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

The concerns have been raised. I have articulated them. They are on the Hansard record. I know the Attorney-General indicated the government will not support the amendments put forward by the coalition, but, given the issues with consent, the fact it is the victims that have been through this before who have been raising it and the fact that it is acknowledged by the government that there now could be an impact on cross-examination—and we don't know what that is going to be but you removed the definition—it does open up the door in terms of victims being cross-examined publicly about what they did or didn't consent to.

Before we get to the amendment, I would just ask the government to again consider its support for our amendment on sheet 2750, which is merely a review to understand: if it is working, that is great; but if it is not and it is having a detrimental impact on people who now find themselves in a witness box answering very difficult questions about what they did or didn't consent to, if you could consider whether or not that is something you would be minded to support.

In the committee inquiry into this bill, one of the issues that again has been raised is that it was truncated. In fact, the Law Council itself was not heard from, so I just want to put on the Hansard record part of the Law Council's written submission. It states:

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.

That is a quote from the Law Council's written submission. Certainly, the points that we have raised in our second reading speeches, and as I previously discussed with Minister Watt, there are some very unusual drafting choices in this bill. You can make unusual drafting choices. The problem is when you don't explain the rationale for the unusual choices. But what is worse is, in implementing the unusual drafting choice—and, as I said, in this case, consent is now an element of the offence; however, confusingly, the government is then repealing the definition of 'consent'—the flow-on consequence for that—I don't know if the Australian Greens have also looked at this—is now the exposure of, probably, women to cross-examination in a court, which is not something they necessarily want to be cross-examined on.

I would have thought the Law Council of all people, you would want to hear from, given their expertise in drafting legislation and providing comment on it That quote by the Law Council should ring alarm bells. We have unusual drafting choices in this bill which, if you haven't fully considered the impact of an unusual drafting choice, mean potential unintended consequences. I am really concerned that it was a truncated hearing and that bodies like the Law Council were not heard from yet, in written submissions, they raise some critical concerns. For example, they go on to say:

While we agree that the existing aggravated offences in the Criminal Code may—

I pause to emphasise '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 primary offence in section 474.17 that promote certainty. These features should be considered by the Committee in considering improvements to the new offences contained in the Bill.

Where does this actually leave us in terms of the unusual drafting choices in the legislation? As I said, the legislation will go through this chamber. It's the unintended consequences and, in particular, the impact on victims that we are trying to understand. The Law Council itself has said that this bill has unusual drafting choices, which we know, because of the truncated committee inquiry, and have not been properly considered. We also know that the Law Council has emphasised the advantages of the current legislation. We also know, or acknowledge, that they've expressed a concern that, in some cases, the existing aggravated offences may not apply to deepfakes, albeit this view hasn't been tested in a court or even fully considered.

But, importantly, there is actually a way to address the intended result of this bill—and, as I said, we're all here on the same page in terms of the intent of the bill—but, at the same time, avoid the risks of unusual drafting choices and preserve the advantages of the current offence. In that respect, I now move opposition amendment (1) on sheet 2659:

(1) Schedule 1, page 3 (line 1) to page 9 (line 5), omit Schedule 1, substitute:

Schedule 1 — Amendments

Criminal Code Act 1995

1 Section 473.1 of the Criminal Code (at the end of the definition of material )

Add:

Note: See also section 473.6 (which deals with material that has been created or altered using digital technology).

2 Section 473.1 of the Criminal Code (definition of private sexual material ) (note)

Omit "Note", substitute "Note 1".

3 Section 473.1 of the Criminal Code (at the end of the definition of private sexual material )

Add:

Note 2: See also section 473.6 (which deals with material that has been created or altered using digital technology).

4 At the end of Division 473.1 of Part 10.6 of the Criminal Code

Add:

473.6 Material created or altered using digital technology

(1) To avoid doubt, the definition of material in section 473.1 includes material that has been created, or altered in any way, using technology.

Note: This 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".

(2) For the purposes of the definition of private sexual material in section 473.1, in deciding whether a depiction covered by paragraph (a) or (b) of that definition is in circumstances that reasonable persons would regard as giving rise to an expectation of privacy, the following matters are irrelevant:

(a) whether the material mentioned in that paragraph:

(i) is in an unaltered form; or

(ii) has been created, or altered in any way, using technology;

(b) if the material mentioned in that paragraph has been created, or altered in any way, using technology—whether the person depicted in that material authorised, or was otherwise involved in, the creation or alteration of that material.

Note: For example, material depicting a person's (the victim's) face is publicly available. Another person uses technology to alter other material (the altered material) by superimposing the victim's face onto the altered material, such that the altered material appears to show the victim engaging in sexual activity. This depiction of the victim in the altered material may be in circumstances that reasonable persons would regard as giving rise to an expectation of privacy.

5 Application of amendments

The amendments made by this Schedule apply in relation to material that is transmitted, made available, published, distributed, advertised or promoted after the commencement of this Schedule, whether the material was created or altered before, on or after that commencement.

[material created or altered using technology]

By way of explanation, this is an amendment that respects the intent of the bill. As I said, we all agree with the intent of this and what the government is trying to do. It's also an important amendment that aligns with coalition policy since 2018 that deepfakes should be covered in our criminal laws. There's no disagreement on that. We, obviously, know and understand the impacts of deepfakes, and, as the public record makes clear, the intention behind the existing law is to cover revenge porn and deepfakes.

I'm offering in terms of the amendment—I understand it won't be supported, but by way of explanation—a way forward that avoids the drafting problems, risks and unintended consequences associated with the government's unusual drafting choices in this bill. It is an amendment that means simply clarifying that the existing aggravated offence—that means the definition of consent remains; we don't have the issues arising in terms of cross-examination—applies to deepfakes, as it was always intended to. This is an approach that preserves the advantages the Law Council spoke about but, as I said, also addresses the potential concerns that have been raised in relation to the Attorney-General's unusual drafting choices. It preserves the definition of consent but reduces the risk that a prosecution will fall over—this is always a risk when you're actually prosecuting something and you now need to prove the consent, because consent is an element of the offence—because a victim is reluctant to be cross-examined in a court. It is a better way to arrive at the destination that the government is aiming for. As I said, we get to the same destination. We would argue it is a better way to do it, and it addresses the unusual drafting choices but also the unintended consequences in terms of the risks that prosecutions will fall over because a victim is reluctant to be cross-examined in court.

In the event that this amendment fails—and the government has indicated it will not be supporting the amendment—as I said, I will then move the amendment on sheet 2750. Again, why would I do this? It's because of the issues that have been raised, particularly in relation to the removal of the definition of consent, to the impact that this could potentially now have on a prosecution, to the fact that you will be seeing victims cross-examined in court and to the fact that there will be victims that say, 'I actually can't do this; I'm reluctant to be cross-examined,' so you'll have a prosecution that now falls over. That amendment is a straightforward review provision that requires us to come back to the issue in two years. It's a sensible approach that means we can check that the offence is doing—as I said, we're all on the same page here—what is intended, but, if necessary, we would be able to adjust it.

Minister, the questions I have for you are: What are the advantages of the current legislation that the Law Council is talking about? Why is the government removing them?