Bills Digest No.
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Law and Bills Digest Section
4 February 2020
Purpose of the Bill
Policy position of non-government
Position of major interest groups
Statement of Compatibility with Human
Key issues and provisions
Date introduced: 2
day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
All hyperlinks in this Bills Digest are correct as
at February 2020.
The purpose of the Agriculture Legislation Amendment
(Streamlining Administration) Bill 2019 (the Bill) is to amend the Biosecurity Act
2015 (Cth) and the Imported Food
Control Act 1992 (Cth) to enable computer programs to make decisions
and exercise certain powers under those Acts.
The term ‘automated system’ is broadly used to describe a
computer system that automates significant parts, or all, of an administrative
Such systems are increasingly being used to automate Government decision-making
to varying degrees.
In a 2004 report, the Administrative Review Council (ARC) considered
the administrative law implications of computerised decision-making.
The ARC concluded that expert systems could assist in administrative decision-making,
by potentially reducing inaccuracy and human prejudice in the interpretation
and application of complex rules and policy and ‘providing the opportunity for
making more accurate, consistent, efficient and transparent decisions’.
However, the ARC also noted the potential risks which may arise, acknowledging
that ‘the use of expert systems in administrative decision-making process is a
developing area in which a mistake in the design or operation of such a system
has the potential to affect many people’.
The report identified 27 best-practice principles to
ensure that decision-making undertaken with the assistance of automated systems
was consistent with administrative law values of lawfulness, fairness, rationality,
openness and efficiency. These principles included:
systems that make a decision are generally suitable only for decisions
involving non-discretionary elements—they should not automate the exercise of
use of an expert system to make a decision should be legislatively sanctioned
to ensure it is compatible with the legal principles of authorised decision
systems must be constructed to comply with administrative law standards and
disclosure requirements, including requirements associated with giving reasons
should be designed, used and maintained in such a way that they accurately and
consistently reflect the relevant law and policy
should provide a comprehensive audit trail and
should have the capacity to conduct internal reviews of decisions where
appropriate, and external reviews should be done manually in accordance with
the relevant tribunal or court procedures and practices.
A 2007 Automated
Assistance in Administrative Decision-Making: Better Practice Guide, produced
by a large number of Australian Government agencies and led by the Australian
Government Information Management Office, sought to guide the practical
application of the ARC principles by Government agencies and departments.
The increased use of computerised decision-making by
government agencies has generated concern and debate about the design of such systems,
the circumstances in which they should be used, and the protections in place. Federal
Court of Australia Justice Melissa Perry has highlighted potential implications
of the use of pre-programmed systems in decision-making, particularly with
regards to decision-maker discretion, noting:
It is not difficult to envisage that the efficiencies which
automated systems can achieve and the increasing demand for such efficiencies
may overwhelm an appreciation of the value of achieving substantive justice for
the individual. In turn this may have the consequence that rules-based laws and
regulations are too readily substituted for discretions in order to facilitate
the making of automated decisions in place of decisions by humans. The same
risks exist with respect to decisions which ought properly to turn upon
evaluative judgments. Legislative amendments directed towards facilitating
greater automation by requiring the application of strict criteria in place of
the exercise of a discretion or value-based judgment, should therefore be the
subject of careful scrutiny ...
In April 2019, the Minister for Industry, Science and
Technology released a discussion paper
as part of a consultation
into the Government’s approach to artificial intelligence (AI) ethics in
The paper considered the use of AI in government decision-making and
acknowledged that while automated decision systems can limit issues associated
with human bias, due care must be taken with the data used by the systems and
the ways they assess what is fair or safe. The paper noted:
The number of decisions driven by AI will likely grow
dramatically with the development and uptake of new technology. When used
appropriately, automated decisions can protect privacy, reduce bias, improve
replicability and expedite bureaucratic processes. Australia’s challenge lies
in developing a framework and accompanying resources to aid responsible
development and use of automated decision technologies.
Considering issues of transparency, accountability,
delegation and liability, the paper concluded ‘existing legislation suggests
that for government departments, automated decisions are suitable when there is
a large volume of decisions to be made, based on relatively uniform,
uncontested criteria’. It echoed earlier conclusions of the ARC that where
discretion is required, automated systems ‘are best used only as a tool to
assist human decision makers—or not used at all’.
In October 2019, the federal Government announced it would
provide $31.8 million for the establishment of a research centre to investigate
‘responsible, ethical and inclusive’ automated decision-making. The Centre
of Excellence for Automated Decision-Making and Society will be based at
RMIT University, with an additional $39.3 million in funding provided by
academic and industry partner organisations from Australia, Europe, Asia and
and technology project
As part of its current project examining human rights and
technology, the Australian Human Rights Commission (AHRC) is considering the
use of AI in decision-making, both in the public and private sectors. In a discussion paper
released in December 2019, the AHRC noted that the use of AI to make decisions,
when properly deployed, can improve some forms of decision-making by making it
‘faster, more data-driven and efficient’. However, it also pointed to the
‘significant risks to human rights’, which vary according to the design of the
system and the role, if any, of a human in the decision-making process.
In the context of government decision-making and
administrative law, the AHRC noted the ‘difficult, novel issues’ that arise,
including the question of the reviewability of a ‘decision’ which is entirely
made by a computer program.
The Commission noted that matters such as transparency, ‘explainability’ and
liability, important for ensuring accountability in decision-making, also face
technical, commercial and legal obstacles in the context of AI-informed
Identifying a range of existing legislative provisions which enable the use of
a computer program to support government decision-making in a range of areas, it
The progress in AI-informed decision making since the early
2000s could not have been contemplated by lawmakers at that time. The
possibility of full automation of AI-informed decision making, for example, is
now a realistic prospect. This means that older legislation dealing with this
issue should be reviewed. Technological development necessitates a new approach
to ensure AI-informed decision making is accountable.
The AHRC suggested that the use of AI-informed decision-making
should be expressly provided for in law, with legal rules underpinning its use
in each specific context.
It also proposed a range of broader measures to support government use of AI,
requirement that the Government undertake a cost-benefit analysis and public
consultation with affected groups before deploying an AI-informed
to require that an individual is informed where AI is materially used in a
decision that has a legal, or similarly significant, effect on their rights
providing for a person’s right to a non-technical explanation of an AI-informed
decision (where they would be entitled to reasons for the decision if made by a
human), as well as a technical explanation that can be assessed and validated
by a person with relevant technical expertise, to enable the person to
understand the basis of the decision and any grounds on which it should be challenged
which creates a rebuttable presumption that the legal person who deploys an
AI-informed decision-making system is liable for the use of the system.
The AHRC also proposed the Government engage the
Australian Law Reform Commission to conduct an inquiry into the accountability
of AI-informed decision-making, to consider reform or other change needed to
protect the principle of legality and the rule of law, and promote human
The AHRC is currently undertaking further public consultation on the proposals
and questions set out in its discussion paper, with a submission deadline of 10
A final report is due in 2020.
and computerised decision-making
Automated systems have been used in agricultural
decision-making for some time. The 2004 ARC report noted the use of the
Australian Quarantine and Inspection Service Import Management System (AIMS) to
make decisions on whether imported commodities should be subject to inspection
at the border and to provide advice on the appropriate tests to apply. The
report also pointed to a number of other expert systems in use, including a
Phyto Internet-Grains/Horticulture Expert System and Live Animal Exports
System, used to make decisions to permit or reject an export under the Export
Control Act 1982, and risk assessment tools such as the Ballast Water
Decision Support System and Vessel Monitoring System.
The Agriculture Department currently uses a version of the
AIMS (now the Agriculture Import Management System) to record and track goods
that are imported into Australia and subject to quarantine and imported food
restrictions. The system provides directions to manage biosecurity risks,
records the Department’s decision-making process, and communicates this
information to the importer or broker.
Another system in use is the Biosecurity
Import Conditions system (BICON), launched in 2015, which provides
Departmental staff and importers with details of the biosecurity import
conditions for more than 20,000 plants, animals, minerals and biological
In its 2016–17 Annual Report, the Department explained:
Importers can apply, track and manage BICON import permits
online through a registered user account. The system is also used to notify
registered users when published conditions change, ensuring importers are aware
of the most current import conditions.
Receiving more than 1.8 million unique web hits a month, and
with more than 15,000 registered importers, BICON has made it much easier for
importers to comply with their biosecurity obligations. We have calculated that
this will lead to an annual saving of more than $26 million in compliance
costs and regulatory burden.
Regional Affairs Committee
The Senate Standing Committee on Rural and Regional
Affairs and Transport issued its report on the Bill in January 2020.
The Committee recommended the Bill be passed. It pointed to the benefits of
automated decision making in the biosecurity context—including in allowing more
efficient clearance processes and reducing the administrative burden on both
importers and biosecurity officers—and concluded that the Bill provided a
number of safeguards against any potential inappropriate use.
Standing Committee for the Scrutiny of Bills
The Scrutiny of Bills Committee has not reported on the
Bill at the time of writing.
position of non-government parties/independents
No non-government parties or independents have commented
on the Bill at the time of writing.
major interest groups
The Queensland Department of Agriculture and Fisheries
made a submission to the Senate inquiry.
It expressed general support for the changes proposed by the Bill, and made a
number of recommendations for addressing the possible biosecurity risks in the
context of automated decision-making. These included the implementation of
regular and frequent spot audits on automated decisions; not using automated
decision making for high risk pathways; and recording or tracking the
destination of high risk imported goods to enable trace-back to the source
No other interest groups or stakeholders appear to have
commented on the Bill at the time of writing.
The Explanatory Memorandum states that the Bill will have
no financial impact on the federal Budget.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights has not
reported on the Bill at the time of writing.
The Bill proposes inserting provisions into the Biosecurity
Act and Imported Food Control Act to provide an express statutory basis
for the use of computer systems to make decisions. The Explanatory Memorandum
suggests that automated decision-making in the context of Australia’s
biosecurity system is crucial, as it:
risk identification and management across a large number of goods and
the burden on importers by enabling fast, accurate clearance and
flexibility in responding to existing and emerging risks.
The Explanatory Memorandum further states that it is intended
the principles set out by the ARC will be taken into account during
implementation of the automated decision-making scheme, ‘to the extent
consistent with maintaining biosecurity and food health and safety standards’.
However, it suggests that there are circumstances in which expert systems may
appropriately ‘fetter’ discretion, noting that most decisions in the
... involve the application of detailed business rules where
ordinarily the exercise of discretion is not expected by, and is not in the
interest of, entities seeking fast and predictable clearance.
Currently, the Biosecurity Act provides for the use
of automated systems in specific contexts—that is, for:
making of decisions regarding exemptions in relation to the discharge of
issuing of a notice releasing goods and conveyances from biosecurity control.
Item 1 inserts proposed section 541A into
the Biosecurity Act. This provides the Director of Biosecurity (the
person who is, or who is acting as, the Secretary of the Agriculture
with the power to arrange for the use of computer programs for any purposes for
which a biosecurity officer may or must:
a decision under a relevant provision of the Act, as specified in
a determination made under proposed subsection 541A(2) (discussed below)
a power or comply with an obligation related to the making of such a decision
anything else relating to the making of such a decision, exercising such a
power or complying with such an obligation.
Proposed subsection 541A(9) sets out the provisions
of the Biosecurity Act which are relevant provisions for
the purposes of computerised decision-making. These include:
provisions relating to the managing of biosecurity risks for goods under
Chapter 3 of the Act—this could include, for example, decisions requiring goods
to be destroyed, or moved or treated in a particular way, and decisions
relating to the unloading of goods from an aircraft or vessel
provisions relating to the managing of biosecurity risks for conveyances under
Chapter 4 of the Act—this could include, for example, decisions requiring a
conveyance to be secured or moved to another place, or requiring biosecurity
measures to be taken in respect of the conveyance
relating to the granting of pratique (that is, permission to land or enter a
port, and to disembark and unload cargo) for an incoming aircraft or vessel
which complies with certain requirements
provisions relating to the ballast water and sediment of vessels under Chapter
5 of the Act
granting of permission under section 557 to engage in conduct which would
otherwise contravene the Act
600 and 602, which relate to the withholding of goods subject to an unpaid
cost-recovery charge and
provision of an instrument which is made under a relevant provision
of the Act.
This captures a broad range of decisions which vary in
terms of their complexity and the level of decision-maker discretion involved. However,
in order for computer programs to be used to make decisions under any of these relevant
provisions, proposed subsection 541A(2) provides that the Director of
Biosecurity may first determine via legislative instrument that this can be
done in relation to the specific provision. The Explanatory Memorandum states
that it is intended that this instrument will specify decisions which are based
on a technical and scientific identification of biosecurity risk, such as a
direction to provide information or answer questions, require production of
documents, or move goods. It further provides:
Decisions which require the written approval or consent of
the Director of Biosecurity are not intended to be determined as decisions
suitable for a computer program to decide. For example, a decision to require
treatment of high value goods at subsection 133(1) of the Biosecurity Act or a
direction to require the destruction of high value goods at section 136(1).
However, there is nothing in the text of the Bill which
would prevent such matters being brought within the scope of the computerised
The Director may also, by legislative instrument,
determine the classes of persons that may use computer programs for this
purpose and the conditions of use.
A legislative instrument made by the Director of Biosecurity will be subject to
of the Director of Biosecurity
The Director of Biosecurity must take reasonable steps to ensure
that decisions made by a computer program under proposed subsection 541A(1):
consistent with the objects of the Biosecurity Act
based on grounds on the basis of which a biosecurity officer could have made
The Director may delegate their powers and functions in
relation to computerised decision-making to an SES employee or acting SES
employee in the Agriculture Department. These powers and functions must not be
Food Control Act
The Imported Food Control Act provides for the
inspection and testing of imported food, to ensure that it complies with
Australian food standards (as contained in the Australia and
New Zealand Food Standards Code) and with public health and safety
When a consignment of imported food is referred for inspection, this will
usually involve a visual and label assessment and may also include sampling the
food for the application of analytical tests. The inspection rate and types of
tests performed, depend on the food’s risk classification.
Food which does not meet the applicable standards, or
which is found to pose a risk to human health, is classified as ‘failing food’
and may be required to be destroyed or treated to bring it into compliance.
Item 11 of the Bill inserts proposed section
20A into the Imported Food Control Act, which provides that the
Secretary of the Agriculture Department may arrange for the use of computer
programs for any purposes related to the following matters:
issuing of food control certificates under section 12
issuing of written advice following the inspection and analysis of food under
section 14—such advice includes information as to whether the food is
identified as ‘failing food’ and how the food is to be dealt with and
regarding the treatment of ‘failing food’ under section 20, including requiring
the owner to treat the food in a specified manner, destroy the food or
re-export the food.
The Explanatory Memorandum states it is intended that
computer programs will be used to issue automated food control certificates for
all foods not required to be inspected—foods requiring inspection will
continue to receive a food control certificate from an authorised officer. It
also states that despite proposed section 20A providing for the use of
automated systems for decisions under sections 14 and 20 of the Imported
Food Control Act, there is no intention for this to be done before computer
program technology further develops.
of the Secretary
The Secretary must take reasonable steps to ensure that decisions
made by a computer program:
consistent with the object of the Imported Food Control Act
based on grounds on which an authorised officer could have made that decision.
The Secretary may delegate the power to arrange for
computer programs to make decisions, but only to a Senior Executive Service (SES)
employee or acting SES employee in the Department.
The proposed computerised decision-making provisions under
both the Biosecurity Act and Import Food Control Act provide that
a biosecurity officer or authorised officer (respectively) may override an
electronic decision with a new decision where satisfied:
electronic decision is inconsistent with the object(s) of the relevant Act or
decision is more appropriate in the circumstances.
Additionally, amendments to both Acts provide that a decision
made by a computer program will be of no effect if it is inconsistent with an
earlier decision made by a person under the relevant Act.
Decisions made or powers exercised by a computer program
under the proposed provisions, will be taken to have been made or exercised by
the Agriculture Secretary (for matters under the Biosecurity Act, this
will be in the Secretary’s capacity as the Director of Biosecurity).
This means that decisions made by a computer program will
be subject to merits and judicial review in the same way as decisions made by
an officer under the relevant provision. Both Acts provide for a two-step
process of merits review which involves firstly, internal review of a decision
and subsequently, a right of appeal to the Administrative Appeals Tribunal
Decisions may also be the subject of judicial review by the courts, under the Administrative
Decisions (Judicial Review) Act 1977.
Proposed subsection 541A(6) of the Biosecurity
Act provides that while a decision made by a computer program will be taken
to have been made by the Director of Biosecurity, it will not be taken to be a
decision made by the Director personally. The effect of this is to clarify that
such a decision will still be subject to an initial internal review, rather
than going straight to the AAT.
assistance in administrative decision-making: better practice guide,
Australian Government, Canberra, February 2007, p. 4.
Review Council (ARC), Automated
assistance in administrative decision making, Report to the
Attorney-General, 46, ARC, Canberra, November 2004.
pp. 9, 34–36.
Government, Automated assistance in administrative decision-making, op.
administrative decision-making in the digital world’, Australian Law
Journal, 91(1), 2017, pp. 33–34.
Andrews (Minister for Industry, Science and Technology), Seeking
feedback on ethics of artificial intelligence, media release, 5 April
2019; D Dawson and E Schleiger, Artificial
intelligence: Australia’s ethics framework: a discussion paper, Data61
CSIRO, commissioned by Department of Industry, Innovation and Science, 2019.
and Schleiger, Artificial intelligence: Australia’s ethics framework,
op. cit., p. 33.
Tehan (Minister for Education) and K Andrews (Minister for Industry, Science
and Technology), Improving
automated decision making, media release, 9 October 2019; S Easton, ‘Way
beyond robodebt: new $70m research centre to improve automated decision-making’,
The Mandarin, 14 October 2019.
Human Rights Commission (AHRC), Human rights
and technology: discussion paper, AHRC, Sydney, December 2019, p.
‘Consultation now open:
Australian Human Rights Commission discussion paper on human rights and
technology’, AHRC Human Rights and Technology website.
‘Human rights and
technology—our work’, AHRC Human Rights and Technology website.
Automated assistance in administrative decision making, op. cit., p. 57.
National Audit Office (ANAO), Implementation
of the biosecurity legislative framework: Department of Agriculture and Water Resources,
Audit report, 34, 2016–17, ANAO, Barton, ACT, 2017, p. 45.
of Agriculture and Water Resources, Annual
report 2016–17, Department of Agriculture and Water Resources,
Canberra, 2017, p. 105; ANAO, Implementation of the biosecurity legislative
framework: Department of Agriculture and Water Resources, op. cit., p. 45.
of Agriculture and Water Resources, Annual report 2016–17, op. cit., p.
Rural and Regional Affairs and Transport Legislation Committee, Agriculture
Legislation Amendment (Streamlining Administration) Bill 2019, The
Senate, Canberra, 31 January 2020.
Department of Agriculture and Fisheries, Submission
to the Senate Rural and Regional Affairs and Transport Legislation Committee, Inquiry
into the Agriculture Legislation Amendment (Streamlining Administration) Bill
2019, [Submission no. 2], n. d.
Memorandum, Agriculture Legislation Amendment (Streamlining Administration)
Bill 2019, p. 3.
Statement of Compatibility with Human Rights can be found at page 14 of the Explanatory
Memorandum to the Bill.
Memorandum, Agriculture Legislation Amendment (Streamlining Administration)
Bill 2019, p. 2.
. Biosecurity Act
2015 (Cth), subsections 280(6), (7).
Act, sections 163 (in relation to goods) and 219 (in relation to
Act, section 540.
Act, subsections 49(4), (5); the requirements for the granting of pratique
under section 49 are set out in the Biosecurity (Negative
Practique) Instrument 2016 (Cth); also see: DOA, ‘Pratique’,
DOA website, last reviewed 4 November 2019.
Memorandum, Agriculture Legislation Amendment (Streamlining Administration)
Bill 2019, p. 6.
Act, proposed subsection 541A(2).
Act, proposed subsection 541A(3).
Act, proposed subsection 541A(4). However, an electronic decision
may be made without any state of mind being formed in relation to the matters
to which the decision relates (for example, the computer system does not need
to be ‘satisfied’ of a certain matter, even though this might be required for
an officer making a decision under the same provision).
Act, proposed table item 26A in subsection 542(3) (inserted
by item 6).
. Imported Food
Control Act 1992 (Cth), section 2A; DOA, ‘Imported
food inspection scheme’, DOA website, last reviewed 4 November 2019.
food inspection scheme’, op. cit.
Food Control Act, sections 3 (definition of failing food) and
20; DOA, ‘Failing
food reports’, DOA website, last reviewed 13 January 2020.
Memorandum, Agriculture Legislation Amendment (Streamlining Administration)
Bill 2019, pp. 11–12.
Food Control Act, proposed subsection 20A(3).
Food Control Act, proposed subsection 20A(4). However, an electronic
decision may be made without any state of mind being formed in relation to the
matters to which the decision relates (for example, the computer system does
not need to be ‘satisfied’ of a certain matter, even though this might be
required for an officer making a decision under the same provision).
Food Control Act, proposed subsection 41(2).
Act, proposed subsection 541A(7); Imported Food Control Act, proposed
Act, proposed subsection 541A(8); Imported Food Control Act, proposed
Act, proposed subsection 541A(5); Imported Food Control Act, proposed
Act, section 576; Imported Food Control Act, subsections 42(2), 42(4)–(9).
Act, section 578; Imported Food Control Act, subsections 42(1)
(definition of reviewable decision) and 42(11).
Act, subsections 576(1) and 578(1)—items 7 and 9 amend or insert
notes to these subsections, respectively, referring back to proposed
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