Senate Legal and Constitutional Affairs Legislation Committee, , 3:40:55 to 4:05:52
Officials discuss the whole-of-government approach to AI regulation and address funding shortfalls for community legal centers in regional and remote areas.
Topics: Artificial intelligence, Legal aid, Infrastructure
Speakers: Senator David Shoebridge, Katherine Jones, Senator Don Farrell, Chris Collett, Esther Bogaart, Alaina Mitchell, Interjection, Tara Inverarity
>> Oh. Oh, thanks, Chair. Well, we might continue on on the copyright/ AI. You spoke about a proposal um in your answers to Senator Cash, a proposal in relation to AI, a proposal in relation to reform. >> Is there any current proposal before government?
>> I don't recall using the word proposal. The department has been um working on a range of policy advice to support government in its decision-m um I don't know if we characterize that as a proposal or not but
>> so is this come as from a request from the prime minister's office to provide advice? Are you generating it off your own bat? >> Um where's it come from? So, Senator, as
I um described earlier, there's um uh work that I would characterize as whole of government um engaging multiple departments uh uh in terms of providing polic policy advice uh and that that goes to a range of specific issues, but it's all subject to consideration by government.
>> But who's leading this whole of
department of prime minister and cabinet uh is leading at the bureaucracy level.
>> That that's the office that was announced a couple of months ago.
>> Yes.
>> So it's been coordinated through the prime minister's office
>> through the prime minister's department for us at the bureaucratic level and of course the prime minister's office has an equivalent coordinating role across ministerial offices but we
>> the office of AI who does that report
>> the office of AI is a a part of the department of prime minister and cabinet. Um, so it reports ultimately to the secretary department.
>> It reports through the secretary to the to the prime minister or does it report directly to the prime minister?
>> It's it's a part of the department and therefore it's accountable to the secretary in the same way as I'm a part of the department accountable to myself.
>> So the office of AI in the prime minister's department is coordinating this whole of government approach. >> Have they asked for specific reforms in relation to copyright?
>> Um certainly uh we've been engaging with them. Um we've been um advising them on policy um on positions that have been expressed to us by copyright stakeholders uh and there is ongoing policy work engaging with them.
>> Um Miss Inverarity um detailed some of the evidence that was given by I think that was anthropic but if not anthropic it was open AI one of those two entities.
>> Uh it was anthropic Microsoft and
um that it would be an impossible task for these massive AI um entities owned by US capital and US billionaires um to to train in Australia because of our copyright laws. Does the government accept that proposition put by those entities? Obviously noting their self-interest.
Um senator I think um uh obviously uh it's important to understand what their perspective is because it will influence their decision making. Um so uh I think um we uh we take into account a range of stakeholders and I think to have that um overall perspective the office of AI uh is best place to assist you uh in um the the overall conversations that have been
happening. Has your department reviewed the more than 250 pieces of strategic litigation been directed against those same entities in the United States that look to be collectively um greatly reducing their capacity to simply hoover up protected works using fair use provisions? Have you looked at the scale of the strategic litigation against those same entities to inform your view about whether or not their
certainly um um alive to the the range of um matters that are before the courts in the United States and we seek um updates as required from um uh our officials in the United States and so we are closely monitoring that. Mhm. And
what does that lead you to conclude in relation to their uh repeated use, wholesale industrial use of fair use provisions in the United States and and the the risk they face going forward in the United States to continue training in the way they do, ignorant deliberately um of copyright and other rights. What has that led you to conclude in terms of their risk to help inform you in the bonafideies of their approach to Australia?
>> So Senator, I would say a lot of that litigation is on foot. Um uh the there as you said there are multiple cases. I don't think at this stage that we would say that there's a clear picture coming through the US >> uh juristp prudence as to how that issue is going to be dealt with. Are are you
aware of any country in the world that has changed their copyright act to expressly allow the training uh otherwise copyright protected material in large language models um to facilitate that? Are you aware of any country on the planet that has made
those changes? I'll ask the colleagues to um uh to answer that because we have been keeping a close watch on what's happening internationally.
>> Then I'm not aware of a specific change in a specific country but of course
>> well that's what I'm asking about but
the question Senator is really important one different countries have different regimes. So there are issues with the Australian uh copyright regime that has different implications for this sort of work than say in the European Union or in the US. Um and these are it's absolutely fair to say very contemporary um challenges that all governments are
>> But but no other country in the world has passed laws as you're aware to reduce the rights of their own creatives to limit copyright protections in order to feed these US multi-billionaire techowned um entities. You're not aware of any other country in the world that's changed their laws, prejudiced their own creative industries rights to feed the profits of these US billionaires, are
>> Well, I can't agree with the characterization that you've placed at the end of the question, but what I was going to say is we will just take on notice to check the arrangements in Singapore, which we understand may have recently made some changes to its copyright laws. So, we'll come back to you on notice with that.
>> And as I said before, Senator, a whole range of company countries are grappling with these issues now. It's a very
Minister, do you accept this argument from these US tech platforms, the Meta, Open AI, Anthropic, Google, that their AI is so powerful that it could potentially cure cancer, but they're unable to distinguish copyright um material. So, so they've got this incredibly powerful tool that could, you know, take us to Mars, cure cancer, do these amazing things, but they're unable to distinguish in the course of training copyrighted material from non-copyrighted material. Do you accept
>> Um, what I accept, Senator Shoebridge, is that we shouldn't be afraid of this new technology. Um all of my life I have come across changes in technology with people advocating oh these are the consequences of this particular new technology and nine times out of 10 the fear that people have of that technology doesn't uh doesn't eventuate and it gen by and much. In my experience, most of this technology has has been good for society. It's a an advancement uh of it. Um I'm still thinking about AI and what these companies are proposing. Um and I haven't come personally to a concluded uh view about it. Um, I think I need more to to to do more reading on it to finally come to a position to make an assessment about whether on balance this new technology um should be feared the way you appear to be fearing it or whether
>> I just have a rational approach to uh technology that appears to already be escaping their sandboxes. attacking our websites, diving into our data, breaching our security. Um, I just think I have a rational approach to it, which is shared, I think, by millions of Australians. They they don't have a she'll be right attitude. They have a government should be putting in laws to protect this attitude.
>> Yeah. Yeah. Sometimes what you consider rational, Senator Shoebridge, um, other people don't um, consider rational.
>> I think protecting Australians from aggressive rational
not think that's a rational response to your rationality, but um all I'm saying is Senator um I'd like to know more about um the opportunities that AI presents um to benefit society >> before you know making a final judgment about uh the way forward. the government um does you know is obviously looking at this area of policy. Um we are trying to obviously get um advantages for Australia in terms of you know a range of aspects of AI. um you know we don't want to be left behind if you know this is the way in which the rest of the world is uh going um if there are opportunities for jobs and investment in this field we obviously want to want to look at that. Um but there are there are people in the government who are far more informed than me personally on this and um uh I'll certainly be following their their guidance on this. But as I say at a personal level um I'm sort of holding judgment on what I finally you know believe about the future of AI.
>> Thanks Minister. I might move now to the um document that I think I provided to This is the document that's been produced by a number of um uh barristers in New South Wales who are trying to come to terms with the incredibly complex and different rules in relation to the use of generative AI in courts and tribunals in New South Wales. And they discovered from their review that every court and every tribunal has a different and differently complicated way in which generative AI can be used in submissions and in court proceedings. Um and you'll see that this review included three federal um jurisdictions. It included the federal court, the the federal circuit of family court and the Fair Work Commission. Except you don't have responsibility for the Fair Work Commission. Um but it also included the New South Wales ENCAT and New South some jurisdictions completely prohibit generative AI in submissions. Some are more permissive. Some allow it for submissions but require an express um statement about its use. Um some don't require an express statement. Some allow it to generate submissions. Some allow it to check submissions. Some allow it for experts reports. Some don't allow it for experts reports. Some allow for experts reports with prior permission. Some allow for experts reports with prior permission and subject to conditions. Some allow for expert reports subject to different conditions. Um what I'm articulating to you is it's an unholy mess with every different court in in in the country, every different tribunal having different rules for generative AI. Have you undertaken this kind of review?
>> Um thanks Senator. Um I I we have placed um AI on the uh agenda at standing committee of attorneys general uh to um uh engage with the states and the territories uh around uh use of AI in the justice sector uh both from the perspective of um opportunities, best practice uh and understanding uh the nature of the usage. I I I note you've got we've got two layers of um independence that um come into play here. The independence of the courts who very zealously uh guard their um ability to make rules and um policy within their own jurisdiction. and then the states themselves uh and uh their view about um uh the way in which they will engage with the courts in their own jurisdictions. Uh so so um I think I recognize this is a a real issue the way it has evolved. uh and I do recognize that um there's um been different um approaches adopted in different jurisdictions. Uh I think um you know we engage quite regularly um with the law council of Australia and we've got a meeting coming up in the near future and I think we've got this on the agenda to have a conversation with them uh about that.
>> Well, I mean I'll give you just one example in this which is on confidential material. So material that's um subject to a confidentiality or that may have been served. It's subpoenaed material documents produced under a notice of produce. You know this can be a very large amount of confidential information provided during proceedings. The New South Wales Supreme Court has a three-stage test about that whether or not it can be fed into an AI which says it it's restricted material can only be uploaded on a closed platform. um used only for the proceedings and it can't be used to train. The Fair Work Commission just says, "Oh, you you better take some Um the um the the federal court says you can load it up into AI, but you must not breach confidentiality, privilege, or an implied undertaking. How people engage in that, I don't know. Um the Federal Circuit and Family Court applies something similar to the New South Wales Supreme Court test. Um how are litigants who are providing material through federal court proceedings? How are they going to be insured about the confidentiality of the material? If some courts allow it to be fed into an AI model, some tribunals allow it to be fed into an AI model and others don't. How how are we going how are you going to take steps to ensure we have faith in the integrity of the judicial system particularly the confidentiality?
Um, look, thank you for raising this. It is a very real and current challenge that we're grappling with. As the secretary said before, within the policy context, there's discussions under the standing council of attorneys general and a working group working with our justice uh department colleagues in the policy space. Um, I'd also draw to your attention that the courts are working together. uh the chief justice of the FCFCA uh last month convened a uh a meeting of I think it was all almost all of the intermediate and superior courts uh in the country to grapple with how the um the courts themselves are engaging with these sorts of issues. There are both opportunities and real risks for citizens in this uh there there are real opportunities around increasing access to justice um for vulnerable Australians and for middle Australia and as I think you're rightly pointing out there are real challenges that as well. There are a multitude of streams of work between both the justice departments uh and the courts uh to to deal with this.
>> Well, when you say justice departments, you mean state and territory?
>> Yes. So, the our sister departments and the states and territories council attorneys general and then between the courts themselves.
I think we should be really clear about the cost the the the the actual resource constraints that pretty much every state every tribunal has. um significant resource constraints um and and this is a substantial amount of work hard work which was going to require significant resourcing. Is there no intent for the Commonwealth to put in place a pool of funds and some cooperative model to allow the different tribunals around the country to get access to um the kind of scale of AI help, technical assistance, expert help to try and come up with some common otherwise we're going to continue to have this this this dog's breakfast of every different tribunal. or with their tiny resources trying to solve this wickedly hard problem. This is surely where you need to show some leadership, put some funds down, bring people together and try and get some common
Senator, I I I um I certainly think and that's why the attorney general put it on the SCAG agenda uh to create that um leadership at the national level and with the states and the territories. Um I think uh I I am alive to the level of the challenge uh in uh asking each of these courts to think about how they would uh amend their procedural directions and rules. Um uh but I I I agree with you that um opportunities to um encourage consistency uh in approach uh would be positive and we will continue to have that conversation under the opaces of the standing committee of attorneys general.
>> Yeah. the the key thing you haven't answered is funding. Overstretched, underresourced tribunals trying to come up with answers, each of them potentially engaging their own experts and none of them having the capacity to get um the scale and depth of support is not the way forward. The Commonwealth providing some funding, providing that deep pool of expertise and helping these tribunals come to a common position is so obviously but that's not on the table. Um, uh,
Senator, I've I've described the work that we're doing at the moment, which is through, uh, the standing committee of attorneys general and the working group that sits under that.
>> Can can I just >> with the courts work themselves? >> Can I quickly run through a couple of matters and maybe we'll try and be quick because we're only a bit behind time. Legal aid funding, Community Legal Centers Australia is running this Justice where we live program for regional and remote um, uh, legal services. Are you aware of that? Uh,
>> I'll just need to get uh,
Thank you Senator for the question. Yes, we are aware of that project.
>> Yeah. And they've asked for an additional 20.8 million um uh peranom to fund that access in remote and regional is um what's what's the government's response to that?
>> Uh thank you Senator. I would say that uh in terms of community legal centers Australia funding ask I think they were seeking a loading for >> um centers in regional and remote areas. Is that right?
>> Yeah, indeed. And it's because of the ex the extreme costs on travel uh the the costs on um ensuring that you know basic services are provided to the officers and also the costs on recruiting like you know you lose endless hours of your legal team doing the travel to provide the same service. and yes, they've got a series of loadings. Is that being considered?
>> Well, I guess I would say that during the NAP funding negotiations, those um factors including the additional costs associated with delivering services in regional and remote areas were contemplated in coming up with the allocations under the existing agreement.
>> But but they weren't implemented.
>> They were senators. So the funding distribution model uh which has been in place for many years now in the current the most recent negotiations we did ensure there was a loading both for tripleR areas and for delivery to first nations people in recognition of the additional costs um that are related to that. So those loadings were applied in the distribution of funding to states and territories. It's then a matter for states and territories to determine the funding that then goes to the each
center. So there is no guarantee that any of these community centers are getting the loading because it's mediated through states and territories.
>> Each state and territory was distributed funding with a range of factors taken into account including the tripr service delivery and um first nations delivery.
>> Have you followed through with the states and territories about whether these remote community legal services have actually had the funding contemplated in what was given to states
and territories? We do have some numbers around the impact that the funding is having for clients in um regional and remote areas. So, there's been an increase of almost 3,000 clients uh under the first six months of the National Access to Justice Partnership um compared to the last 6 months of the National Legal Assistance Partnership um their clients residing in out of regional and remote areas. So that accounts for approximately one in four clients assisted nationally are from those regional and remote areas.
>> Um because we're running short on time, could you provide on notice what if any checks have been taken with states and territories to see if the the amount that was negotiated for remote and regional communities has actually been passed through to the services on the ground.
>> Senator, I'll just I'll save taking it on notice. No checks and balances are done. The funding is provided to the states and territories. The distribution of the funding takes that to into into account. The states and territories tell us the funding amount for each center. Uh we do receive that information, but they're not required to report to us on anything in terms of how the funding is used for those particular ways the funding is distributed. We do get reporting on the types of clients and the priority clients, but it it isn't something that we could check. Um and so I'd rather not take it on notice. I'd
rather just I appreciate the answer. Um can you then provide on notice the funding for these remote and regional comm community um community legal services >> and if you have before and after NGAP um if you could provide that.
>> There's no loading arrangements but what we can provide you >> I'm not asking for loading >> amounts provided to each CLC in the country based on state and territory.
>> We're we're we're on common ground here because I heard your answer. So if you could provide the amount that's provided pre to those centers and the amount that has been provided post. So we can
>> sorry I just need to
>> pre pre the NJP
>> NPLAP funded services.
>> Yes. NLAP against
>> funded. Yeah.
>> NJP. Yes.
>> We can do that nationally.
>> Yes. For these remote and regional
>> uh class
>> to the extent you have the data.
>> Yes. We we'll do what we can. >> Yes.
>> Um thank you for that. And I'm sorry I bitched your name at the end.
>> Oh, apologies. I didn't even put my name tag up, but I did introduce myself earlier. Elena Mitchell, assistant