Shine’s Submission to the Department of Industry, Science and Resources - Campaign for AI Safety

Although the current laws provide some protections and legal recourse against harms caused by AI, Shine Lawyers has identified gaps within the present legal framework:

• Discrepancy between consumer and non-consumer protection laws on the use of AI.

• Lack of transparency within AI systems (black-boxes) prohibiting liability causation assessments. 

• Unfair contract terms within AI-user agreements that preclude access to justice. 

Shine Lawyers propose the following for legal reform:

In line with current EU proposals, all AI developers should have a presumed duty to its end-users and non-contracting third parties for the harms their products have caused:

• This is a rebuttable duty that applies only to significant harm. 

• This affords clarity to the general public (i.e. non-contracting third parties) on the legal recourse available to them in the event a software or AI product causes them harm..

• The liability should include the injury of pure mental harm (e.g. embarrassment, stress) and pure economic loss.

In line with recent changes to Australia’s Unfair Contract Terms (UCT) laws in the  Competition and Consumer Act 2010 and Australian Securities and Investments Commission Act 2001, AI-related laws should specifically state that any terms within user-agreements for AI-related software that exclude liability or prevent an individual’s right to participate in class actions are to be deemed UCT and voided.

This submission was authored by Atanaan Ilango and Dr Benjamin Koh of Shine's Class Actions practice.