Explanatory Memorandum
(Circulated by the authority of the Attorney-General, the Hon Mark Dreyfus KC MP)STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Criminal Code Amendment (Deepfake Sexual Material) Bill 2024
6. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
7. The Bill will amend Part 10.6 of the Criminal Code to modernise and strengthen offences that deal with the non-consensual sharing of sexually explicit material online, including material created or altered using technology.
8. The amendments will repeal sections 474.17A and 474.17B of the Criminal Code and introduce a new offence for the transmission of sexual material relating to persons who are, or appear to be, over the age of 18, without consent. The Bill will also introduce two aggravated offences to this new offence.
9. The first aggravated offence will apply an increased penalty to the offence where the commission of the offence involves the non-consensual sharing of sexual material, and, before the commission of that offence, three or more civil penalty orders were made against the person for contraventions of relevant provisions of the Online Safety Act.
10. The second aggravated offence will apply an increased penalty to the offence where the commission of the offence involves the non-consensual sharing of sexual material, and the person was responsible for the creation or alteration of the material transmitted.
11. The phrase 'non-consensual sharing of sexual material' refers to the sharing of an image, video or audio of a person in an intimate manner using a carriage service (such as on social media or using the internet), where the sharing of the image, video or audio was without the consent of the person depicted in the material. It is colloquially known as 'revenge porn', and commonly referred to as 'image-based abuse'.
12. Part 10.6 of the Criminal Code currently criminalises the sharing of private sexual material online. These offences rely on a definition of 'private sexual material' that requires the material to depict a person in circumstances that a reasonable person would regard as giving rise to an expectation of privacy.
13. 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.
Human rights implications
14. This Bill engages the following rights:
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- the prohibition of torture, or cruel, inhuman and degrading treatment or punishment in Article 7 of the ICCPR
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- the right to liberty of persons and freedom from arbitrary detention in Article 9(1) of the ICCPR
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- the right to presumption of innocence in Article 14(2) of the ICCPR
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- the right to not be subject to retrospective criminal laws contained in Article 15(1) of the ICCPR
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- the right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR
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- the right to freedom of expression primarily in Article 19 of the ICCPR
Prohibition of torture, or cruel, inhuman and degrading treatment or punishment
15. Article 7 of the ICCPR states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
16. The Bill engages the prohibition on torture, cruel, inhuman or degrading treatment by providing for penalties of imprisonment. Penalties of imprisonment may amount to cruel, inhuman or degrading treatment where their application is disproportionate to the offence committed.
17. The penalties in the Bill have been set at a level that is adequate to deter and punish damaging behaviour, with more higher penalties for more serious scenarios including repeat offences. Responsibility for determining criminal guilt and imposing an appropriate sentence rests with the courts in their exercise of judicial power. The court will have discretion to implement an appropriate penalty based on all of the circumstances of the case. In this regard, the application of the penalties is not disproportionate.
Right to liberty of persons and freedom from arbitration detention
18. Article 9(1) of the ICCPR states that everyone has the right to liberty and security of person and that no one shall be subjected to arbitrary arrest or detention.
19. Limitations on the right to liberty are permitted to the extent that they are 'in accordance with such procedures as are established by law', provided that the law and the enforcement of it is not arbitrary, and where they are reasonable, necessary and proportionate to achieve a legitimate objective.
20. This Bill limits the right to liberty of a person and freedom from arbitrary arrest and detention by imposing maximum penalties for offences for particular forms of conduct undertaken non-consensually, for which a court may lawfully prescribe a period of imprisonment for a person found guilty of the offence.
21. The Bill imposes a maximum penalty of 6 years' imprisonment for the new offence targeting the non-consensual transmission of sexual material online. This penalty is appropriate as it reflects the potential damaging nature of sharing sexually explicit material of an adult person without their consent. It recognises that this behaviour is a serious breach of a person's right to privacy and often has serious, harmful and reputational consequences for the person depicted in the material.
22. The Bill further introduces aggravated offences for the transmission of sexual material without consent after certain civil penalty orders were made, and for the creation or alteration of sexual material that is transmitted without consent. The aggravated offences will both attract a maximum penalty of 7 years' imprisonment.
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- The first aggravated offence applies where a person commits an offence to the criminal standard and has repeatedly been found liable for similar conduct at the civil standard. This indicates that the person has continued disregard for the damaging effect of this conduct.
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- The second aggravated offence applies where the person transmitting the material is also responsible for creating or altering the material. This indicates that they intentionally created the material with a purpose to use it maliciously and harm the individual depicted. The penalties for the aggravated offences are reasonable to achieve the legitimate objective of ensuring that the courts are able to hand down sentences to offenders that reflect the seriousness of their offending.
23. The penalties are reasonable given that they will only be applied by a court if a person is convicted of an offence as a result of a fair trial in accordance with the procedures as established by law. Maximum penalties are set to adequately deter and punish a worst-case offence, while supporting judicial discretion and independence. The penalty will only be applied by a court if the prosecution has proved the elements of the offence beyond reasonable doubt. In this regard, the application of the penalties is not disproportionate. Further, the penalty will apply only to offences committed at or after the commencement of the amendments.
24. Specific defences will be available for the offence of using a carriage service to transmit sexual material without consent. In addition to specific defences, the general defences under Part 2.3 of the Criminal Code will be available for all offences. These general defences include mistake or ignorance of fact, ignorance of subordinate legislation that was not available, claim of right over property, duress, sudden or extraordinary emergency, self-defence, and lawful authority. Defences will allow persons at risk of deprivations of liberty to justify their actions and defend the criminal charge against them.
25. On this basis, the limitation imposed on the right to liberty and freedom from arbitrary detention is reasonable, necessary and proportionate to achieving the legitimate objective of strengthening laws to protect Australians from online harms.
Right to presumption of innocence
26. Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.
27. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt.
28. The Bill engages this right by applying the presumption set out in section 475.1B of the Criminal Code to the new offences. The presumption in section 475.1B provides that if a physical element of the offence consists of a person using a carriage service to engage in particular conduct, and the prosecution proves beyond reasonable doubt that the person engaged in the relevant criminal conduct, then it is presumed, unless the person proves to the contrary, that the person used a carriage service to engage in that conduct.
29. The purpose of this presumption is to address problems encountered by law enforcement agencies in proving beyond reasonable doubt that a carriage service was used to engage in the relevant criminal conduct. Often evidence that a carriage service was used to engage in the criminal conduct is entirely circumstantial, consisting of evidence, for example, that the defendant's computer had chat logs or social media profile information saved on the hard drive, that the computer was connected to the internet, and that records show the computer accessed particular websites that suggest an association with the material saved on the hard drive.
30. Absolute liability applies to an element in the aggravated offence where three or more civil penalty orders were made against the person before the commission of the offence (to transmit sexual material without consent). Absolute liability is appropriate for this element because it does not affect the culpability of the person, but rather sets the perimeters of the offence. The measure is proportionate in that it only applies to an element of the offence and not the offences as a whole. In this respect, the prosecution will still be required to prove, beyond a reasonable doubt, all other elements of the offence including fault elements of intention, knowledge or recklessness
31. The Bill includes specific defences that apply to the transmission of sexual material without consent. Consistent with section 13.3 of the Criminal Code, the defendant bears an evidential burden in relation to a defence, which requires the defendant adduce or point to evidence that suggests a reasonable possibility that a particularly matter exists or does not exist. Reversing the burden of proof limits Article 14(2) in that a defendant's failure to discharge the burden may permit their conviction despite reasonable doubt as to their guilt.
32. The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, which sets out established principles of Commonwealth criminal law policy, acknowledges that it is appropriate to reverse the onus of proof and place a burden on the defendant in certain circumstances. This includes where a matter is peculiarly within the knowledge of the defendant and where it would be significantly more difficult and costly for the prosecution to disprove the matter than for the defendant to establish the matter.
33. It is reasonable and necessary for the burden of proof to be placed on the defendant in relation to the defences provided for in the Bill. If a person had a particular reason for thinking that they were transmitting the material for legitimate purposes or in circumstances where it would have been considered reasonable and acceptable, it would not be difficult for them to describe how they came to those conclusions. It would be significantly more cost-effective for the defendant to assert this matter rather than the prosecution needing to prove, beyond a reasonable doubt, that the transmission of the material without consent was neither necessary, reasonable, or for a genuine purpose, in all the circumstances.
34. Defences which place an evidential burden on the defendant are proportionate because, the prosecution will still be required to prove each element of the offence beyond reasonable doubt. Further, if the defendant discharges an evidential burden, the prosecution will be required to disprove those matters beyond reasonable doubt, consistent with section 13.1 of the Criminal Code.
Right to not be subject to retrospective criminal laws
35. Article 15(1) of the ICCPR provides that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under law at the time when it was committed.
36. The application of amendments provision in the Bill (Item 7) provides that the amendments will apply in relation to material that is transmitted, made available, published, distributed, advertised, or promoted after the commencement of the Schedule, regardless of whether the material was created or altered before or after that commencement.
37. This is necessary because it would be impossible for the prosecution to prove, based on admissible evidence, precisely when material was created or altered and whether that was before or after the commencement of this Bill. However, this is appropriate given that the prosecution will still need to prove that the transmission of the material, that the material is 'sexual material', and an absence of consent occurred following the commencement.
Right to protection against arbitrary and unlawful interferences with privacy
38. Article 17 of the ICCPR states that no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence, nor to unlawful attacks on their honour and reputation.
39. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, for a reason consistent with the ICCPR, and reasonable in the particular circumstances. Any interference with privacy must be proportionate to a legitimate end and be necessary in the circumstances of any given case.
40. The offences in the Bill are directed towards protecting an individual's privacy and reputation by prohibiting the non-consensual sharing of sexual material online. The non-consensual creation and sharing of sexual material is a serious breach of a person's right to privacy and often has serious, harmful and reputational consequences for the person depicted in the sexual material. The objectives of harm prevention and minimisation and protection of privacy and reputation, are legitimate objectives, achieved through reasonable and proportionate means.
41. Law enforcement agencies may use search warrants and other powers to investigate these new offences. The execution of such powers is subject to clear statutory safeguards and criteria. To the extent there is a limitation on the protection against arbitrary or unlawful interference with privacy, statutory safeguards ensure any interference is reasonable, necessary and proportionate.
Freedom of expression
42. Article 19(2) of the ICCPR states that everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. Any limitation on the right to freedom of expression must be reasonable, necessary, and proportionate for the pursuit of a legitimate objective and for the respect of the rights or reputations of others or for the protection of national security, public order, or public health or morals.
43. The Bill engages the right to freedom of expression as it restricts the ability for people to use a carriage service to transmit, make available, publish, distribute, advertise and promote sexual material of another person who is, or appears to be, over the age of 18 years of age, without their consent. However, the Bill includes specific defences that apply to the transmission of sexual material without consent to ensure that this limitation is targeted, proportionate and does not overly criminalise the sharing of such material for legitimate purposes. This include where the transmission was to assist law enforcement investigations, for genuine medical or scientific purposes or where a reasonable person would consider the transmission without consent to be acceptable in the circumstances.
44. The policy objective of the Bill is intrinsically restrictive of freedom of expression as it restricts one's ability to post or receive certain kinds of images, videos or audio unless the consent of the person depicted in the material is provided.
45. The Bill aims to prevent criminal activity by targeting the distribution and transmission of a particular type of material that can be used as a dangerous tool against vulnerable people for extortion, sexual exploitation or harassment. Ensuring that consent is an essential element to the distribution of such material is a legitimate objective to protecting one's privacy and reputation. To the extent that the Bill engages the right to freedom of expression, these restrictions are reasonable, necessary and proportionate to prevent online abuse.
Conclusion
46. Any interference with human rights occasioned in this Bill is in pursuit of a legitimate objective. The Bill is compatible with human rights given that, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.