There has been recent amendments to Commonwealth criminal law offences which is worthy of note. It is said that the type of conduct sought to be addressed by the new offences is gender-based violence.

The Criminal Code Amendment (Deepfake Sexual Material) Act 2024 (Cth) (“the Act”) amends the Criminal Code Act 1995 (Cth) to create new offences where a person uses a carriage service to transmit sexual material which depicts (or appears to depict) another person (who is, or appears to be 18 years of age or over) when:

• the person knows the other person does not consent to the transmission; or
• the person is reckless as to whether the other person consents to the transmission.

The new offence will apply regardless of whether the material is unaltered or has been created or altered in any way using technology. This means the new offence could apply to a variety of circumstances where image-based abuse occurs. The new offences are based on a ‘consent’ model to better cover both artificial and real sexual material. There are exceptions for where the new offence will apply, including a broad exception where ‘a reasonable person would consider transmitting the material to be acceptable’ having regard to a number of factors. The maximum penalty for the simpliciter offence under s474.17A is 6 years imprisonment Pursuant to s4J of the Crimes Act 1914, it can be dealt with summarily (with consent of both parties) and the jurisdictional limit becomes 2 years imprisonment.

The Act also creates two aggravated offences which may apply where a person commits the underlying offence and additionally where:

• an offender has already been subject to 3 or more civil penalties orders relevant to the Online Safety Act 2021; or
• the offender was ‘responsible for the creation or alteration of the material’.

The maximum penalty for the aggravated offences under s474.17AA is 7 years imprisonment.  Pursuant to s4J of the Crimes Act 1914, it can be dealt with summarily (with consent of both parties) and the jurisdictional limit is also 2 years imprisonment.

The Act repeals two existing aggravated offences including where the person commits the underlying offence of using a carriage service in a way that is menacing, harassing or offensive (section 474.17) and the commission of this underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of private sexual material.

Of significance is s.474.17AB which provides for double jeopardy issues and s474.17B which provides for alternative verdict if the aggravated offence is not proven.

These new amending provisions commenced on 3 September 2024.  The Bill history and the Explanatory Memoranda (“the EM”) can be found here: ParlInfo – Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 (aph.gov.au). The EM helpfully provides a useful fault element analysis for each new offence.  

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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.

Roly O’Regan

Director