Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I present Delegated legislation monitor No. 14 of 2024, together with ministerial correspondence, and I move:

That the Senate take note of the report.

I rise to speak to the Senate Standing Committee for the Scrutiny of Delegated Legislation's report, Delegated legislation monitor No. 14 of 2024. This monitor reports on the committee's consideration of 71 legislative instruments registered between 15 and 18 October 2024.

I'd first like to draw the chamber's attention to the Explosives Regulations 2024, which the committee is pleased to conclude its examination of in this monitor. This instrument prescribes matters relating to the transport and handling of explosives and the control of Commonwealth explosive areas. It was also considered by the committee in monitors12 and 13. The committee sought the minister's advice in relation to a number of scrutiny principles, including in relation to the delegation of administrative powers. The minister advised that it was considered necessary and appropriate to delegate such powers as they were administrative in nature, as well as to avoid delay and offer flexibility. He also noted that, due to the drafting of the relevant provisions, only three substantive powers could be delegated under the study in writing.

The committee raised scrutiny concerns in monitors 4 and 12 relating to the automation of discretionary powers and the adequacy of the explanatory statement. This included seeking the minister's advice as to which aspects of a visa condition 8208 decision would or may be made by a computer program, why the use of automated decision-making was considered necessary and appropriate, and whether any safeguards applied. In his correspondence of 14 November 2024, the minister provided some helpful advice, including that the automation of decisions is necessary and appropriate because there are long-standing arrangements in the student visa program for automation of visa processing, and to address concerns raised by university stakeholders during consultation in relation to delays in visa processing.

The committee welcomes advice provided in this response that only approval decisions will be automated and that decisions to refuse an application or decisions that are complex or require discretion will only be made by the minister or their delegate. The committee considers this to be an important safeguard on the automation of decisions to ensure that the minister or delegate exercises their discretionary power personally, without fetter, and it provides some clarification as to the nature and scope of automation. Additionally, the committee welcomes advice the minister provided as to safeguards, including that intended IT capabilities for automated processing of decisions would be developed in line with documented business requirements, rules, specifications and quality assurance testing. The committee also acknowledges the minister's advice that, presently, there is no automation of decisions relating to the visa condition and that only the minister or their delegate is considering such decisions. The committee welcomes the minister's undertaking to amend the explanatory statement to include his previous advice regarding the background to the visa conditions and change-of-course applications, mechanisms to identify and correct any errors in automated decision-making, and the operation of merits review as a safeguard. These amendments will assist users of the law to better understand how a computer program making a visa condition 8208 decision is intended to operate.

On the basis of this advice and the minister's undertaking to amend the explanatory statement, the committee concluded examination of the instrument. However, noting the minister's advice that automated decision-making was not enabled during the committee's consideration of the instrument, the committee has resolved to draw the authority for the use of automated decision-making for decisions in relation to visa condition 8202 to the attention of the Senate under standing order 23(4).

Further, the committee notes the increasing use of rapidly evolving technologies, including automated decision-making and algorithmic functions in administrative decision-making under delegated legislation. The committee is concerned that, while there is some work under way to improve this, the use of such technologies across portfolios is currently not supported by a consistent framework. Accordingly, the committee will continue to closely monitor the use of such technologies in delegated legislation and will consider whether its scrutiny principles are sufficient, or whether any inquiry is warranted to consider those matters more broadly.

I would also like to take this opportunity to continue to raise awareness of the committee's scrutiny principles and expectations outlined in Senate standing order 23. In my tabling statement of 18 September 2022 I discussed paragraphs (a) and (b), and today I would like to discuss paragraph (c). Under this principle, the committee considers whether legislative instruments include insufficiently defined administrative powers which may unduly impact the rights, liberties, obligations or interests of individuals. Under this principle, the committee considers instruments which facilitate automated decision-making, as the automation of decisions make better exercise of discretionary power. The committee considers that, while technology may be used to assist in the decision-making process, instruments should not enable the automation of discretionary decisions—except where the scope of the discretion is very narrow, with objective criteria. Where an instrument does provide for automated assistance in a decision-making process, its explanatory statement should clearly explain the nature of extent of this automated element and why it is considered necessary and appropriate. Further, the explanatory statement should address what safeguards are in place to ensure the decision-maker exercises their discretionary powers personally and without fetter. Finally, the committee expects the explanatory statement to actually set out the availability of and pathways for seeking review, as well as whether there are mechanisms in place to correct errors.

Under paragraph (c) the committee also considers whether an instrument enables a person to delegate their powers or functions to another person. In these cases the committee expects the explanatory statement to set out the purpose and scope of the delegation, including why it is considered necessary, who will exercise the delegated power, whether they possess the appropriate qualifications and skills to do so, as well as any limitations and safeguards on the exercise of the powers.

The explanatory statement should also set out these matters where an instrument confers discretionary powers on a person. A discretionary power may empower the minister to make a decision based on the consideration of various relevant matters, with the ability for such decisions to affect the rights of interests and individuals. In such cases, the committee expects the instrument or explanatory statement to specify the factors the decision-maker must consider in making the decision, and whether an independent merits review is available.

I'm pleased to advise the chamber that three undertakings have been implemented in the past week. Three new undertakings have been made to address the committee's scrutiny concerns, and 19 undertakings remain outstanding for more than 90 days. I'm also pleased to report that since the committee began listing undertakings outstanding for more than 90 days in each monitor the committee has, in fact, received regular updates from ministers and their agencies on the progress of implementing outstanding undertakings. Oh behalf of the committee, I thank those ministers and agencies for their ongoing engagement.

With these comments, I commend Delegated legislation monitor No. 14 of 2024 to the Senate.

Question agreed to.