Clifford Chance

Australian Government's AI Action Plan highlights opportunities offered by AI, leaving detailed consideration of risk mitigation for another day.

Artificial intelligence (AI) is steadily permeating every facet of daily life, from online shopping to the recruitment of employees and the provision of healthcare.

The evolving and increasingly prominent role of AI has recently been brought to the fore in Thaler v Commissioner of Patents [2021] FCA 879 – a decision of the Federal Court of Australia,  which made a world first finding that an AI system, namely DABUS, can be named as an inventor under Australia's patent legislation. We note that the Commissioner of Patents has since indicated that it will be appealing the Federal Court's decision.

Many countries across the world have formalised their commitment to AI through the adoption of national AI strategies and frameworks. The Australian Government has followed suit earlier this year with the release of Australia's AI Action Plan.

The Action Plan

The Action Plan, which was released following a period of consultation with industry and the wider community, outlines the Australian Government's vision to "establish Australia as a global leader in developing and adopting trusted, secure and responsible AI". 

The Action Plan introduces the following four focus areas together with specific policy measures to realise this vision.

Business

This focus area is concerned with developing and adopting AI to transform Australian businesses, increasing their productivity and competitiveness as well as creating jobs.  Key measures include:

• Establishing the National AI Centre and four AI and Digital Capability Centres to drive a national approach to AI and support the development and adoption of AI particularly across small and medium enterprises.
• Establishing the "Catalysing the AI Opportunity in our Regions" program to incentivise AI practitioners to  engage with regional businesses and develop AI solutions for regional challenges.
• Funding the "Cooperative Research Centres Projects" program to facilitate industry-led AI-focused research collaborations that contribute to the development of new products, services and technologies.  

People

This focus area is concerned with creating an environment to grow and attract world-class talent and expertise to Australian businesses. Key measures include:

• Establishing the "Next Generation AI Graduates" program to train diverse cohorts of AI students through targeted scholarships.
• Funding Australian Research Council projects, linkages and fellowships that involve AI.
• Establishing the Centre for Augmented Reasoning at the University of Adelaide to support Advanced Reasoning research and increase AI engagement in Australia.

Research

This focus area is concerned with harnessing Australia’s world-leading AI research capabilities and using cutting edge AI technologies to solve Australia’s national challenges. Key measures include:

• Establishing the "AI Solutions to Build a Strong Australia" program to develop AI-based solutions to national economic, health, social, infrastructure and environmental challenges by leveraging private expertise.
• Investing in the CSIRO’s Machine Learning and AI Future Science Platform to turn future challenges into opportunities through AI to improve Australia's prosperity and sustainability.
• Funding AI-focused projects under the Medical Research Future Fund.
• Investing in Defence AI to develop AI applications across the information and cyber, maritime, air, space and land domains.

Society

This focus area is concerned with making Australia a global leader in responsible and inclusive AI. Key measures include:

• Promoting the implementation of Australia’s AI Ethics Principles, which were released in 2019 to guide business and governments developing and implementing AI in Australia.
• Promoting Australia’s AI values internationally within international forums.
• Promoting the benefits and uses of AI through engagement with business and the Australian public.

While not a key measure, the Action Plan flags in respect of this focus area that consideration will be given to the recommendations set forth in the Australian Human Rights Commission's Final Report on Human Rights and Technology, which include among other things, the following recommendations:

• The appointment of an expert body to issue good practice guidance to the private sector in respect of AI-informed decision making.
• The introduction of legislation to require notification to individuals about the use of AI-informed decisions affecting them.
• The establishment of a statutory cause of action for serious invasion of privacy (in line with the Australian Competition and Consumer Commission's (ACCC) recommendation to establish a direct right of action for interferences with privacy, which the Australian Government has committed to engaging in further consultation about as part of its review of the Privacy Act 1988 (Cth) (Privacy Act) (as detailed further below).

The Action Plan also notes pre-existing legislative and regulatory developments relating to this focus area such as:

• The review of the Privacy Act announced  as part of the Australian Government's response to the ACCC's Digital Platforms Inquiry, which seeks to strengthen privacy protections for individuals.
• The release of the Data Availability and Transparency Bill 2020, which seeks to enable greater sharing of public sector data.

Next steps

The Action Plan highlights the need to harness the significant economic, social and environmental opportunities presented by AI alongside the need to mitigate the potential risks and challenges posed by AI. However, unlike its commitment to achieving the former, which is backed by a suite of new concrete measures, the Government's commitment to achieving the latter might be regarded – at least at this stage – to be mostly symbolic.

This becomes clear when consideration is given to the nature of the key measures that the Government has committed to achieving for each of the focus areas. Whereas the Government has committed to realising its vision for the first three focus areas – Business, People and Research – by way of specific, measurable  and time-bound measures (i.e. establishing or funding specific programs), the Government appears to have adopted a much "softer" approach to realising its vision for the fourth focus area – Society (i.e. merely promoting various principles and values).

It is widely recognised that AI poses a range of real risks and challenges such as its potential to severely infringe the privacy of individuals and produce unfair or discriminatory outcomes. A clear and actionable approach is paramount to effectively mitigate these, and other, risks and challenges posed by AI. In the absence of such an approach, the Action Plan's fourth focus area – Society – is likely to remain aspirational.