Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Hansard source

Digitally created and altered sexually explicit material that's shared without consent is a damaging and deeply distressing form of abuse. This insidious behaviour is degrading, humiliating and dehumanising for victims. Such acts are overwhelmingly targeted at women and girls and perpetuate harmful gender stereotypes and gender based violence. The Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 delivers on a commitment made by the Albanese government following the National Cabinet held in May to address gender based violence. This commitment recognises the urgent and collective need to respond to the growing challenges associated with artificially generated sexual material.

This bill will strengthen the criminal law to protect vulnerable people from online harm and abuse and hold perpetrators to account. It will create a new criminal offence that applies where a person transmits sexual material depicting an adult person, using a carriage service and the person knows the person depicted does not consent to the transmission of the material or is reckless as to whether or not the other person consents. The new offence will carry a maximum penalty of six years imprisonment.

The bill also introduces two new aggravated offences. The first aggravated offence applies where the person transmitting the material is also responsible for creating or altering the material. The second aggravated offence applies where a person has already been found liable for similar conduct as the civil standard under the Online Safety Act 2021 on three occasions. These aggravated offences carry a maximum penalty of seven years imprisonment to reflect the seriousness of this offending. The bill sets out specific defences to ensure these offences are targeted and proportionate.

Let me address some matters that have been raised in debate. The bill ensures criminal offences relating to non-consensual sharing of sexual material applies to both real and fake material, including deepfakes. The bill repeals previous offences in the Criminal Code dealing with non-consensual sharing of private sexual material. Those existing offences do not adequately cover the situation where deepfake sexual material is shared online without consent. This was the clear advice of the Commonwealth Director of Public Prosecutions to the Parliamentary Joint Committee on Law Enforcement in December 2023. The new criminal offences remedy this defect and create a strong framework to criminalise the non-consensual sharing of sexual material online. The new criminal offences are based on a consent model to better cover both artificial and real sexual material. Consent is not defined in the legislation and relies on its ordinary meaning, which is understood to be free and voluntary agreement. A person is taken to have consented if the person freely and voluntarily agrees to the sharing of the material. It would not apply where consent was obtained through fear, force or deception.

The new offences will apply to sexual material depicting adults, with child abuse material continuing to be dealt with comprehensively in a separate division of the Criminal Code which includes detailed offences and heavy penalties. The new offences do not change the meaning of recklessness, rather it clarifies that being reckless as to whether a person has consented includes:

… not giving any thought to whether or not the person is consenting.

That's consenting to the transmission. This is consistent with other offences in the Criminal Code which deal with non-consensual sexual activity—for example, the war crime of rape and sexual violence crimes. The spurious arguments raised by the opposition, particularly by the member for Bradfield, to the effect that these new criminal offences are not needed should be firmly rejected. The opposition should instead support stronger laws to counter deepfake sexually explicit material.

The bill will hold perpetrators to account for causing harm through the non-consensual sharing of deepfakes, and ensure that Australia's criminal offences keep pace with new technology. The Albanese government is committed to keeping Australians safe from technology facilitated abuse.

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