Australia's children's commissioner has queried a bill that could jail kids as young as 10 for sharing sexually explicit images, including AI-generated "deepfakes", without consent.
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The government bill, introduced by Attorney-General Mark Dreyfus last week, creates a new Commonwealth offence with a maximum penalty of seven years' jail.
Asked recently whether the bill could lead to children being incarcerated, Mr Dreyfus told the ABC: "Potentially yes, they could be charged but they would be dealt with as children are dealt with in the criminal law."
Children's Commissioner Anne Hollonds said this highlighted the urgency for the federal government to raise the age of criminal responsibility to "at least 14".
"Ten is incredibly young on a world scale now," Ms Hollonds said in an interview with The Canberra Times.
"Australia actually is really far behind in recognising that criminalising young children actually just creates more crime."
She said handing technology to children without regulating digital platforms was like "giving young kids the keys to a fast car".
"Children don't have the ability to really understand the consequences of their actions ... we haven't put the guardrails in yet."
![Attorney-General Mark Dreyfus has introduced a new bill to criminalise deepfakes. Picture by Sitthixay Ditthavong Attorney-General Mark Dreyfus has introduced a new bill to criminalise deepfakes. Picture by Sitthixay Ditthavong](/images/transform/v1/crop/frm/234480217/c3d2e3dd-da5b-4a0a-96d8-1486f44d49b5.jpg/r0_271_5300_3251_w1200_h678_fmax.jpg)
Ms Hollonds acknowledged the government's deepfake bill was intended to address real harm in the community and that having sexual images shared was "horrifying" for victims.
But she said the problem of minors sharing such images was "a classic example" of young people having access to technology without proper safeguards.
"It's actually on us, as the adults," she said. "We've allowed the regulation of the digital world, the online world to be so weak, that it allows kids to do things, or get involved in these negative actions, that have terrible consequences on others."
Youth sentencing 'a matter for courts', Attorney-General says
Mr Dreyfus said when pressed about the bill's potential to jail minors: "That's going to be a matter for courts but, by and large, children are not jailed in Australia."
"The police will obviously exercise discretion in what they investigate and how they apply these newly created offences," he told the ABC.
"But we've got here behaviour that affects women and girls who are the target of this kind of deeply offensive and harmful behaviour. We know that it can inflict deep and long-lasting harm on victims."
A teenage boy was arrested and then released on Tuesday after fake explicit images were allegedly circulated on social media using the likenesses of about 50 female students from a private school in regional Victoria.
The Criminal Code Amendment (Deepfake Sexual Material) Bill 2024 introduced by Mr Dreyfus applies when a victim is aged 18 or over. Sharing sexually explicit images of children is already an offence with a maximum jail term of 15 years.
Ms Hollonds said she had not been consulted on the new bill. Her office, which is part of the Australian Human Rights Commission, last November provided all departments with a Child Rights Impact Assessment tool to weigh news laws' impact on children's rights.
It is unclear whether the Attorney-General's Department used it.
'Extremely vulnerable' children in Australian jails: Greens
Greens spokesperson for Justice and Digital Rights David Shoebridge said it was "not credible for the Government to say that new criminal offences about online content creation and sharing will not see children end up in prison".
"If the Attorney-General thinks children are not jailed in Australia then he's clearly not paying attention to the hundreds of extremely vulnerable young people being locked up on his watch."
He said the government needed to "take on the power of platforms and algorithms" and that while expanding the law to cover AI-generated images made sense, police would struggle to enforce it.
Slow progress on a national approach to raising the age
The ACT and Victoria have committed to raising the age of criminal responsibility under state and territory criminal laws to 14.
Advocates have been pushing for this to happen across Australia for a decade and the Council of Attorneys-General, chaired by Mr Dreyfus, has been discussing it since 2018.
Officials asked for an update at Senate Estimates were unable to say if Mr Dreyfus supported raising the age for Commonwealth offences and the Attorney-General declined to comment further.