfakes. The Bill is intended to address this because the new offences would not rely on the definition of ‘private sexual material’ and ‘instead turn on whether the person depicted in the material consents to its transmission’.
2.51The proposed underlying offence requires that the perpetrator has knowledge that the other person did not consent to the transmission of the sexual material or was reckless as to whether the other person consented. Consent is not defined in the legislation itself.
2.52Professors Clough and Flynn both raised some concerns about the failure to define consent in the legislation. Professor Clough argued that:
…my reading of the provision [is] that it does not require proof of absence of consent; it requires the accused to either know or be reckless as to the absence of consent. Unless I'm missing a provision, which I may well be doing, I couldn't see it as an element of the offence to be proved that the transmission of the material is without consent. It moves straight from what the material is in the transmission to the first person knowing or being reckless in particular. As I say, I may have misunderstood that. It seemed to me potentially important that be elevated as an element given, again, the seriousness of the crime that is really at the heart of this, and this is without consent. The Victorian provision places consent as a defence rather than as an element. That would be another way of looking at it—making expressly the position that the person is acting—placing it as a defence.
…I think the advantage of enumerating it in the way that the Victorian provisions do, and that makes it consistent with other Victorian provisions, is making clear that positive aspect of consent. But this must be positively communicated. You can't simply assume. That's a real danger in this space: 'I just assumed everyone was sharing it, therefore I could share it'. I think there is something very positive in making it clear that it must be positively communicated.
2.53Professor Flynn concurred that ‘clarity is always useful and to be able to have a clear definition of what consent is and what it isn’t’:
I think that the idea that this bill accepts that consent is—it means that it's just freely and voluntary agreed and, if you don't give any thought to that, you're still committing an offence is a useful element of this legislation. So you should be thinking that you have to be getting consent before you're engaging in this activity. Having said that, I do think that there is importance in clarity to make sure that people can't therefore come up with reasons as to why the law didn't cover that aspect of consent.
2.54Mr Principe argued that what consent is needs to be clear in the legislation because not only can consent be coerced, ‘ignorance, especially for young people, can limit how much they understand what it is they are consenting to’.
2.55Ms Nicole Lambert, Chair, National Association of Services Against Sexual Violence (NASASV) supported further clarity around consent to be included in the legislation, stating ‘[t]he more clarity we can have around the concept of consent the better because it, otherwise, does provide an avenue for defence to question that’.
2.56Ms Angela Lynch, Executive Officer, Queensland Sexual Assault Network (QSAN), agreed, arguing that consent should be as explicit as possible and defined in legislation. She also stated that consent in this context really requires explicit consent in the relation to transmission of material due to its sexual nature. Ms Lynch advocated for affirmative consent, to ensure the consent provisions capture coercive control.
2.57The AGD explained that the Bill moves to ‘a consent-based model’ focusing on knowledge or recklessness in relation to non-consent. Recklessness in this context ‘includes not giving any thought at all to whether the person is consenting’.
2.58The AGD explained that consent relies on its ordinary meaning and is ‘generally understood as ‘free’ and/or ‘voluntary’ decision or agreement, which exclude instances of obtaining consent through fear, force or deception’.
2.59The AGD further explained that consent was not further defined in the Bill because:
This is of course a targeted reform dealing with consent as a single aspect of sexual abuse rather than a more comprehensive reform looking at how the Commonwealth Criminal Code deals with consent more broadly. For that variety of reasons, including that it is under consideration by the Law Reform Commission as part of its current inquiry, and to maintain consistency across the Commonwealth Criminal Code, it adopts the standard definition of consent as it exists at present, which is free and voluntary consent.
Realism of images: altered and unaltered material
2.60For the purposes of the Bill, it would be irrelevant for an offence under proposed section 474.17A whether the sexual material is in unaltered form, or whether the material has been created or altered by technology (for example, a deepfake).
2.61Professor Clough stated that the fact that the material is realistic should be clearer in the bill, beyond using ‘depict’, as this appears to be the intention of the Bill. Professor Clough further explained that:
If the assumption is that realistic fakes are harmful in a same or similar way to, if I may say, real images then that should be made clear – they’re treated as equivalent and they’re given the same maximum penalty.
2.62In contrast, the AFP supported the current drafting. From its perspective:
…it is important that criminal offences be drafted in a technology neutral way, to ensure they are future focused, and don’t become outdated or ambiguous by quickly emerging and evolving technologies. The Bill as drafted should achieve this.
2.63The AGD explained this element was explicitly included in the offences, to ensure that there is no doubt that realistic but false depictions of a person are captured by the proposed offence.
Exceptions
2.64The proposed new underlying offence has four exceptions ‘to ensure legitimate scenarios involving the transmission of the sexual material without consent are not criminalised’.
2.65The Law Council submitted that the reference to community standards of acceptable conduct, proposed paragraph 474.17A(3)(d), should be included as an element of the offence such as that in section 53S(1)(d) of the Crimes Act 1958 (Vic). The Law Council considered the matters covered by the proposed paragraph to be ‘central to establishing the criminality of the proscribed conduct’.
2.66Professor Clough was also of the view that the matters covered by the exceptions should be elements of the offence, rather than defences. He argued that this would be consistent with other jurisdictions, including Victoria.
2.67The Law Council raised further concerns about the reversal of the evidential onus of the exceptions. The Law Council considered that this approach is inconsistent with the Guide to Framing Commonwealth Offences and agreed with the Scrutiny of Bills Committee that there is not enough justification for reversing the burden.
2.68The NSWCCL and Scarlet Alliance submitted that:
…the definition of ‘private sexual material’ under the Criminal Code requires the depiction to be in circumstances that reasonable persons would regard as giving rise to an expectation of privacy. Comparatively, the proposed legislation shifts this element and sets out an exception where a reasonable person would consider the transmission acceptable instead. This change, from a ‘reasonable expectation of privacy’ to a ‘reasonable consideration of acceptability’ shifts the realm of prosecution whereby not only is there not an onus to establish an expectation of privacy, but there is also an exception for defendants to plead in that a reasonable person would consider the transmission acceptable.
2.69The AGD stated that the inclusion of the exceptions ensures that ‘the offences are proportionate and reflect community standards on both artificial intelligence and real sexual material’.
2.70With regard to the fourth proposed exception in proposed paragraph 474.17A(3)(d), the AGD explained that this would introduce a reasonable person test to ensure conduct considered acceptable by a reasonable person, ‘is not subject to overly broad criminalisation’. It is an objective test and would allow socially acceptable material to be transmitted even if it met the requirements for classification as sexual material under proposed subsection 474.17A(1).
Aggravated offences
2.71The Bill includes two aggravated offences that both require the proposed underlying offence to be established first: they are enlivened where certain civil penalty orders have been made or where the person who transmitted the sexual material without consent also created or altered the material.
Offence where civil penalty orders have been made
2.72The first proposed aggravated offence would be established when a person commits the underlying offence and has three or more civil penalty orders made against them in relation to contraventions of the OSA.
Threshold
2.73Several submitters suggested that the number of civil penalty provisions required to meet the threshold is too high and should be reduced to one civil penalty order.
2.74Ms Martin raised concerns with the practicality of the offence, given it is dependent on the conduct of the eSafety Commissioner and few civil penalty orders have been sought by the Commissioner.
2.75Sexual Assault Services Victoria (SASV) was similarly concerned by this threshold:
Requiring that the person has repeatedly been found liable for similar conduct at the civil standard in order for the aggravated offence/higher penalty to be reached is a prohibitive bar to set and may not be effective or workable in the context of rapid proliferation of deepfakes and the number of people producing and depicted in them. By the time a person is found guilty of a criminal offence, they are likely to have already produced material without being investigated for a civil penalty breach.
2.76The AHRC also raised concerns with the threshold. It argued this would mean impacted individuals would have to be subjected to multiple harmful occurrences of breaches of the OSA before the aggravated offence could be considered. Consistent with SASV, the AHRC recommended reducing the threshold to one civil penalty order, on the basis of the harm that can arise from this conduct, and suggested that lowering the threshold would increase the offence’s deterrent effect.
2.77The Queensland Police Service (QPS) voiced concerns about the practicality of prosecuting this offence due to the difficulty of knowing whether a perpetrator has had civil penalty orders made against them. The QPS argued that it would require notification about the civil penalty orders and related relevant evidentiary information to be shared, as such orders do not appear on an interstate criminal history check like criminal orders.
2.78The eSafety Commissioner advised that, in relation to the issuance of civil penalty orders, eSafety is usually able to take action informally as opposed to actually issuing civil penalty orders. Therefore, meeting the threshold of three civil penalty orders ‘is likely only to be enlivened in rare and serious circumstances’.
2.79Further, the eSafety Commissioner submitted that:
…we have only needed to issue a small number of removal notices, as our informal action has been successful in most instances (over 80%), which makes giving formal removal notices unnecessary.
2.80Ms Inman Grant explained that, in her knowledge, her office has never had someone offend more than three times. For that reason, the eSafety Commissioner was unsure how often the aggravated offence would be used given the patterns of conduct they have seen.
2.81The AGD explained that the threshold was set at three civil penalty orders because that replicates the existing aggravated offence in section 474.17A of the Criminal Code. Mr Reeve explained the reasons for this:
The rationale for three [civil penalty orders] turns on there being a continual pattern of conduct that the person has been formally notified of, called out on and had a civil penalty imposed on them for. So it is that pattern of prior behaviour, which could be escalating behaviour, of other forms of online abuse against a person that then escalates into the transmission of sexually explicit material about that person, which then attracts the offences under this bill. In terms of the aggravated offence, it is where there is that demonstrated pattern of prior serious behaviour that has attracted legal consequences previously. If a person does not meet the threshold for the aggravated offence, which has the higher penalty under the act, they may still be liable for the standard offence under the bill.
Offence where the material was altered or created and transmitted
2.82A second proposed aggravated offence would be enlivened where a person who transmits the sexual material without consent, also created or altered the sexual material.
2.83The AGD argued that creating or altering deepfake sexual material is more serious than simply transmitting already created or altered material without consent, warranting an aggravated offence dealing with the creation of the non-consensual sexual material. This is especially the case because it can be used ‘as a tool for sexual exploitation, extortion and harassment’.
Retrospectivity
2.84The Bill sets out that material created before the commencement of the Bill would be captured by the Bill but only if it was transmitted after the commencement.
2.85Mr Bradley believed the offence was not retrospective because it would be the creation or alteration of material combined with its transmission, which must occur after the Bill commences, that is the violation.
2.86AGD confirmed that this is not retrospective application because a person still has to transmit the material after the commencement of the Bill, and thus the necessary conduct occurs after the offence enters into force.
2.87Ms Eliza Amparo, Acting Deputy Director, CDPP, explained that this was not a new approach, referring to a similar approach in relation to the Commonwealth child sex offence scheme.
Penalties
2.88The proposed underlying offence would carry a maximum penalty of 6 years imprisonment and both proposed aggravated offences would carry maximum penalties of 7 years imprisonment.
2.89The Law Council viewed these penalties as ‘potentially disproportionate when considered in light of maximum penalties under comparable state and territory offences in relation to technology-facilitated intimate image-based sexual abuse’.
2.90The Law Council argued that it is undesirable to have large discrepancies between the penalties at the Commonwealth level and the state and territory level for the same conduct, noting that state and territory offences have maximum penalties of around 3 years imprisonment. The Law Council was concerned that this would lead to Commonwealth offenders being treated more harshly than state or territory offenders.
2.91As one of the mental elements for the offences is recklessness, the Law Council further considered that ‘recklessness is an insufficient mental element to ground liability’ for these offences where the maximum penalties are six- or seven-years imprisonment.
2.92The NSWCCL and Scarlet Alliance similarly considered the penalties are ‘excessive’, disputing and rejecting the arguments in the Explanatory Memorandum that the penalties are appropriate, reasonable and reflect the seriousness of the crime. They argued that ‘the severity of the penalties are not proportionate with the gravity of the offence, particularly when juxtaposed with the existing maximum penalties under state legislation’. They further claimed that:
…the seven-year maximum sentence for the aggravated offences, may result in convicted individuals being eligible for post-sentence supervision and detention regimes. The NSWCCL and Scarlet Alliance are concerned with the incremental broadening of the scope of offences included in such regimes. The proposed legislation, in the NSWCCL and Scarlet Alliance’s view, represents another step in that direction, thereby increasing the post-conviction consequences faced by offenders.
2.93In contrast, the AHRC opined that the penalties are ‘appropriately significant reflecting the seriousness of offences, the severely detrimental impact they can have, and the deterrent effect against offending conduct’.
2.94The AGD argued, in relation to the civil penalty order aggravated offence, that the penalty is appropriate because:
The aggravated offence applies where a person commits an offence to the criminal standard and after repeatedly being found liable for repeated contraventions of the Online Safety Act concerning either the non-consensual sharing of intimate images, or adult cyber abuse. These circumstances would indicate that the person has had a continued disregard of the harmful impacts that their conduct can have upon victims, justifying the imposition of a higher maximum penalty where that person subsequently disseminates sexual material concerning the victim online with consent.
Application to children
2.95During the course of the inquiry, various stakeholders reflected on circumstances in which children are offenders, sharing sexually explicit images of peers or adults. In that context, several stakeholders raised the issue of the Bill’s application to children.
2.96For conduct to be an offence, it must depict or appear to depict a person 18 years of age or older. However, as the age of criminal responsibility for Commonwealth offences is 10 years of age, sexual material non-consensually shared by children depicting someone over the age of 18 would be captured by the Bill.
2.97Ms Jacqueline McGowan-Jones, Commissioner for Children and Young People in Western Australia, welcomed the intention to strengthen offences for the non-consensual sharing of sexual material but submitted that some children and young people do engage in harmful sexual behaviour, ‘which could include image-abuse of adults’. While recognising that the impact of technology-facilitated abuse is significant, Ms McGowan-Jones explained that ‘as a function of their developmental stage, children and young people may have less ability to judge the appropriateness and impact of their actions or manage risks and impulsivity’.
2.98Mr Hardcore similarly explained why children and young people might be more inclined to create and share sexually explicit material:
…it's not just about the legality of it, because not everyone who commits a crime necessarily pauses and thinks about the logical outcome of their behaviour and how it might lead them to incarceration. There is an emotive element, an impulsive element, particularly for young people, whose brains are underdeveloped, who don't neurologically mature until they're in their mid-20s, who are also steeped in a culture…that is currently sexist, hypersexualised through mainstream entertainment, through pornography, through TikTok, through YouTube. So the blurring of lines towards creating that material themselves really needs to be fleshed out and explained.
2.99Mr Principe concurred, stating:
…it's about what becomes normative. Young people are just guided by what is common to them. I wasn't speaking to young people about sextortion and dick pics eight years ago, but, sadly—and forgive me for stating that—we have to talk to them about these topics now. This all becomes normative—what we allow. I hold the view that laws can be educative while certainly not being the full solution. So I think there is a huge lack of understanding for young people. From my understanding, from reading submissions and a lot of the research that that's [sic] gone into this, it creates such a vulnerability for the victims of image-based abuse because they don't appreciate the scale of the harm done to them. They're experiencing it, but, from one piece of research I saw, 71 per cent of them never spoke about up about it [sic] or sought to report it. There's a huge part not just for the perpetrators but for the victims to know that, as a society, our laws are actually going to support them.
2.100The Law Council observed:
…children and young people are over-represented in the offences of producing and sharing sexual images, in part due to a lack of understanding of the criminality of their actions and experience lifelong difficulties that flow from a finding of guilt for a sexual offence.
2.101ISA highlighted the need for children and young people guilty of non-consensually sharing sexually explicit material to have ‘developmentally appropriate consequences’. ISA suggested that ‘the justice system can provide a level of punishment appropriate to the perpetrator’s development age, motive for the offence and level of harm caused’.
2.102Ms McGowan-Jones argued that punishment should be developmentally appropriate:
…the principle that justice should be developmentally appropriate is relevant across the justice system, including in legislation, policy and the administration of justice, as well as in the development and delivery of prevention, intervention, diversion and detention services.
2.103Ms McGowan-Jones further submitted that:
Although children and young people are understood to have lesser culpability (and therefore lesser criminal responsibility), this does not reduce the impact on victims, and there is a legitimate need for legislation that improves public safety. However, criminalisation of young people is not necessarily effective in addressing or preventing further offending.
2.104Professor Delfino was concerned by the application to children, advocating for case-by-case consideration in circumstances where the legislation applied to children. She suggested including the age of the perpetrator among the exceptions in proposed paragraph 474.17A(3)(d).
2.105Mr Vinny Vijay, Senior Associate, Sydney Criminal Lawyers, explained that for children between 10 and 14 years of age, the presumption of doli incapax would operate in these circumstances:
…from a legal perspective, meaning that the state bears a burden to prove beyond a reasonable doubt that the young person knew what they were doing was seriously wrong in a criminal sense rather than morally wrong.
Statutory safeguard
2.106SASV suggested that ‘targeted statutory safeguards’ are needed in the context of children as perpetrators, instead of relying on the discretion of police and judges. Further to this, SASV explained that in Victoria, their image-based offences require the consent of the Director of Public Prosecutions to commence proceedings against a person under 16 years of age.
2.107The Law Council supported the inclusion of a new requirement for consent to be sought from the CDPP prior to commencing prosecutions against children under 16 years of age, replicating requirements in Victoria and New South Wales. The Law Council also recommended including the ability for police to issue cautions to children and young people who are alleged to have engaged in this creating or transmitting of sexual material, as an alternative to prosecution.
2.108Similarly, Professor Flynn argued that there is ‘a very delicate balance’ to be found:
I think that, when we're talking about quite severe penalties of up to six years or seven years, there is a need to be getting approval or insight or just the expertise of the Director of Public Prosecutions before prosecuting a child for these types of offences. There's also the issue, of course, that, when you are talking about children, if they're engaging in this behaviour against other children as opposed to adults, which this law is covering, then we're talking about a different type of offence in a sense. We're talking about child exploitation material in that sense. That needs to be treated in a different way from when we're talking about imagery that involves adults. I would lean towards having this as something that, from 16 and above, you should be getting approval from the Director of Public Prosecutions on. I think that's working well in the Victorian context. I do think we need to be focusing on education and other forms of prevention when we're talking about children.
2.109Deputy Commissioner Ian McCartney stated that the AFP had never charged anyone under 18 under the existing legislation. He said the ‘key thing is discretion based on the circumstances’ and each instance must be looked at on a case-by-case basis.
2.110The CDPP explained that the decision to seek consent from the Attorney-General to commence proceedings to charge a juvenile for an offence relating to child abuse material is made by the Director. Other decisions regarding whether to commence or continue the prosecution of a juvenile must be made by a CDPP Assistant Director or higher.
Overlap with current state and territory offences
2.111The NSWCCL and Scarlet Alliance highlighted that there are existing state and territory laws that cover the non-consensual distribution of intimate images. They considered that the Bill would overlap with the state and territory laws.
2.112The QPS submitted that the non-consensual sharing of intimate images is criminalised under the Queensland criminal code. Where the images are non-consensually shared, and in a way that would cause the other person distress, the offence is made out; it carries a maximum penalty of three years’ imprisonment.
2.113The Northern Territory Department of the Attorney-General and Justice also submitted that there are territory offences that cover the ‘capturing’ of material without consent and showing, delivering or supplying the material.
2.114The Law Council submitted that states and territory have ‘made efforts to proscribe the non-consensual distribution of intimate images’. As a result, it also raised the potential for overlap between the proposed Commonwealth offences in the Bill and state and territory offences relating to the distribution of intimate images.
2.115The AHRC acknowledged that states and territories have criminal provisions covering this area; however, in the commission’s view, these are inconsistent and ‘a patchwork of protections’.
2.116The AGD advised that the Bill is intended to complement related offences that already exist at the state and territory level. Additionally, state and territory police would be able to rely on the proposed Commonwealth offence to investigate and prosecute. This is particularly pertinent given, in some circumstances—such as instances of offending in a domestic violence context–state and territory police will likely be best placed to respond in their community policing role.
Gaps in the Bill
2.117Submitters repeatedly highlighted two gaps in the proposed legislation and suggested two offences to address them: a creation offence and an offence of threatening to create or distribute sexual material.
Creation offence
2.118Many submitters and witnesses observed that the Bill does not criminalise the creation of deepfake sexual material as a standalone offence. The creation of the deepfake material would only be an aggravating factor under the Bill, enlivened when a person has also non-consensually transmitted the deepfake sexual material.
2.119Professor Delfino submitted that the culpability of those that create deepfake sexual material is equal to, or more than, those that transmit the material and thus the absence of a creation offence is problematic. She recommended that the term ‘create’ be included in the definition of ‘transmit’ in the Bill, as a way to criminalise the creation of this material, covering off a gap in the legislative framework, within the existing offences.
2.120While the AHRC commended the inclusion of the aggravated offence where the person responsible for transmitting the sexual material is also responsible for its creation, it similarly recommended enactment of a standalone creation offence.
2.121The AHRC argued:
Establishing a standalone offence would recognise the violation and harms to women and other targeted persons, in the very creation of non-consensual sexual material – including for solely personal purposes. The law can also lay a strong ‘foundation for education and cultural change’ on non-consensual deepfake sexual material.
2.122Professor McGlynn and Ms Toparlak explained that there are ‘distinct harms in creating, threatening to share, and sharing sexually explicit deepfakes’ experienced at the individual and societal level. They submitted that failing to include a creation offence ‘sends a message that this conduct is acceptable and normalises it’, revealing ‘a collective societal tolerance and even acceptance of sexual violence against women’.
2.123According to Professor McGlynn and Ms Toparlak, criminalising the creation of deepfake sexual material would recognise the harm to victims of this conduct. It may also incentivise technology companies to develop effective tools to combat the proliferation of deepfake sexual material online.
2.124NASASV argued that criminalising creation is important from a prevention perspective because, as Dr Rachael Burgin, Chief Executive Officer, Rape and Sexual Assault Research and Advocacy (RASARA) explained, ‘harm is enacted at the point of creation’.
2.125Professor McGlynn and Ms Toparlak submitted that creating deepfake sexual material should be considered the ‘new voyeurism’. They explained that jurisdictions criminalise voyeurism even where the victim does not know about the conduct of the perpetrator or where the perpetrator does not intend to distribute the material.
2.126Mr Vijay said he would like to see the states and territories moving in coordination with the Commonwealth to address legislative gaps in this space. He considered that the creation of AI content would necessitate the use of a carriage service which would be enough for the Commonwealth to legislate.
2.127As an alternative to a creation offence, Professor Clough suggested that an accessing offence could be considered, in a similar way to accessing child exploitation material, and that would be within the Commonwealth’s jurisdictional power.
Commonwealth constitutional limitations
2.128The AGD observed that:
The Commonwealth does have limited constitutional powers in terms of the types of criminal offences that we can enact...The offences for the pure creation of either adult material or child sexual abuse material are typically dealt with by the states and territories.
2.129SASV recognised that there may be constitutional limitations on the Commonwealth’s ability to legislate a standalone creation offence. However, it submitted that, in this case, the Commonwealth should work with the states and territories to ensure the creation of deepfake sexual material is consistently criminalised as a standalone offence across jurisdictions.
2.130QSAN had a similar view, suggesting:
…through the meetings of Attorneys-General, something can be done around this issue to get some real coordination under the National Plan to End Violence against Women and Children and some consistency from the states as well, or perhaps it's a handing over of powers to the Commonwealth to deal with it under this.
2.131Professor Clough considered that using the external affairs power, grounded in Australia’s international obligations, could be one avenue to consider when exploring whether the Commonwealth could legislate a creation offence.
2.132Mr Bradley supported further consideration being given to a creation offence and a threat to create offence:
[p]articularly in domestic contexts or relationship contexts, deepfake imagery, as well as actual imagery or video content or sexualised content, is often created in consensual conditions but then the threat of usage can arise.
2.133He suggested that the Commonwealth’s constitutional power ‘would stretch to that, provided there’s an intention’:
In terms of the constitutional question, I think there are a couple of ways, potentially, of approaching that. The creation of certainly AI content or animated content, for example, would necessitate the use of a carriage service anyway. That's certainly going to fall within the constitutional reach. Where we're talking about something like threatened usage, I would think that, provided there's a purpose element that connects to use of the carriage service, there's probably enough there. In the terrorism realm, there are some pretty broad offences that pick up—that come well before dissemination but still criminalise accessing and creating content for that purpose. So I don't think it's that much of a stretch.
2.134The AGD explained that family, domestic and sexual violence is a standing discussion at the Standing Council of Attorneys-General meeting, of which Attorneys-General from all nine jurisdictions are members.
Threat to create and/or distribute offence
2.135Several submitters raised the absence of a threat to create and/or distribute offence in the Bill.
2.136Mr Bradley explained that the ‘threat of dissemination is frequently a feature of coercive control type situations and is an act of abuse in itself’. Professor Flynn explained that research demonstrates that ‘it is not uncommon for perpetrators to threaten to create or distribute images, regardless of whether that image actually exists’.
2.137These types of images are also used in family violence contexts as a mechanism for one partner to exert control over the other partner. Particularly in coercive relationships, ‘the knowledge that the image exists is, in itself, an implied threat’.
2.138As the eSafety Commissioner remarked, the Bill does not apply to threats to transmit sexual material without consent. As a result, the Bill would not cover sexual extortion (‘sextortion’), unless that conduct resulted in sexual material being shared. However, the eSafety Commissioner submitted that sexual extortion ‘remains the most-reported form of image-based abuse to eSafety’.
2.139Ms Christina Choi, Acting Deputy Director, CDDP, explained that making a threat to distribute sexual material could be covered by the existing offence in section 474.17 which deals with using a carriage service to harass or menace. However, the threat would only be captured if made using a carriage service (for example, by phone or email) as the offence criminalises threatening someone in and of itself, not the type of threat.
The role of social media and technology companies
2.140The role of social media and technology companies was the subject of much discussion during the inquiry.
2.141For example, Professor Flynn stated:
I think it’s also important that we are remembering to include a focus on technology providers, platforms and developers to be answerable to community standards and to remove apps or technologies from their platforms where those are promoting criminally harmful behaviours.
…I would argue that there's no place for [nudify apps] to be advertised freely on our social media platforms or networks or websites. I'd be looking at if there are ways for us to control the types of websites or things that can be made available or accessed in the Australian context. That would be useful.
2.142Mr Principe considered that technology companies must be held accountable for their role:
…the law must come down, in my opinion, far more strongly against the creators of these programs—the app stores and the [internet service providers] who make these abuses possible. Until very recently nudifying apps, as they’re called, were accessible on the app store and were rated for ages four and above.
2.143In relation to removing content that violates its policies, TikTok Australia submitted that:
TikTok uses a combination of machine moderation technology and specialist teams to identify, review, and, where appropriate, remove content that violates our Community Guidelines. Our Trust and Safety teams include Australian-based specialists who are familiar with our local culture and norms, as well as global team focused on product safety.
2.144In relation to adult sexual and physical abuse, TikTok noted:
We do not allow showing, promoting, or engaging in adult sexual or physical abuse or exploitation. This includes non-consensual sexual acts, image-based sexual abuse, sextortion, physical abuse, and sexual harassment. If users believe they have experienced an intimate privacy violation on our platform, they can report it through our Privacy Portal.
2.145Google stated that ‘[a]utomation is generally Google’s first line of defence in dealing with policy-violating content. Our systems are designed…not to surface content that violates our content policies’.
2.146Google explained that victims are able to report non-consensual explicit imagery and ‘other issues directly within the Image Search results page’, making it easier to request the removal of such material.
2.147With regards to images removed from Google search under Google’s non-consensual explicit imagery (NCEI) or involuntary synthetic pornographic imagery (ISPI) policies, Google explained ‘we have systems in place to detect and remove duplicates of that image, to reduce the need for victim-survivors to request removals one by one’.
2.148In relation to sites that have a high proportion of NCEI, Google noted:
If we process a high volume of such removal involving a particular site, we use that as a signal to improve our results. For sites that received a high volume of NCEI removals, we demote other content from the site in our Search results.
2.149Google submitted that apps that contain ‘nonconsensual sexual content created via deepfake’ are prohibited. Apps undergo an automated review, and where this review determines that there is a risk the app may violate Google Play policy it will then undergo manual review, before being approved for the Googe Play store. Apps that the automated review determines with a high level of confidence that the app violates Google Play policy will be rejected; and the same would apply for the manual review.
2.150Google further explained its enforcement actions for Google Play:
If an app or developer account violates any of our policies, we may reject, remove, suspend, or limit the visibility of the app. Google Play may also restrict a developer’s account or terminate the developer’s account entirely, for violations.
2.151Content that violates YouTube Community Guidelines is removed and channels or accounts may be terminated for repeated violations or after one violation if it constitutes severe abuse.
2.152Google’s generative AI tools are governed by its Generative AI Prohibited Use Policy which prohibits their use for the creation of sexually explicit content. Google has also developed the SynthID tool ‘that watermarks and detects AI-generated content’ which are embedded directly into the images, audio, text and video content.
2.153TikTok submitted that AI-generated content or ‘edited media that shows realistic-appearing scenes or people’ now must be labelled with either the AI-generated content label or by adding a caption, watermark or sticker of the user’s own. If content is uploaded from certain other platforms, TiKTok has begun automatically labelling AI-generated content.
2.154Both TikTok and Google argued that they work with law enforcement agencies in Australia.
2.155However, the eSafety Commissioner stated:
…we're not really seeing very consistent enforcement of app store policies. I'm sure that if we did an own-motion investigation, we'd find plenty of apps that are hosted on Google Play and the iTunes Store that would show intimate images shared without consent. We had Apple in a couple of months ago. It's against their policies to be able to host apps that have porn, and we were able to pull up porn in the room with them there. Well, these clearly aren't working. Again, we're just ramping up our compliance efforts around search engines and app stores. That, to me, would be a clear violation of their app store policies. We have seen them occasionally act when a regulator, a trusted flagger or a news outlet points out that they have apps like Wizz, which was being widely used for sexual extortion. Then they will temporarily remove that app.
2.156The eSafety Commissioner argued, based on her experience in the industry, that reputation and revenue impacts drive tech companies’ behaviour.She further remarked:
…a lot of these US based companies, they’re not incentivised and will not act unless it is strictly illegal. The challenge with image-based abuse to date is that it’s what we would call legal but harmful, or lawful but awful.
2.157In support of the Bill, Ms Inman Grant stated:
I believe that the bill adds powerfully to the existing interlocking civil powers and proactive safety by design interventions championed by eSafety but also contained in some of our systems and process powers. Through these, we should feel justified putting the burden on AI companies themselves to engineer out potential misuse.
To demonstrate, here's the description of a popular open-source AI nudifying app: ‘Nudify any girl with the power of AI. Just choose a body type and get a result in a few seconds.’ And another: ‘Undress anyone instantly. Just upload a photo and undress AI will remove the clothes within seconds. We are the best deep nude service.’ So it's really difficult to conceive of a purpose for these apps outside of the nefarious. Some might wonder why apps like this are allowed to exist at all, given that their primary purpose is to sexualise, humiliate, demoralise, denigrate and create child sexual abuse material of girls, according to the predator's personal predilection.
A Bellingcat investigation found that many such apps are part of a complex network of nudifying apps owned by the same holding company that effectively disguises detection of the primary purpose of these apps in order to evade enforcement action. Shockingly, thousands of open-source AI apps like these have proliferated online and are often free and easy to use by anyone with a smartphone. So these apps make it simple and cost-free for the perpetrator, while the cost to the target is one of lingering and incalculable devastation.
Penalties for technology and social media companies
2.158Some stakeholders acknowledged that social media platforms are used for a range of technology-facilitated abuse, not just the non-consensual transmission of sexual material.
2.159For example, the QPS submitted that ‘[s]ocial media is the primary facilitator of technology-facilitated abuse and has become a means for offenders to perpetrate domestic and family violence’.
2.160As a means to reduce the proliferation of deepfake material, ISA recommended that greater penalties be imposed on social media companies who allow this material to be shared on their platforms, as well as:
Stronger requirements should also be established for social media websites and platforms hosting deepfake content to proactively prevent harmful content being uploaded, and quickly removed when it is identified in hosted content.
2.161NASASV also recommended penalties for technology companies:
…we do need to create some accountability for the tech companies that promote and support this kind of material…but who at the same time deny any role in it or any responsibility.
2.162Ms Martin and Dr Burgin were similarly supportive of greater accountability for technology companies, including penalties for companies who profit from this conduct.
2.163SASV recommended ‘taking down’ the apps, platforms or software that enable to creation of deepfake sexual material as well as criminalising companies that own or sell the apps or software. It was also supportive of strengthening civil penalties.
2.164While NSWCCL and Scarlet Alliance considered there were benefits from additional regulation of third-party content providers and those platforms that facilitate the creation or sharing of deepfake sexual material, they cautioned that ‘this must not come at the cost of deplatforming or shadowbanning sex workers’.
Non-legislative responses
2.165While supportive of the legislation, many submitters and witnesses recommended that additional non-legislative responses are also needed to address the problem of technology-facilitated abuse and the non-consensual transmission of sexual material.
2.166For example, ISA regarded ‘the misuse of deepfake technology as a societal challenge and believes that global collaboration will be required to address the misuse of deepfake generation technologies’.
Primary prevention and education
2.167Most stakeholders raised the importance of primary prevention and education in concert with legislative reform, to address the underlying societal issues fuelling the non-consensual creation, alteration and/or transmission of sexual material.
2.168Primary prevention is key. As Mr Graham Catt, Chief Executive Officer, ISA, said, ‘[p]rosecution is what we need to be doing to people where we’ve failed to prevent the behaviour’ but preventing the behaviour in the first place should be the goal.
2.169RASARA emphasised the importance of primary prevention whilst underscoring ‘[w]hat we’re [currently] doing for prevention in Australia doesn’t work’:
…we need more than signs at bus stops…That's why we've had more than 50 women killed at the hands of men this year. Prevention isn't working in the way we've thought about it and the way we've done it. We need actual meaningful investment into services. Sexual assault services are the most critically underfunded sector. Ms Lynch flagged 12-year-olds on waiting lists who've been raped in Queensland. That's not just Queensland; that'll be everywhere. If we think that it's okay for a 12-year-old to sit on a waitlist for specialist support counselling—that's the context we're in. Sexual violence is the poor cousin of family violence. What we need to understand is that it requires a specialist response, but it's also a precursor offence to homicide. It's a serious risk factor for homicide—murder. We have to start taking it seriously. And we just don't. We haven't got a meaningful prevention framework for sexual violence. We haven't got a meaningful response framework. Survivors do this work—like Ms Martin here today, absolutely advocating her heart out for seven years, doing a damned good job and doing that damned good job for free. It's just not good enough.
2.170NASASV remarked:
I would note that the community impact could be looked at as well. It has been raised by some of my colleagues here, today, but I think it's very important for us to come back to the prolific rise in the creation and sharing of this material, which is having a very damaging and harmful impact on normalising violent sexual assault. The long-term impact of this, in terms of the degradation of women and gender-based violence, is also profound, hence the importance for action now and not just in this criminal space but also more in the prevention space.
2.171SASV highlighted that ‘deepfake pornography is accessible to young people without proper safeguards’, and argued that:
…we currently do not have sufficient programs in place providing young people with the education necessary to help them understand the illegality of, and harms caused by, the creation and distribution of deepfake pornography and image-based offending more generally.
2.172Similarly, in relation to freely accessible pornographic websites, Mr Principe observed:
An estimated 90 per cent of all deepfakes are explicit, with the majority depicting women and girls. In less time than it will take me to finish this statement, a realistic sexual image of you or I could be created through these platforms. These websites and apps should not be allowed to exist when they are created and utilised to abuse. They should not profit until they can prove they are safe by design and have implemented all measures to prevent these harmful crimes. This why [sic] we also need our government to urgently implement age verification for pornographic websites. The ideas and attitudes from porn are shaping young people who are exposed, and the sites themselves are a primary gateway for promoting deepfakes and the AI tools themselves to then abuse other individuals. We must put the rights and wellbeing of women and children ahead of the profits of these industries.
2.173Professor Flynn suggested that there is a gap in education about the non-consensual transmission of sexual material, the consequences of which normalise the sexualisation of women and girls. As such, ‘targeted, wide-scale messaging around the criminality of these offences’ is needed but so is work around gender-based violence. NSWCCL and Scarlet Alliance recommended greater investment into consent education and awareness campaigns around the consequences of the non-consensual transmission of sexual material.
2.174ISA recommended that a national education campaign be implemented to raise awareness about the harms of deepfake technology and the legal consequences of its misuse. ISA submitted that ‘immediate education on generative AI literacy and to make young people aware they are breaking the law if they participate’ in the non-consensual transmission of sexual material is essential. However, ISA expressed that this cannot be the sole responsibility of schools or parents, given the pressure already on teachers to upskill regarding generative AI.
2.175The AHRC supported the need for education and training programs to accompany the introduction of this legislation to ‘facilitate the effect application and enforcement’ of the Bill. It also recommended further education for the public regarding the ‘legal and social harms of utilising tools to create deepfake sexual materials’.
2.176The eSafety Commissioner recommended education for law enforcement and the judiciary, as well as the public:
The Bill’s implementation would benefit from a broad community education and awareness raising campaign to reduce stigma and promote help-seeking among victim-survivors, while highlighting the harms of image-based abuse and that perpetration is never okay. Specific training and upskilling on trauma-informed approaches for law enforcement and the judicial system should be considered…
2.177With specific regard to children and young people, Ms McGowan-Jones indicated that ‘developmentally appropriate guidance and advice’ is needed to accompany the legislation to ensure they are aware that the non-consensual transmission of sexual material of adults is illegal. Further, Ms McGowan-Jones argued for tailored education and support for children and young people with developmental delays, neurological disorders or disability, and those who have experienced sexual abuse and trauma.
2.178Mr Hardcore described the role of the online environment in the development of children and young people’s core beliefs, and the digital media environment as ‘a key source of ideas and values which people digest and internalise’. For those reasons, he emphasised the importance of society doing more:
…to provide positive online environments for children and young people, the better the end result. By limiting harmful content that we are exposed to and by rejecting the idea that it is acceptable to dehumanise and degrade others by using technology, we can produce more positive long-term outcomes in our society.
2.179Both Mr Hardcore and Mr Principe highlighted the need for education, but stressed how essential the ‘empathy piece’ is to achieving change:
I am obviously an educator and I am a consent ambassador for the government, which I'm grateful for. However, as I say at the end of all my talks to young people, I don't need to write on a board to a group of young, empathetic, kind young men, 'Don't sexually assault an unconscious woman. Don't make jokes about rape.' Yes, I think we have to educate, and I want to educate, but Richie's touched on it: it is the empathy piece, and that's why I share so many stories. I ask young people to not just give me the right facts or answers; I ask them, 'How would this make someone feel, what would that be like to rock up to school if this happened, and how would you feel talking about this?' because I actually want to engage their hearts. And call me a chronic idealist—I am—but that's what I seek to do, beyond just the laws.
2.180And:
How do we put empathy at the forefront of their education? I truly believe that it's not what we tell people and graphs and charts that lead to behaviour change; it's how we make them feel. How do we help them understand that if you're—I feel upset myself talking about it—putting your young classmate's face over a pornographic movie star's video or whatever it may be, that can really destroy a person internally? How do we, in 'ages and stages' ways, ensure that our young people, boys and girls—because no doubt young men have been victims and will be victims of deepfake pornography too—understand that there are real consequences for your actions? Yes, you'll be held accountable for them, but, through a preventive lens, why do you want to do this? I think that's a really important component to it.
2.181ISA agreed:
…from an educator's point of view, the fact that there is such ease of access to a platform which actually allows you to create this, when you're dealing with young minds and people in their formative stages, is incredibly difficult to deal with…What we hear from educators is that, yes, it is helpful to point to the law and say, 'Look, this is illegal.' That's part of that education campaign, because that resonates with people. But from an education point of view this is—as we've described in our submission, it's an incredibly extreme form of bullying facilitated by technology. Therefore, when we think about bullying and the best way to educate and how that's done and has been done, effectively, as we're saying, it's through empathy, it's through helping them understand that this has an impact, which isn't, 'You run a risk of being prosecuted.' The impact has to be understanding the impact that has on another young person, such as a classmate, and trying to get that across.
When we talk about education, yes, understanding that you've done something illegal is part of that. I think understanding from a school point of view—this is one of those challenging things as well. What schools increasingly deal with is what is inside the school gate, what is outside the school gate and where your responsibility starts and finishes. Again, I think the feedback from educators…is basically that this is a societal problem that we're trying to educate our children about. That's the education piece that needs to sit alongside criminality. So, yes, you can be prosecuted for this, but actually this is going on around us. This actually guides people's behaviours and people's thinking. This is the impact it has on people like you. The education about preventing that from—prevention is so important.
Deepfake detection tools
2.182Some stakeholders discussed the role of deepfake detection tools. For example, ISA argued for an increased focus on ‘the early detection and removal of deepfake material from websites and online platforms’.
2.183ISA suggested that supporting DigiTech companies to develop and implement technology that can identify deepfake material and stop its transmission online would be advantageous. ISA also explained that social media platforms, forums and private messaging applications are the main platforms by which deepfake sexual material is transmitted in a school context, and that the integration or application of detection tools to these platforms would be beneficial, allowing ‘a more rapid response to illegal activity’.
2.184The eSafety Commissioner observed that ‘deepfake detection tools are significantly falling behind the rapid proliferation of powerful AI models for imagery, audio and video’ and that detection tools ‘are also applied at the back-end of this abuse, which means harm has already occurred’.
2.185Despite this, the eSafety Commissioner considered there is a role for deepfake detection tools (emphasis added):
What we need is effective detection tools. This will require multiple technical interventions, including manual forensics analysis to effectively flag media manipulation that may be so photo-realistic that it isn’t discernible to the naked eye.
2.186NASASV also expressed the need for investment in technology to help identify and remove deepfakes and violent pornography.
Committee view
2.187The Criminal Code Amendment (Deepfake Sexual Material Bill) 2024 aims to modernise and strengthen Commonwealth offences for the non-consensual transmission of sexual material, both unaltered material and material created or altered by technology, such as deepfakes. The Bill would implement a commitment made by the government following the National Cabinet in May 2024 on gender-based violence.
2.188The committee acknowledges the devastating impacts the non-consensual transmission of sexual material has on victims, both personally and professionally, and that the resulting harm is often enduring. The committee recognises the harms this conduct has both at an individual and a societal level, by normalising sexual violence particularly against women and girls.
2.189The committee regards the Bill as an important deterrent to this conduct, communicating to the Australian public that this behaviour is unacceptable and will be met with serious criminal consequences.
2.190The committee considers that the Bill is a necessary step in addressing the proliferation of non-consensual transmission of sexual material. It regards the new offences as clear and sufficiently technology neutral that they will respond to advances in technology, a key issue with the existing offences. The committee acknowledges that the proposed underlying offence, proposed section 474.17A, is based on a consent model and not tied to the definition of ‘private sexual material’ which would be repealed by the Bill. By removing the requirement for material shared to be ‘private sexual material’, the new offences would importantly cover both unaltered and altered material, such as deepfakes.
2.191The Bill includes two aggravated offences that would rely on the proposed underlying offence being established first. The first aggravating circumstance, proposed subsection 474.17AA(1), is the existence of three civil penalty orders being made against the perpetrator prior to the criminal offending.
2.192The committee is sympathetic to concerns raised by some stakeholders about this threshold being too high. Given the seriousness of the conduct sought to be addressed by the Bill, the committee considers that the Attorney-General should review this threshold after two years of the Bill’s operation, consistent with a recommendation of the Law Council of Australia.
2.193The committee recommends that the Attorney-General reviews the threshold outlined in proposed subsection 474.17AA(1) after two years of the Bill’s operation.
2.194The second aggravating circumstance, proposed subsection 474.17AA(5), occurs where the person who transmitted the sexual material non-consensually, also created or altered the material. The committee regards this as a crucial and appropriate aggravated circumstance given the level of harm that arises from the creation of the material alone.
2.195The committee regards the penalties—6 years imprisonment for the underlying offence, and 7 years for the aggravated offences—as proportionate to the seriousness of offending and expects that they will serve as an appropriate deterrent.
2.196The committee acknowledges that stakeholders considered there to be gaps in the Bill as it does not criminalise the creation of sexual material, including deepfakes, nor does it criminalise threatening to create or distribute sexual material, where those threats are made in person.
2.197The committee thanks the Attorney-General’s Department for the advice that the Commonwealth is working with states and territories, through the Standing Council of Attorneys-General, on options to improve responses to technology-facilitated abuse and deepfakes.
2.198Given the serious harm that occurs from the act of creation itself and threats to create and/or distribute, the committee considers it important that there are harmonised offences across Australian jurisdictions in relation to the non-consensual creation of sexual material; and the threat to non-consensual creation and/or distribution of sexual material that does not use a carriage service.
2.199The committee acknowledges that the Commonwealth offences proposed in the Bill are intended to complement related offences at the state and territory level, such as state offences addressing the non-consensual creation of sexual material. It also understands that state and territory police would be able to investigate and prosecute perpetrators under Commonwealth offences as well as state and territory offences, increasing the prosecutorial options for police.
2.200The committee recommends that the Attorney-General continues work already underway via the Standing Council of Attorneys-General in relation to development of harmonised offences across Australian jurisdictions for the:
non-consensual creation of sexual material; and
threat to non-consensual creation and/or distribution of sexual material that does not use a carriage service.
2.201 The committee considers that while the Bill is important and necessary to ensure that our criminal laws keep pace with technology, criminalisation is not the whole response to this issue. As the committee heard from many submitters and witnesses, education and primary prevention are other key parts of the response.
2.202It is imperative that the public, and young people in particular, understand both the illegality of this conduct and the serious and long-lasting individual consequences for victims.
2.203The committee commends the work of educators such as MrDaniel Principe and Mr Richie Hardcore, as well as that of advocates such as Ms Noelle Martin and specialist sexual violence support services. These individuals and organisations undertake profoundly important work on behalf of the Australian community, with enduring impacts on children, young people and victim survivors.
2.204For these reasons, the committee urges the Commonwealth government to develop and implement a public education and awareness campaign about the impact of non-consensual creation and distribution of sexual material on victims, and the serious consequences for perpetrators.
2.205In the committee’s opinion, meaningful societal change around the non-consensual creation and distribution of sexual material will only occur if we continue to engage with our children and young people in empathetic and accessible ways, such as peer-facilitated fora.
2.206The committee therefore considers it essential that the Commonwealth government leads, through the Education Ministers Meeting, the development and implementation of age-appropriate education programs and resources for school-aged children about sexuality, sexual expression and safety online.
2.207The committee notes the work of Education Ministers to implement version 9 of the Australian Curriculum and the work of schooling systems to implement age and developmentally appropriate programs on consent and online safety within the context of respectful relationships. The committee recommends the Education Ministers Meeting continues to progress their work to strengthen respectful relationships in schools.
Recommendation 4
2.208Subject to the preceding recommendations, the committee recommends that the Senate urgently passes the Bill.
Senator Nita Green
Chair