Glenn Sterle (WA, Australian Labor Party, Shadow Assistant Minister for Road Safety) Share this | Link to this | Hansard source

Labor will be supporting the Agriculture Legislation Amendment (Streamlining Administration) Bill 2019. The bill seeks to amend laws relating to biosecurity and imported food to provide for streamlined administration through automated, computerised decision-making. The explanatory memorandum states the bill will: allow risk identification and management across a large number of goods and conveyances; reduce the burden on importers by enabling fast, accurate clearance; and provide flexibility in responding to existing and emerging risks.

It is important that the Senate understand that automated, computerised decision-making systems are not new. In 2004 the Administrative Review Council considered the administrative law implications of computerised decision-making. Back then the council concluded that expert systems could assist in administrative decision-making. The explanatory memorandum states that it is intended the principles set out by the Administrative Review Council be taken into account during the implementation of the automated decision-making scheme 'to the extent consistent with maintaining biosecurity and food health and safety standards'. The bill provides discretion for authorised officers to override an electronic decision where satisfied the electronic decision is inconsistent with the objects of the relevant act or another decision is more appropriate in the circumstances.

Decisions made by a computer program will be subject to merit and judicial review in the same way as a decision made by an officer under the relevant provision. In the case of the Biosecurity Act, the decision will be taken to have been made by the Director of Biosecurity but not in a personal capacity and as such the matter will be subject to a judicial review in the first instance. The bill provides the Director of Biosecurity with broad powers to arrange for the use of computer programs for any purposes for which a biosecurity officer is required to make a decision under a relevant provision, exercise power related to making a decision or do anything related to exercising a decision-making obligation.

Ensuring Australia maintains its world-class biosecurity status is critically important. This bill will assist decision-makers to make timely decisions on biosecurity matters which are simple, frequent, repeatable decisions that have a low biosecurity risk. However, the Morrison government cannot use this bill as an excuse to not properly fund Australia's biosecurity system. The government has failed to even introduce its own biosecurity levy which it announced in the 2018 budget. The budget measure was to raise $325 million over three years, beginning from 1 July 2019. Yet here we are in February 2020, and not one cent has been raised from the levy. This is because the Morrison government has failed to implement the levy.

The agriculture minister's own department told us how the levy would be spent. But, remember, not one cent has been raised so far. Therefore, either the programs listed below are not being funded or the Morrison government is cutting costs elsewhere in the agriculture department. This is what the Morrison government said it would fund. I'll name the program first and then the amount: assurance verification and enforcement, $34 million—this is over five years; border clearance, including traveller, mail, sea and air cargo pathways, $7½ million; priority pest and disease planning and response, $65.6 million; Indigenous biosecurity rangers program, $33.5 million; biosecurity predictive analytics and intelligence, $36.5 million; emergency response funding, $35 million; Biosecurity Innovation Program, $25.2 million; environmental biosecurity protection, $7.6 million; international sea and airport supplementary funding, especially passengers, $18.1 million; and, for our Tasmanians, the Tasmanian fruit fly, $20 million. Not one cent has been raised!

This third-term government has failed to take our biosecurity systems seriously. Automating a few decisions will not be enough to ensure our biosecurity is the best it can be. The funding of our biosecurity system was a key element of the 2017 independent review into the capacity of Australia's national biosecurity system. The report made 42 recommendations to strengthen our national biosecurity system, but the Morrison government has failed to implement all 42 recommendations. Ensuring that our biosecurity system is properly funded must be a priority for this third-term government. The department of agriculture has seen four different ministers and is up to its third different departmental secretary. This disruption has impacted on the department being able to deliver effective policies to ensure our biosecurity system remains strong.

There are many biosecurity risks that threaten Australia's world-class biosecurity status. All senators will remember the impact of white spot on the Queensland prawn farmers, and African swine flu remains a real threat to our world-class pork industry—and, Senator Colbeck, you and I vividly remember citrus canker. Maintaining Australia's clean, green and safe competitive advantage is critical to our farmers, fishers and foresters. Sadly, the Morrison government continues to fail to develop and implement the biosecurity levy, with another working group being established to co-design and figure out how the levy will work. I'm not making this up. According to the department's website, the new industry working group will determine how the newly-named 'onshore biosecurity levy' will be applied, the appropriate charging points, the scope and the implementation timing.

However, once again, the government seems to not have learnt its lessons from the past: there is no mineral based product representation on the new committee. It appears that the government will just seek to announce the new levy in the May budget. It is difficult to see how this third-term coalition government will get the levy right this time around, when it couldn't get it right after two years of trying. There are no terms of reference for the new committee, and stakeholders will be concerned as to who will be the target of this new levy. It seems the government just doesn't get that poor consultation will always lead to poor policy design.

The other aspect of this bill is that it will amend the Imported Food Control Act, and I'll talk about that. The Secretary of the Department of Agriculture may arrange for the use of computer programs for any purposes related to issuing of food control certificates; issuing of written advice following an inspection and analysis of food; and decisions regarding the treatment of failing food. The EM states that it is intended that computer programs will be used to issue automated food control certificates for all foods not required to be inspected, with foods requiring inspection continuing to receive a food control certificate from an authorised officer. The secretary must take reasonable steps to ensure consistency of decisions made by computer programs and may delegate the power to arrange for computer programs to make decisions to a senior executive service, or an SES. I reiterate that Labor supports this bill; however, this third-term Liberal-National government will need to do more than just minor amendments.

Janet Rice (Victoria, Australian Greens) Share this | Link to 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.