Raff Ciccone (Victoria, Australian Labor Party) Share this | Hansard source

I present Scrutiny digest 2 of 2023 of the Standing Committee for the Scrutiny of Bills. I move:

That the Senate take note of the report.

As the Deputy Chair of the Standing Committee for the Scrutiny of Bills—I note that Senator Dean Smith, who is actually the chair, wasn't able to be here today, so I'm the deputy chair but acting as chair—I rise to speak to the tabling of the committee's Scrutiny digest 2 of 2023.

The digest contains the committee's assessment of all bills recently introduced into the parliament. Each bill is assessed against the committee's technical scrutiny principles, set out in standing order 24. These principles focus on the effect of proposed legislation on parliamentary scrutiny and individual rights, liberties and obligations.

Importantly, the committee has a strong and longstanding commitment to non-partisanship and, accordingly, the digest does not consider the policy merits of bills.

Scrutiny digest 2 of 2023 reports on the committee's consideration of 18 bills which were introduced into the parliament during recent sitting weeks. It also contains the committee's comments on recent ministerial responses in relation to 11 bills.

In this Digest, the committee has welcomed several undertakings made in response to the committee's recommendations. For instance, the Minister for Health and Aged Care has accepted the committee's recommendation to amend the Private Health Insurance Legislation Amendment (Medical Device and Human Tissue Product List and Cost Recovery) Bill 2022. The bill seeks to provide the minister with a discretionary power to delist certain kinds of medical devices or human tissue products where a person who is liable to pay a relevant cost-recovery fee or levy has failed to do so. Delisting would remove a private health insurer's mandatory obligation to pay a set benefit in relation to the relevant medical device or human tissue product.

Similarly, the bill would provide the minister with a discretionary power to direct that certain activities not be carried out where a person has failed to pay a cost-recovery fee or a levy. For example, the bill would allow the minister to refuse to carry out services in relation to a request to list a new product if the applicant has not paid the application fee.

Following the committee's recommendation, the Minister for Health and Aged Care has undertaken to introduce an amendment which would require the minister to first have regard to certain matters prior to making a decision. Namely, the minister would be required to consider whether the exercise of the discretionary powers would adversely affect the interests of patients or significantly and adversely limit the professional freedom of medical practitioners. I thank the minister, on behalf of the committee, for his constructive engagement with the committee.

I would also like to highlight the committee's comments in relation to two bills which introduce new powers to allow for automated decision-making.

The use of computer processes to assist government decision-making has significant administrative benefits including increased consistency, efficiency and accuracy. However, if used inappropriately, these processes have the potential to impact on the rights of individuals and may lead to legal error. The committee therefore closely scrutinises any proposed automated decision-making process to determine whether its use is adequately justified and is subject to appropriate safeguards. The committee generally expects these safeguards to be set out on the face of a bill, rather than within delegated legislation.

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 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. These matters are particularly relevant to more complex or discretionary decisions.

The Treasury Laws Amendment (2023 Measures No. 1) Bill 2023seeks to amend the Corporations Act 2001to alter the process by which ASIC deals with applications for the Financial Advisers Register. The bill would allow ASIC to arrange for the use of computer processes to assist decision-making for any purposes for which ASIC may make decisions in relation to registration.

There are several safeguards set out within the bill in relation to the use of automated decision-making, including that ASIC may change a decision made by a computerised process if it is satisfied that the decision is wrong. The committee welcomes these safeguards. However, the committee is concerned about the breadth of the power to arrange for the use of computer processes to assist in decision-making. It is unclear to the committee why this power could not be narrowed to particular decisions, for example, by providing that such processes would only be allowed for binary, non-discretionary decisions.

The committee has therefore requested the Treasurer's advice in relation to: whether all of the relevant decisions will be non-discretionary; what processes ASIC has in place to identify potentially incorrect decisions made by a computer; and what policies are in place to ensure the integrity and transparency of the decision-making process.

The Migration Amendment (Australia's Engagement in the Pacific and Other Measures) Bill 2023 would establish a new framework for a visa pre application process. The intention is that the new framework would allow for computer processes to be used to randomly select eligible persons from a pool of applicants, who may then apply for a relevant visa upon selection.

In this case, automated decision-making will only be used in relation to non-discretionary decisions, given that the process is intended to be random and that eligibility requirements for the registration of a person must be objective. The non-discretionary nature of these decisions significantly reduces the committee's concerns.

However, the committee is nonetheless concerned that the majority of the detail as to how the automated decision-making process is intended to operate is being left to delegated legislation. Indeed, while the bill has been introduced in anticipation of the creation of the Pacific engagement visa, the framework nature of the bill would provide for the power to undertake visa preapplication processes in relation to anyvisa. The committee has therefore expressed the view that further safeguards in relation to the use of computer processes should be set out in the bill. For example, the committee has recommended that it may be appropriate to allow a departmental officer to review data inputted into the system to ensure any mistakes made by an individual do not preclude them from eligibility. The committee has also recommended that the bill set out clear arrangements for the ongoing monitoring and evaluation of the computer system.

The committee has requested the Minister for Home Affairs' advice in relation to these matters.

I encourage all senators and members of the other place to carefully consider the committee's analysis contained in the digest. With these comments, I commend the committee's Scrutiny digest 2 of 2023 to the Senate.

Question agreed to.