Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to 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?

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

This bill does not remove the concept of consent and its application to the new offences. It simply builds consent into the text of the offence. While the bill does not define consent, it relies on the ordinary meaning, which is generally understood as free and/or voluntary decision or agreement, and this is clearly stated in the explanatory material for the bill. The previous definition was relevant to determining whether material was offensive. The elements of the new offence do not require the material to be offensive, so the previous definition is obsolete.

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

I understand what you've just said. In fact, I think I read out evidence similar to that. That wasn't exactly the issue. I want to understand the rationale for removing the definition of 'consent', given that there is currently a definition and given the concerns that have been raised particularly by legal experts. But, more than that, what now will actually occur in terms of needing to prove the consent issue to secure prosecution? Consent is likely now to become a contested issue at trial, which then means greater likelihood of needing to lead evidence about consent. Therefore, the natural progression of that becomes more cross-examination of the victims and in particular about what a victim did or didn't consent to, which obviously means more pressure on the victims. That means they're now in court and are having to answer questions on this. So the question is not so much about what you're doing. I understand what you're doing. It is about why you're removing the definition.

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

As I said in my previous answer, the previous definition of 'consent' was relevant under the previous law to determining whether material was offensive or not, but the elements of the new offence do not require the material to be 'offensive' and so that previous definition is obsolete. The definition of 'consent' applied to the requirement for material to be offensive, and that requirement doesn't exist anymore. Therefore we don't need the definition. Having said that, as I said in my previous answer, it would be expected that the court would rely on the ordinary meaning of the term 'consent', and I explained what that is.

You did just raise the point about cross-examination, Senator Cash, so I thought I might point out here that the new offence requires the person alleged to have committed the offence to either know that the victim does not consent or be reckless as to the lack of consent. Whether a victim is involved in a prosecution to give evidence will be determined on a case-by-case consideration, based on the individual circumstances and admissible evidence. It should also be noted that Commonwealth criminal offences are typically tried in state courts, which will apply state and territory procedural and evidence laws. Many states have specific frameworks for the evidence of special witnesses, including alleged victims of sexual offences.

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

The issue that arises, though, is that, in the absence of a clear definition—which we know is being removed—there is now room to argue what 'consent' may or may not mean in the context of the trial. So what I'm trying to explore is how it will play out in a prosecution under this law. I would argue that you'd need the definition of 'consent' in the current law to be replicated in this bill because you've made consent an express part of the offence but you've removed 'consent' by way of a definition. The issue that has been raised with us in particular by victims is that the move to the new laws will create more room for cross-examination to occur, which is obviously what they don't want. That's the issue I have in terms of how it plays out in the court. Our amendment clearly mitigates that, but are there any ways you can mitigate the potential exposure for victims? It's the victims who are raising this with us. They don't want to be cross-examined on consent in the court.

Murray Watt (Queensland, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

As I said in my first answer, the intention would be that courts would rely on the ordinary meaning of the term 'consent', and that is generally understood as 'free and/or voluntary decision or agreement'. I remind Senator Cash that this is set out in the explanatory material for the bill. The point about cross-examination is valid, and, as I said in my previous answer, there are frameworks that exist at state and territory level to deal with the evidence of alleged victims of sexual offences.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to 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?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

With regard to the amendment, the government is not supporting the amendment. The bill repeals existing offences relating to private sexual material and creates a new offence that applies where a person transmits sexual material depicting an adult person using a carriage service and the person knows that the person depicted does not consent to the transmission of the material or is reckless as to whether the other person consents.

The proposed amendments take a completely different approach and seek to reinsert the more complex concept of 'reasonable expectation of privacy' back into the provisions. This is not what was considered or recommended by the inquiry of the Senate Legal and Constitutional Affairs Legislation Committee on the bill. The advice of the CDPP is that there may be no reasonable expectation of privacy in an image that has been digitally created or altered. The proposed amendment would not resolve this issue as it does not engage with the question of whether there is a reasonable expectation of privacy in, for example, images or videos that are already publicly available. I note that the Law Council of Australia, in their written submission, also agreed with the Commonwealth Director of Public Prosecutions that existing offences may not adequately cover the situation where deepfake sexual material is shared online without consent.

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

In terms of the government's response, again, we're all seeking the same outcome. Our biggest concern is unintended consequences. The unintended consequences won't be known, unfortunately, until the law changes. When someone seeks to bring a prosecution and the victim has to be cross-examined or, alternatively, says, 'This is all too much; I'm reluctant to be cross-examined,' it is then we'll know whether or not the unintended consequences are indeed playing out.

To clarify: our amendment is a simple way of addressing the issue. It overcomes the issues that have been raised, in particular those raised by the victims and by those in the legal fraternity. All it would do is put us exactly where we all want to end up—that is, it would clarify the issue. The existing aggravated offence applies to deepfakes, as I said, as it was always intended to do.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I've already said we're going to oppose the amendment.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The question before the committee is that the opposition amendments on sheet 2659 be agreed to.

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

I move the opposition amendment on sheet 2750:

(1) Schedule 1, item 6, page 8 (after line 25), after section 474.17B, insert:

474.17C Review of amendments made by the Criminal Code Amendment (Deepfake Sexual Material) Act 2024

(1) After the end of the 2-year period beginning at the commencement of this section, the Minister must cause to be conducted a review of the operation of sections 474.17A, 474.17AA, 474.17AB and 474.17B.

Report

(2) A report of the review must be given to the Minister within 3 months after the end of the 2-year period mentioned in subsection (1).

(3) The Minister must cause copies of a report under subsection (2) to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

This is a straightforward review provision that requires us to come back to the issue in two years.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The government will not be supporting this amendment.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The question before the committee is that the amendments on sheet 2750 as moved by Senator Cash be agreed to.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

At the request of Senator Thorpe, I move her amendment on sheet 2763:

(1) Schedule 1, item 5, page 5 (after line 12), after subsection 474.17A(3), insert:

(3A) Subsection (1) does not apply if the first person is not 14 years of age or older.

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

This amendment is in line with the Greens' long-held position of raising the age of criminal responsibility to 14. I note that Greens in state parliaments right around the country have been pushing for this change, as have many organisations. In my home state of Queensland, politicians are sending children of primary school age to be locked away in prison, and, despite the efforts of our Greens MPs in Queensland to stop this, last year we saw the Queensland government suspend the Human Rights Act so that children could be held in adult police watch houses—children as young as 10 years old. The purpose of the Queensland Human Rights Act is to protect children from harm, yet it was suspended.

Leaving aside that blatant disregard for democracy and human rights, both adult and children's prisons have repeatedly been shown to be unsafe for young people. They increase the likelihood of reoffending, and they impose torture-like conditions. First Nations children are especially targeted and are grossly overrepresented in child prisons. Closing child prisons is a key measure towards closing the gap. That's why the Greens are moving this amendment on sheet 2763, and we urge everyone in the chamber to support this amendment. I note that the federal government should in fact use its power to incentivise all state jurisdictions to raise the age of criminal responsibility for both this and all other offences, because kids don't belong in prison.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thank you, Senator Waters, for that contribution. The government will be opposing the amendments by Senator Thorpe moved by Senator Waters. The new criminal offences are intended to criminalise the sharing of sexualised deep fake images without consent. The application of Commonwealth criminal law to those who meet the minimum age of criminal responsibility is not a new concept. There are a range of safeguards in place to ensure any decision to prosecute a juvenile is in the public interest, and relevant considerations are taken into account, such as the welfare of those involved. In light of this, the government does not support the amendments proposed by Senator Thorpe and moved by Senator Waters.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I rise to join with my colleague Senator Waters to support this amendment. When this legislation was first presented to parliament, the federal Attorney-General was queried about it by ABC journalist Raf Epstein. Concerns were raised with the Attorney-General that the law would likely see kids locked up and put in jail, to which the Attorney-General replied, 'Potentially, yes,' and then sought to suggest that there wasn't an issue because, 'Children are treated differently to adults in the justice system.' He was pressed on it in the interview, and the Attorney said, 'It's going to be a matter for courts, but, by and large, children are not jailed in Australia.' He then said that police would obviously exercise discretion.

The Attorney-General is living in a different Australia to the one that we witness, that First Nations kids witness and that young kids from poor communities witness. When the Attorney-General says, 'By and large, children are not jailed in Australia,' perhaps he hasn't been reading the data. Perhaps he hasn't been talking to state and territory jurisdictions. Perhaps he hasn't even been looking at the Australian Institute of Health and Welfare, which, in its report into youth justice in Australia in 2022-23, found that on average during that year, there were 828 young people in jail aged between 10 and 17. I ask: is the Attorney-General right where he says, 'By and large, children are not jailed in Australia'?

When you look at the number of kids washing in and out of jail, that same report from the Australian Institute of Health and Welfare said that over the 2022-23 year—the last year we have full data for—some 4,605 children spent time in jail in Australia. On an average day, there were 42 kids aged between 10 and 13 in jails in this country. Over the course of 2022-23, 600 different kids aged between 10 and 13 went to jail. I say again: the Attorney-General, when he says, 'By and large, children are not jailed in this country', seems to be living in a very different country—perhaps a more privileged country, where you don't talk to First Nations communities and families and where you don't talk to kids and families that come from regional parts of the states or some of the areas in our cities with poorer socioeconomic indicators. Perhaps in the Attorney-General's country—the one he and the people he talks to inhabit—kids don't go to jail. But in this actual country they do—this country where, if we were to go and look at the jails in the Northern Territory right now, there'd be a bunch of kids in those two detention centres, and every single one of them would be First Nations.

Or we could go to WA and look at the torture-like conditions in which kids are held in WA prisons. The Supreme Court has repeatedly called them out and said that they are torture-like conditions and has demanded the closing of those brutal child prisons. But the state government has done nothing and the federal Attorney-General has done nothing because the federal Attorney-General, it turns out, thinks that, by and large, kids aren't put in jail in Australia.

And we could have a look at the cruel institution in Tasmania which has been the subject of a royal commission. The royal commission found that girls as young as 13 were being put into that children's jail and the girls, when they turned up at the jail at age 13, were put on the pill so that they didn't become pregnant because the authorities knew about the extent of sexual abuse and assault of girls in that jail. That's a child's jail in this country—the same country where the Attorney-General says, by and large, kids aren't being put in jail.

When the Commonwealth goes to put yet another criminal offence on the statute books, one involving social media and the sharing of social media images, we say, 'Don't put kids aged 10, 11, 12 and 13 into jail for this,' because we know what will happen. We know they will be abused. If they go to a jail in WA, it's certain they'll be abused. They'll be in torture-like conditions. They'll be put in a watch house in Queensland. Every kid that gets jailed in the Northern Territory under this is almost certain to be a First Nations kid. And that cruel institution in Tasmania, the one the royal commission pointed out, is still operating.

I support the amendment and I'd urge everybody in this chamber, when the Attorney-General says things like this, that by and large kids don't get jailed in this country, to just pretend it's not a problem, check it. Test it. Talk to people in your states. Talk to families who expect their kids to get stopped and searched and potentially jailed just for the crime of being black in a public place in this country. Don't just rubberstamp this stuff and think it doesn't matter, that kids will somehow be protected by the rhetoric of the Attorney, because they won't.

Steph Hodgins-May (Victoria, Australian Greens) Share this | Link to this | Hansard source

I rise to support the positions put by my colleagues Senator Waters and Senator Shoebridge. Right now 10-year-old kids across the country are being put in prisons. This is a national disgrace. The Greens, both federal and state, have been pushing to raise the age of criminal responsibility, and we welcome Senator Thorpe's amendment to the Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 to raise the age of criminal responsibility to 14.

In my home state of Victoria, the Labor government recently backflipped on raising the age of criminal responsibility to 14 and caved to right-wing pressure instead of listening to First Nations communities and expert advice. This decision is a complete betrayal to First Nations communities and the Victorian government have ignored the evidence that tells us that we should be investing in children's futures and this is ultimately what leads to more community safety.

This decision will put more Victorian kids, especially First Nation kids, in prison. Breaking this promise is completely heartless and a total betrayal to First Nations communities, leaders and experts who have been telling us for years what needs to happen to keep communities safe and keep kids out of prison. We know that locking up kids isn't what's best for them and it doesn't lead to community safety. In fact, it's quite the opposite. It's deeply disappointing, although perhaps not surprising, that the Labor government isn't prepared to accept this amendment to raise the age in this legislation. Labor would do well to follow countries that have actually listened to the evidence and improved community safety, raised the age and invested in programs to keep kids out of prison.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks for those contributions. There are a range of safeguards in place to ensure that any decision to prosecute a juvenile is in the public interest and relevant considerations are taken into account, such as the welfare of those involved. The government will be opposing this amendment.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that Senator Thrope's amendment (1) on sheet 2763 be agreed to.