Australia could become the first country to prosecute AI companies for failing to take reasonable steps to prevent harmful conduct by their models.

The federal government has announced it would consider a new criminal offence for tech companies over AI harm and an AI safety watchdog empowered to issue significant fines, as part of its response to September’s OpenAI Medicare statistics hack.

“The law needs to get ahead of, and in some cases make sure that it catches up with, what is a very fast-changing world,” Prime Minister Anthony Albanese told reporters yesterday.

AI companies Anthropic, Google and Meta, which were not given a substantial forewarning of the government’s response, did not respond to requests for comment.

An OpenAI spokesperson told the ABC that the company was reviewing the government’s proposals.

If Albo gets Whitlamed over this

When Mr Albanese disclosed the Medicare hack in September, he said the government would seek urgent advice on whether any offence had occurred and whether the incident should be referred to the Australian Federal Police (AFP).

Yesterday, he did not answer questions about whether he believed OpenAI had committed a crime.

Mr Albanese said the government had accepted all the recommendations of the review into the incident. One of those was to consider “options to reform the criminal law to improve AI safety”.

An option to be considered is the creation of a “failure to prevent” offence for AI companies behind models that engage in harmful conduct and do not take reasonable steps to prevent the harm.

The other was to consider criminal penalties for egregious breaches of AI safety standards.

The Albanese government has signposted its desire to lead the world on regulating AI, with the prime minister describing it as a “first mover in this space”.

While other countries have pursued distinct criminal offences for AI harm, one centring on a failure to take reasonable steps to prevent harm would be the first of its kind at a national level.

Italy recently introduced a criminal offence for high-risk AI uses that do not have required technical safeguards or human oversight where a failure would be a serious threat to people or national security.

No company or individual has been prosecuted under the law to date.

It remains unclear whether Australia’s OpenAI incident would reach the threshold of harmful conduct, but Mr Albanese yesterday described it as “minor in terms of direct implications”.