Paul Scarr (Queensland, Liberal Party, Shadow Assistant Minister for Multicultural Engagement) Share this | Hansard source

I rise to speak on the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024. Most of the points have been covered in the debate up to date by other speakers. I, too, sat on the inquiry and heard the absolutely appalling evidence. We heard about the explosion in this sort of activity, which is deeply, deeply concerning. I must say, one point which perhaps hasn't been touched upon thus far is the totally underwhelming response we got from some of the big tech companies. Senator Waters touched upon it. But I must say that I found their submissions completely underwhelming and, from my perspective, they demonstrated a lack of focus in combatting the issue. That is very, very concerning and I think that there should be some reflection on their part.

In relation to the process, I've made the point in this place on a number of occasions the importance of making sure that we hear from key stakeholders in a timely fashion. It was disappointing in this regard that the process was abbreviated such that the Law Council of Australia's submission wasn't received until after we had the public hearing. I would have thought, with legislation dealing with criminal offences of this nature, with terms of imprisonment attached, it would be important that we hear from the peak body representing the legal profession in this this country and consider their perspectives at a committee hearing as opposed to receiving the submission afterwards. I'll put on the record what the Law Council of Australia submitted:

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

And that's from the submission of the Law Council of Australia.

I note that this isn't the first time in this parliament that we received submissions on this committee from the Law Council of Australia decrying the fact that they were provided insufficient time to provide the benefit of their expertise. We've heard similar comments in relation to the Administrative Review Tribunal Bill 2023, the Migration Amendment (Removal and Other Measures) Bill 2024 and in the Identification Verification Services Bill 2023. So I would hope that the government can manage its legislative program in a somewhat more efficient way to ensure that important stakeholders like the Law Council of Australia actually have the opportunity to provide their expert perspective.

The second point I would like to make is in defence of my colleague Senator Cash. I listened to Senator Cash's speech. I didn't interpret anything Senator Cash said as 'watering down' the bill. Senator Cash raised a number of technical issues in relation to the bill, but certainly, as Senator Cash indicated, we're all on the same page in this space in protecting in particular women, girls, from this sort of behaviour. I think we're all in the same space, but there were some technical issues raised and it's our obligation to ventilate these issues in this, the house of review. We are a house of review. Again, I just want to quote from the Law Council of Australia's submission:

While we agree that the existing aggravated offences in the Criminal Code may not apply to deepfake material, for the reasons explained below we consider that this Committee should keep in mind the advantages of the framing of the existing primary offence in section 474.17, noting that this provision is likely to be engaged for such material.

In our view, there are certain features of the framing of the existing … offence in section 474.17 that promote certainty.

That's the Law Council of Australia saying that the existing offence, in certain aspects as it's currently framed, promotes certainty. So it is a concern if we are moving away from the features of the existing framing of the offence. The Law Council says:

These features should be considered by the Committee in considering improvements to the new offences contained in the Bill.

That's from the Law Council of Australia, so some of the characterisation of Senator Cash's position, and of the coalition's position, in this regard is somewhat unfair and perhaps should be reflected upon.

The last point I wish to touch on is in relation to the aggravated offences. One of the particular aggravated offences that hasn't been touched upon in this debate yet is the aggravated offence that applies where certain civil penalty orders have been made. The 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. We were informed by the eSafety Commissioner that there's hardly any prospect of anyone receiving three civil penalty offences. The concern with respect to this particular aggravated offence is that because there's little prospect of someone receiving three or more civil penalty orders, it means there's little or no prospect of the aggravated offence itself being triggered. That is of concern.

We sat in the inquiry and heard that put consistently by all of the witnesses who spoke to the issue before the committee. The response to that from the Attorney-General's Department was, 'Well, it means it's consistent with the other provisions elsewhere in the act.' I don't think that answers the question. If we're being told that there's an aggravated offence being proposed, and the evidence being provided by the eSafety Commissioner and others is that the specific act which triggers the application of the aggravated offence is never going to be triggered because people don't get, in particular, three or more civil penalty orders, then one must reflect upon whether or not we should be proceeding down that path.

The way that's been addressed in the majority report from the committee is to suggest that a statutory review be conducted into that particular aggravated offence. I don't think that we need a statutory review in relation to that particular aggravated offence, because the evidence was quite clear—in all likelihood it's never going to be triggered because that's just not the way the system works. I suspect we'll get to the end of the statutory review period and that's not going to change, nothing in that respect would change.

Given the concerns that have been raised by the Law Council of Australia with respect to the fact that, under the existing offence provisions, there's better promotion of certainty in some respects, what would be useful under the offence which is proposed to be inserted is that in itself presents a pretty strong argument, from my perspective, that there should be a statutory review of the operation of the bill in its entirety and related matters after two years of operation. The preparation of the terms of reference for that review should be informed by, amongst other things, the issues raised during the course of the inquiry we had. That constituted recommendation 3 of the additional comments I provided.

Having said that, this is absolutely a very important piece of legislation. This Senate must act to protect, in particular, women and children in our community who are the subject of this vile phenomena.