EFA Condemns Government’s “Opportunity-First” AI Plan: Our Safety Sacrificed as Ex Ante Laws Are Bumped

Electronic Frontiers Australia (EFA) condemned the Australian Government’s decision to abandon standalone, ex ante (proactive) AI legislation, warning the imminent National AI Plan prioritises “opportunity-first” adoption at the expense of citizen safety, fundamental digital rights and basic legal safeguards.

“The early signals are clear,” said EFA Chair John Pane.

“Many people are unaware that this Big Tech and Big Business friendly light touch approach to regulation was also used in the implementation of the National Privacy Principles made under the Federal Privacy Act back in 2000. Those “light touch” privacy principles were an abject failure due to poor design, regulatory capture and fear mongering from both Big Tech and Big Business interests, putting profit and productivity before people and digital rights. And now it looks like history is repeating itself with this National AI plan.”

Despite clear public, academic and civil society sentiment that we need strong AI laws, the government has confirmed that standalone AI laws are off the table. Instead, Australia will rely on a patchwork of existing, predominantly post-fact laws.

“The new AI Safety Institute is starting to look like a lame duck, particularly if it can’t prevent and mitigate against high risk and prohibited AI use cases which other countries have identified as important for human rights and subsequently enshrined in law.” – John Pane.

Why the government’s opportunity-first AI Plan is cooked

The decision to rely solely on adapting old laws to a managing the risks and potential harms of AI being deployed at speed and scale creates unacceptable regulatory uncertainty, especially by using post fact enforcement. EFA has the following concerns:

Post-fact enforcement responds after defined harms occur, an issue where significant AI harms can remain undetected and scale instantly and potentially irreversibly.
It assumes a level of regulatory alignment (across portfolios and regulators) which Australia has never demonstrated and is arguably not capable of without significant change.
The National AI plan increases legal fragmentation. AI obligations will sit across privacy, consumer protection, workplace, discrimination, safety frameworks, national security, copyright and sector specific laws, many of which will need updating. These systems were not designed to fit together.
Additional pressure is placed on already stretched regulators such as the OAIC who will bear the brunt of the enforcement burden.
The AI plan assumes benevolence, integrity and ethics on the part of Big Tech and Big Business – all of which have historically been in short supply from Tech Bros, Silicon Valley and the major platforms and developers.

“We need strong EU style ex ante AI laws for Australia, not a repeat of Australia’s disastrous “light touch” private sector privacy regime introduced in 2000. We need to also resist the significant geo-political pressure being brought to bear on Australia and others by the Trump administration, forcing sovereign nations to adopt US technology “or else”. – John Pane

We need to stand strong and pass an AI Act that:

Introduces mandatory risk assessments for AI applications in high-stakes domains like healthcare, law enforcement, and finance.
Defines high risk and prohibited use cases for exploiting vulnerabilities, inferring emotions, biometric categorization, subliminal manipulation etc.
Articulates clear accountability mechanisms for developers and deployers of AI technologies including fairness, transparency and explainability.
Is supported by strong privacy and other legal protections to safeguard individuals from intrusive surveillance based data extractions practices, protect copyright, prevent algorithmic manipulation and stem the flow of misinformation/disinformation.

In his closing comments EFA Chair, John Pane said, “The absence of a citizen and society-centric ex ante legal framework for AI development and deployment not only jeopardises individual rights but also further undermines the existing very low levels of public trust in AI technologies”.

“EFA again calls on the Australian Government to build a human rights based framework for AI regulation modelled on the European Union AI Act and to prioritise the privacy, safety and rights of its citizens over rubbery short-term economic gains, a large proportion of which will flow out of our country.”

Established in 1994, Electronic Frontiers Australia Inc. (EFA) is a not-for-profit national organisation dedicated to protecting the civil liberties and human rights of Australians in the digital environment. Donate to EFA’s mission here.