Janet Rice (Victoria, Australian Greens) Share this | Hansard source

This bill, the Agriculture Legislation Amendment (Streamlining Administration) Bill, amends the Biosecurity Act 2015 and the Imported Food Control Act 1992 to enable computer programs to make decisions and exercise certain powers under those acts. On first inspection, this is not problematic. We Greens, of course, support the use of technology to improve government administration and make it more efficient, when it is done well, particularly if it will lead to genuine improvements in biosecurity.

But of course the devil is in the detail. This is something that the Scrutiny of Bills Committee has commented on. The committee noted in its bills digest:

… administrative law typically requires decision makers to engage in an active intellectual process in respect of the decisions they are required or empowered to make. A failure to engage in such a process—for example, where decisions are made by a computer rather than by a person—may lead to legal error. In addition, there are risks that the use of an automated decision-making process may operate as a fetter on discretionary power, by inflexibly applying predetermined criteria to decisions that should be made on the merits of the individual case.

We all know where these automated decision-making processes have come a cropper with this government over recent years. It's the whole robodebt scandal. There are potential concerns with using these automated decision-making processes. They need to be used very carefully indeed. The Scrutiny of Bills Committee also noted concerns about whether provisions in the bill will limit or exclude administrative law requirements which condition the formation of a state of mind—for example, the flexibility rule regarding policy or the requirements of legal reasonableness. A central concern here is how the operation of proposed section 541A(3) will impact requirements of administrative law such as the flexibility rule, or requirements of legal reasonableness that are contingent on the formation of a state of mind.

This wasn't the only concern that the Scrutiny of Bills Committee raised. In particular, they also were concerned about the types of decisions that can be made by computer programs and that they would be determined via a legislative instrument rather than the primary legislation. Again, its Scrutiny digest 1 of 2020 states:

The committee's longstanding scrutiny view is that significant matters, such as the decisions suitable for computerised decision-making, should be included in the primary legislation unless a sound justification is provided.

This may all sound very arcane, but it goes to actually having good decision-making and good transparency in that decision-making. The Scrutiny of Bills Committee, while it noted the minister's explanation, made clear that it 'does not generally consider administrative flexibility to be a sufficient justification for including significant matters in delegated legislation'.

Sadly, this pattern of avoiding scrutiny via delegated legislation is all too common from this coalition government. In a recent piece, journalist Karen Middleton summarises that:

The federal government is allocating billions of dollars in grants and making significant policy changes in a way that is likely unlawful, legal experts warn, using a mechanism that bypasses parliament and obscures decisions from public view.

One of Australia's most eminent constitutional experts, University of Sydney law professor Anne Twomey, said:

… the legal authority for governing by regulation is increasingly flimsy, in most cases – especially when allocating public money.

Why does all this matter? It matters because when we have a government that is trying to hide its actions from scrutiny, when it refuses to be transparent, then it is chipping away at our democracy.

Karen Middleton cites a number of legal experts highlighting how delegated legislation has been slowly reducing transparency, and that in turn is slowly reducing of ability of citizens to know what their government is doing and it is undermining their trust.

We've spoken earlier today, and over many weeks, about the importance of scrutiny by the Senate and transparency in supporting our democracy. The coalition is still trying to cover up the Gaetjens report of the sports rorts. We are still going to continue to work through the select committee to hold them accountable. These things are connected. Accountability and transparency across all aspects of government are critically important and we need to get it right across all aspects of government, not to just pick and choose where it's convenient for things to be transparent.

The main response from the coalition to issues of not being transparent or accountable enough is that, 'Well, the Labor Party does it too.' It's not good enough. It's not good enough to try and pin the blame on a scandal from 20 years ago. We need a transparent approach to grants. We need more transparency, not less. We need reform to our whole system of government accountability. We need an independent commission against corruption that can tackle this issue. The Greens have led the way on this issue, as on so many others. The bill introduced by Senator Waters to introduce an independent corruption commission is ready to be voted on in the other place.

Coming back to these biosecurity laws, meanwhile we've got the government which is basically fumbling with these minor tweaks to biosecurity laws at the same time as we've got the sports rorts grants program happening, rorting across multiple portfolios and, of course, our country has been burning under the fire emergency and our climate emergency. We've still got no meaningful action on our climate emergency. If you look at the legislation that we've been discussing today, yes, it's all important stuff, but it doesn't go to the key issues that are being faced by our community today. The climate emergency is already impacting on agricultural production and will have far greater ramifications in years to come. It much more important than having these minor changes to biosecurity laws—far greater ramifications.

We've just had 11,000 scientists around the world declaring a climate emergency. The magnitude of the problems we face and their impact upon our wellbeing are stark and sobering. Yet what we are debating in this Senate today are these minor tweaks to our biosecurity legislation. We know full well what the world needs to be doing to deal with our climate emergency and that is why the government is trying to keep attention away from it. We know what needs to happen is to replace coal, gas and oil as quickly as possible with renewable energy. We know that it can be done and we know that, frankly, it must be done or the world is going to be a incredibly scary place for our children or grandchildren.

While we are debating, and the government is legislating for, changes at the margins which will, yes, maybe have some minor tweaks, some minor impacts, on our agricultural sector, we know that the climate emergency is far more important. We know that it's going to absolutely wipe out any of these minor improvements that these tweaks to our biosecurity legislation are going to bring into being. We're going to have more times spent in drought. We are going to have much more variability in crop yields. We are going to have more frequent and intense heatwaves and extreme weather events. We've got projections that there's going to be a halving of the irrigated agricultural output of the Murray-Darling Basin region, which currently accounts for 50 per cent of our irrigated agricultural output or $7.2 billion a year. What is the government doing with this? Absolutely nothing. The legislation that we are debating today is so minor and inconsequential in comparison. Under four degrees of warming, the climate—

Debate interrupted.