Subjects: National Continuous Checking Capability, Rapid Review, copyright and AI
SALLY SARA, HOST: South Australia is set to become the first state to connect to a national system which will monitor the criminal history of Australians who have a Working with Children Check. The criminal history tracking pilot comes more than a decade after the Royal Commission into Child Sexual Abuse called for such a system. Once fully operational, the system will provide continuous and near real-time monitoring of national changes to criminal history information on Working with Children Check holders. Michelle Rowland is the Federal Attorney-General and joins me now. Minister, welcome back to Breakfast.
MICHELLE ROWLAND, ATTORNEY-GENERAL: Good morning.
SARA: Why is it important for states and territories to connect to the National Continuous Checking Capability database?
ROWLAND: Well, this capability really gives effect to what we have had since August this year, which is every state and territory giving legislation in their jurisdictions to say if you’re banned from holding a Working with Children Check in one jurisdiction, you’re banned in all. And what this does is ensure that there is continuous, near real-time monitoring of changes in criminal history on those Working with Children Check holders. So, it means that the more states and territories that onboard to this system, the stronger the system is and the better opportunity there is to keep our children safe. Because we know that this has been an area, exactly as you say, which has been a recommendation of a Royal Commission. It is a complex area, but it’s one that we have been very focused on as a Standing Council of Attorneys-General, which I’m chairing today, to make sure that we bring this to fruition.
SARA: In a practical sense, what does near real-time really mean?
ROWLAND: It means that there will be essentially a library of offences and each state and territory will be able to plug in for a person who has a working with children check and be able to cross check whether or not that person has committed an offence in any jurisdiction in Australia.
SARA: You heard in the introduction that this is taking a long time, particularly after the recommendations of the Royal Commission into Child Sexual Abuse. This is more than a decade ago. Why has it taken so long for successive governments to get something moving?
ROWLAND: Well, I acknowledge that, but I also want to acknowledge the substantial progress that has been made, particularly over the last 18 months, with the states and territories working with the Commonwealth to get to the position that we’re in, where we’ve had legislation passed in each state and territory, we’ve had policy agreed in the states and territories and now we are on the technical implementation. I think the short answer is that it is complex, it is hard, it is costly, but that is no reason and I don’t cast aspersions on any former governments, Commonwealth or state and territory. But it’s one of the reasons why it has taken so long, but it needs to get done. There’s different IT systems that operate across multiple state departments. I’m the Attorney-General, but the Attorneys-General of some states and territories don’t have control of this information. There’s different IT systems, depending on what departments they are in. So, it has been complex. But I think the fact that the Commonwealth has a $37 million investment in this National Continuous Checking Capability, the fact that we will be discussing today the next steps in that, and I welcome South Australia’s participation in this, but my key message is we need to keep up the momentum. This has taken too long until now, but we have made substantial progress working together and that’s what Australians expect.
SARA: Does the federal government expect all remaining states and territories to be connected to the national database by the end of this year?
ROWLAND: We would like that to be the case. I think we need to be ambitious, but they will be discussions that we’ll have today. And I think the fact that we have made progress, particularly over the last 18 months, is because we have been ambitious and I thank my state and territory counterparts and I look forward to continuing that construction dialogue today.
SARA: So, when will the national database be fully operational?
ROWLAND: Well, we expect that state and territory agencies will onboard with police forces by 2027 and that it should be up and running 2028. But as I said, we are being ambitious. Like they are time frames that are not goals, they are timeframes that we want to beat. And my key message today is that we’ve achieved a lot so far. South Australia shows that this can be done, and I hope that their example will provide the momentum for other states and territories to get on board.
SARA: Australia is a relatively advanced nation. We’re still waiting for this national system to get up here in Australia. What about for people from overseas who are working with vulnerable people? What kind of guarantees can we have that they have been checked thoroughly for previous offences from countries where they don’t have a national system either?
ROWLAND: Well, again, this is a novel piece of architecture that is being developed and we’re also aiming to make sure that this goes across other systems within our government and that includes, for example, the NDIS. The National Disability Insurance Scheme Workers Screening Units are going to be able to use this in near real-time and I think this will provide an example, and it will end up being utilised by other government agencies. I know that Services Australia, for example, is interested in what we are doing and I think that what we can achieve is a really joined up set of IT infrastructure that can be utilised across governments and again, I acknowledge the time it has taken, but it will be something that is not only able to be used for Working with Children Checks, but across other areas of the Commonwealth.
SARA: You’re listening to Radio National Breakfast. My guest is the Federal Attorney-General, Michelle Rowland. Let’s talk about AI. Earlier this week, the government said it would investigate creating a new criminal offence for artificial intelligence companies that fail to take reasonable steps to prevent harmful conduct by their AI models. Is this a recognition that there’s currently a gap in the law?
ROWLAND: Well, the problem is that this has actually never been tested in an Australian court. So, it is an area where the application of the Criminal Code provisions are unclear. And here we’re looking at, for example, potentially those provisions around unauthorised access to data. And some of those provisions require knowledge or intention on the part of the responsible person to be able to point to an offence. So, it is a complex area of law. If the question is, you know, had these actions been undertaken by a human or had a human directed the AI agent, we would probably be in a position to point to an offence in our criminal laws. But here I think the Rapid Review has pointed to something really important, and that is that we need to be not only ready for future attacks and make sure that we’ve got that resilience in place, but also the right laws.
SARA: So, for what’s already occurred, and that is particularly the Medicare data portal breach. Will OpenAI be prosecuted for that?
ROWLAND: Well, we don’t have laws in place at the moment around that, but part of what the recommendations go to is…
SARA: Will the laws be retrospective?
ROWLAND: Well, we are not looking currently at whether retrospectivity applies, and there are good reasons for that. But this hasn’t been settled. I should make that point very clear. But also we need to look at what damages would have occurred in this environment. We need to look at whether there was the ability, for example, if we’re looking at a standalone failure to prevent offence, whether there was some failure to prevent. So, whilst it is always good practice not to have laws applying retrospectively, we’re looking at this in the context of the recommendations of the Rapid Review. But we’ve also already begun work in this area. My department, along with Home Affairs and the AFP, have been looking at options, including in the criminal law space, and we’ll continue to do that. When we come to a landing on that, again we will have to consult with the states and territories, as is required in cases of criminal laws of this nature. But again, I’m confident that we have a sufficiently robust criminal law system that will be able to deal with this.
SARA: Just finally staying with the challenges posed by AI development and potential changes to copyright laws. Is the status quo an option you’re willing to consider as some creatives are looking for?
ROWLAND: Well, look, I’ve seen the commentary and the first thing I want to say is that the work of Australian creatives is world class. This is absolutely vital to our culture. But it is a fact that the work of those creatives is being used without their consent or payment. And the Prime Minister made it very clear that this is an area where artists need to have ownership and control. And I would say that rightsholders at the moment have every right to be aggrieved by the status quo, where their works are being exploited by others for their own gain and they’re not receiving fair compensation. So, what I would say is that we recognise that there is a problem right now. We welcome the contributions that have been made by eminent commentators in this area, but we do need to look at solutions to make sure that our rightsholders continue to be paid. And I would say this, the first best option is, of course, that Australian rightsholders are able to strike commercial deals with tech companies and anyone else who wants to use their creative works. That is the way the copyright system works. But right now it is not working for Australian creatives and we are consulting on ways to make that better.
