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

On behalf of Senator Dean Smith, I present Scrutiny digest 8 of 2024 of the Standing Committee for the Scrutiny of Bills, together with ministerial correspondence received by the committee. I seek leave to incorporate a tabling statement in Hansard.

Leave granted.

The statement read as follows—

As Acting Chair of the Senate Standing Committee for the Scrutiny of Bills, I rise to speak to the tabling of the committee's Scrutiny Digest 8 of 2024.

Scrutiny Digest 8 of 2024 reports on the committee's consideration of twelve bills which were introduced into the Parliament during recent sitting weeks, as well as amendments made to two bills.

In this Digest, the committee has identified potential scrutiny concerns in relation to seven newly introduced bills.

In particular, I wish to draw Senators' attention to the committee's comments on the Telecommunications Amendment (SMS Sender ID Register) Bill 2024. The bill raises scrutiny concerns in relation to automated decision-making. The increased use of automated decision-making across legislation is an issue the committee is closely considering where it arises.

This bill seeks to provide that the Chair of the Australian Communications and Media Authority (ACMA) can arrange for the use of computer programs to take administrative action under proposed Part 24B of the Telecommunications Act 1997 in relation to an SMS Sender ID Register.

Administrative law typically requires decisionmakers 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, and circumstances where the exercise of a statutory power is conditioned on the decision-maker taking specified matters into account or forming a particular state of mind.

In this case, the bill includes a number of welcome oversight and safeguard mechanisms, including:

Public Governance, Performance and Accountability Act 2013

The inclusion of these safeguards and oversight measures on the face of the bill are welcome. The explanatory memorandum further notes that 'where a decision involves the exercise of discretion or an evaluative judgement, a computer program will not be programmed to take action'. The committee's position is that administrative automated decision-making should only be applied to non-discretionary decisions. While this intent is reflected in the explanatory memorandum, this protection would be strengthened by being included on the face of the bill itself.

The bill further provides for criteria relevant to automated decisions to be set out in legislative instruments. The inclusion of this additional criteria in legislative instruments limits the ability of the committee to assess whether or not such criteria could be considered discretionary and therefore whether it is appropriate for those decisions to be subject to automated decision-making.

The committee welcomes the considered safeguards in the bill and detailed information about automated decision-making in the explanatory memorandum and notes the department's genuine engagement with this important matter. It is heartening, from a scrutiny perspective, to see such consideration given to the automation of decisions and the recommendations of the Royal Commission into the Robodebt Scheme Report.

Nevertheless, the committee has requested the minister's further advice in relation to these additional concerns.

I encourage all parliamentarians to carefully consider the committee's analysis contained in the Digest. With these comments, I commend the committee's Scrutiny Digest 8 of 2024 to the Senate.