Criminal Code Amendment (Deepfake Sexual Material) Act 2024 (78 of 2024)

Schedule 1   Amendments

Criminal Code Act 1995

5   Section 474.17A of the Criminal Code

Repeal the section, substitute:

474.17A Using a carriage service to transmit sexual material without consent

Offence

(1) A person (the first person ) commits an offence if:

(a) the first person uses a carriage service to transmit material of another person; and

(b) the other person is, or appears to be, 18 years of age or older; and

(c) the material depicts, or appears to depict:

(i) the other person engaging in a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii) a sexual organ or the anal region of the other person; or

(iii) if the other person is female - the other person's breasts; and

(d) the first person:

(i) knows that the other person does not consent to the transmission of the material; or

(ii) is reckless as to whether the other person consents to the transmission of the material.

Note: For material that relates to a person who is, or appears to be, under 18 years of age, see:

(a) the definition of child abuse material ; and

(b) the offences relating to child abuse material in Subdivision D.

Penalty: Imprisonment for 6 years.

(2) For the purposes of subsection (1), it is irrelevant whether the material transmitted:

(a) is in an unaltered form; or

(b) has been created, or altered in any way, using technology.

Note: Paragraph (b) includes images, videos or audio depicting a person that have been edited or entirely created using digital technology (including artificial intelligence), generating a realistic but false depiction of the person. Examples of such material are "deepfakes".

Exceptions

(3) Subsection (1) does not apply if:

(a) transmitting the material is necessary for, or of assistance in:

(i) enforcing a law of the Commonwealth, a State or a Territory; or

(ii) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or

(b) transmitting the material is for the purposes of proceedings in a court or tribunal; or

(c) transmitting the material is for a genuine medical or scientific purpose; or

(d) a reasonable person would consider transmitting the material to be acceptable, having regard to the following:

(i) the nature and content of the material;

(ii) the circumstances in which the material was transmitted;

(iii) the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted, or appearing to be depicted, in the material;

(iv) the degree to which the transmission of the material affects the privacy of the person depicted, or appearing to be depicted, in the material;

(v) the relationship between the person transmitting the material and the person depicted, or appearing to be depicted, in the material;

(vi) any other relevant matters.

Note: A defendant bears an evidential burden in relation to the matters in subsection (3). See subsection 13.3(3).

Interpretation

(4) In this section:

transmit includes make available, publish, distribute, advertise and promote.

(5) In this section, being reckless in relation to consent includes not giving any thought to whether or not the person is consenting.

474.17AA Aggravated offences involving transmission of sexual material without consent

Aggravated offence - transmission of sexual material without consent after certain civil penalty orders were made

(1) A person commits an offence against this subsection if:

(a) the person commits an offence (the underlying offence ) against subsection 474.17A(1); and

(b) before the commission of the underlying offence, 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to either or both of the following:

(i) contraventions of subsection 75(1) of the Online Safety Act 2021;

(ii) contraventions of section 91 of the Online Safety Act 2021 that relate to removal notices given under section 89 of that Act.

Penalty: Imprisonment for 7 years.

(2) There is no fault element for the physical element described in paragraph (1)(a) other than the fault elements (however described), if any, for the underlying offence.

(3) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (1)(a) if the person has a defence to the underlying offence.

(4) Absolute liability applies to paragraph (1)(b).

Aggravated offence - creation or alteration of sexual material transmitted without consent

(5) A person commits an offence against this subsection if:

(a) the person commits an offence (the underlying offence ) against subsection 474.17A(1); and

(b) the person was responsible for the creation or alteration of the material.

Penalty: Imprisonment for 7 years.

(6) There is no fault element for the physical element described in paragraph (5)(a) other than the fault elements (however described), if any, for the underlying offence.

(7) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (5)(a) if the person has a defence to the underlying offence.

474.17AB Double jeopardy etc. provisions - offences involving transmission of sexual material without consent

Double jeopardy

(1) A person who has been convicted or acquitted of an offence (the aggravated offence ) specified in column 1 of an item of the following table may not be convicted of an offence specified in column 2 of the item in relation to the conduct that constituted the aggravated offence.

(2) Subsection (1) does not prevent an alternative verdict under section 474.17B.

(3) A person who has been convicted or acquitted of an offence (the underlying offence ) against subsection 474.17A(1) may not be convicted of an offence against subsection 474.17AA(1) or (5) in relation to the conduct that constituted the underlying offence.

When conviction must be set aside

(4) If:

(a) a person has been convicted by a court of an offence against subsection 474.17AA(1) on the basis that 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to either or both of the following:

(i) contraventions of subsection 75(1) of the Online Safety Act 2021;

(ii) contraventions of section 91 of the Online Safety Act 2021 that relate to removal notices given under section 89 of that Act; and

(b) one or more of those civil penalty orders are set aside or reversed on appeal; and

(c) if the civil penalty orders covered by paragraph (b) of this subsection had never been made, the person could not have been convicted of the offence; and

(d) the person applies to the court for the conviction to be set aside;

the court must set aside the conviction.

(5) If:

(a) a person has been convicted by a court of an offence (the aggravated offence ) against subsection 474.17AA(1); and

(b) the court sets aside the conviction under subsection (4) of this section;

the setting aside of the conviction does not prevent proceedings from being instituted against the person for an offence against subsection 474.17A(1) or 474.17AA(5) in relation to the conduct that constituted the aggravated offence.