Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

At the outset of this contribution in the committee stage, there are just a number of technical issues that I will be canvassing and making comment on, but, again, I make it very clear that we fully support the intention of the bill and will not stand in the way of its passage. It has been our position since 2018, and it's consistent with the government's, that deepfakes and revenge porn should be dealt with in our criminal law.

However, when you look at the way that this particular bill has been drafted to address the issue, there are, potentially, a number of unintended consequences. Just to be clear, for the purposes of the debate: the offences in this bill are not just about deepfakes; they are also about so-called revenge porn. So it's important, in terms of the technical drafting of the bill, that we don't forget that the bill deals with not one issue but two issues: deepfakes and revenge porn.

If we look at the historical context of where we have been, what's in place and where we will be going to, the new offences in the bill replace the existing laws about revenge porn and deepfakes in section 474.17A of the Criminal Code—and they were, of course, introduced under the former coalition government in 2018. It's worth putting on the record the now Labor government's role in passing those provisions. It's a matter of public record that, as the shadow attorney-general at the time, Mr Dreyfus worked with the coalition to settle those provisions and ensure that they indeed did pass the parliament, and, in fact, in parliament, Tanya Plibersek expressly acknowledged Mr Dreyfus's role in settling and passing the current laws. So the Attorney-General worked with us when he was in opposition to pass the laws, and, indeed, the legal definition of 'private sexual material', which is the term that is now described as 'problematic'. That has now been put forward as the rationale for getting rid of the existing offences about deepfakes and revenge porn, even though this was originally drafted by Labor.

This is where the historical context of what we are looking at today does become so important. If you actually look at the legal definition of 'private sexual material', as far as we can identify, it was first developed by Mr Tim Watts and Ms Terri Butler in 2015, when they included it as a definition in a private member's bill which was later described as being the then Labor Party's policy. That's fine, as I said, because we obviously agreed with that at the time, and we worked with the then opposition to ensure the passing of what are now the current criminal offences. At that time, we had been quite clear, and it was always intended, that that particular term would capture both revenge porn and deepfakes. So that's the historical context for the current law and what it reflected.

To come forward to the present day: the offence provision in this bill is now drafted in a new way. It is now framed around consent. But one of the technical issues that has arisen is that, while the government is telling us it wants to move to an offence based on consent, it's actually repealing the definition of 'consent'.

In terms of the drafting decision itself, it is not consistent with expert evidence around best practice. In fact, this is what the New South Wales Law Reform Commission report on consent in relation to sexual offences in 2020 said. The commission reviewed changes in the law over time and said:

3.48 The law on sexual offences in NSW has undergone significant changes in the past 40 years. Consent is now defined in a way that reflects communicative principles.

They then went on to say:

5.14 We recommend that the law continue to define consent as requiring free and voluntary agreement—

Again, look at what this bill is doing. It's repealing the definition of consent. So, instead of keeping a clear definition based on communicative principles, we are, in fact, removing the definition of consent as 'free and voluntary agreement'. That then raises some immediate questions about what this means in practice and—this is the issue we canvassed in our second reading speeches—the resulting lack of clarity that will play out in court. For example, what does consent mean when you're dealing with sexual material involving people with disability or dementia? What does consent mean when you're dealing with people from non-English speaking backgrounds, both victims and perpetrators? Does the lack of clarity in the legislation now mean that courts will need to look at cultural barriers, linguistic barriers? And could consent be implied from the circumstances? We actually don't know, and this is the issue that we have in terms of the new bill. We actually don't know how this is going to play out in court because of the unusual drafting choice that the Attorney-General has made.

Where we end up, though, with the Attorney-General's choice is this: the design of the offence means that the prosecution will need to prove the element relating to consent for each prosecution, and again this raises questions, particularly about how it would play out in revenge porn cases, because all too often one of the issues we see with revenge porn is that victims do consent to the sharing of some material but only for very limited purposes with a particular person. The perpetrator then violates that trust by sharing the material in ways that the victim never intended. You need to prove the consent issue to secure the prosecution. And, as I said, one of the big issues—and we canvassed this in our second reading speeches—is it's not hard to imagine, based on the drafting by the Attorney-General, the consent issue now being a contested point in a trial. What does that then look like in the practical reality? This bill will go through; the law will change, so what will the then practical reality actually look like? Well, it will mean a greater likelihood of needing to lead evidence about consent and, in turn—and, again, this was one of the issues we raised in our second reading speeches—more cross-examination about exactly what things the victim did or did not consent to. You don't need to be an expert to understand how confronting and intrusive this might be for victims, given we have a current law that does not enliven these circumstances. As a parliament, we should be cautious before going down that pathway.

Minister, one of the questions that we continue to ask in relation to the drafting of the bill and, in particular, in terms of the context of the amendment on sheet 2659 that the coalition will be moving but also in terms of comments that have previously been made—I read from the New South Wales Law Reform Commission report on consent in relation to sexual offences in 2020—is: why is the government repealing the definition of consent?