Referral of inquiry
1.1
On 28 November 2019, the Senate Rural and Regional Affairs and Transport Legislation Committee (the committee) was referred the Agriculture Legislation Amendment (Streamlining Administration) Bill 2019 (the bill), for inquiry and report by 31 January 2020.
1.2
In referring the bill to the committee, the Senate Selection of Bills Committee put forward a number of issues for consideration as part of the inquiry, including:
investigating the impact of the bill on current biosecurity systems and imported food requirements;
any additional charges or savings which might be associated with the bill's amendments; and
the impact on biosecurity staff.
Conduct of the inquiry
1.3
The committee advertised the inquiry on its webpage, calling for submissions by 10 January 2020. The committee also wrote to a range of key stakeholder groups and organisations, drawing their attention to the inquiry and inviting them to make written submissions.
1.4
The committee received two submissions, which are listed at Appendix 1. Submissions were published on the committee's inquiry webpage.
1.5
The committee completed its inquiry on the basis of these submissions, and on other publicly available information regarding the bill and its provisions, including the bill's Explanatory Memorandum (EM).
Acknowledgement
1.6
The committee thanks those organisations which provided written submissions to the inquiry. This work has informed the committee's deliberations.
Structure of the report
1.7
The report consists of two chapters. Chapter 1 provides background information and an overview of the bill's purpose. The second chapter outlines the key provisions of the bill, presents the views of submitters, and presents the committee's views and recommendation.
Consideration by other committees
1.8
At the time of reporting by the committee, neither the Senate Standing Committee for the Scrutiny of Bills nor the Parliamentary Joint Committee on Human Rights had considered the bill. A statement of compatibility with human rights accompanies the bill, noting that the bill does not engage with any human rights issues.
Background
Automated decision making
1.9
Automated systems are computer systems that automate significant parts (or all) of an administrative decision‑making process. In 2007, the Australian Government issued a Better Practice Guide for Automated Assistance in Administrative Decision-Making, which noted that:
A hallmark of an automated system is its ability to examine a set of circumstances (data entered by the user) by applying 'business rules' (modelled from legislation, agency policy or procedures) to 'decide' dynamically what further information is required, or what choices or information to present to the user, or what conclusion is to be reached.
1.10
The 2007 Guide noted that Australian Government agencies were increasingly relying on computer systems in the administration of government programs. These systems could play a significant role in administrative decision-making, particularly in areas where high volumes of decisions are made. The Guide concluded that:
In the right areas and with appropriate management, these systems have the potential to improve the accuracy, consistency and transparency of administrative decision-making.
Purpose of the bill
1.11
The bill amends the Biosecurity Act 2015 (Biosecurity Act) and the Imported Food Control Act 1992 (IFC Act), to provide for streamlined administration through automated decision-making.
1.12
Automated decision‑making is currently expressly authorised for three sections in the Biosecurity Act, and is not expressly authorised for any sections of the IFC Act.
1.13
According to the EM, the bill will:
ensure there is a clear statutory basis for applications of automated decision‑making;
enable wider use of automated decision making to issue biosecurity directions and notices for imported food control certification;
enable the Director of Biosecurity (who is also the Secretary of the Department of Agriculture) to determine, by a legislative instrument, which biosecurity officer decisions under the Biosecurity Act may be made by operation of a computer program; and
authorise the Secretary to arrange for automated decision making for certain sections of the IFC Act.
1.14
The Department of Agriculture (the Department) processes an average of 45 000 commercial cargo referrals each month. In light of this, and the threat of incursion of high risk pests and diseases into Australia (such as African Swine Fever Virus), automated decision-making:
…is crucial for biosecurity and food import control because it allows risk identification and management across a large number of goods and conveyances. Automated decision-making can reduce the burden on importers by enabling fast accurate clearance of goods and conveyances. Further, automated decision-making provides flexibility to ensure the optimisation of resources to respond effectively to existing and emerging risks.
1.15
In support of this view, the Department observed that during the 2018‑19 Brown Marmorated Stink Bug season, biosecurity officers in Assessment Services worked approximately 14 000 hours overtime, which was 'unsustainable but only expected to grow'. The introduction of automated decision‑making will 'help ease this pressure, and there will be no reduction in staffing levels as a consequence of these amendments'.
The exercise of discretion
1.16
According to the bill's EM, in 2004 the Administrative Review Council (ARC) considered automated decision‑making, and drew distinctions between:
the use of expert systems to make non‑discretionary decisions;
the use of expert systems to assist decision makers (while not touching the discretion points in the decision making process); and
fully automating the exercise of discretion.
1.17
The ARC concluded that 'expert systems should not automate the exercise of discretion'. Further, it suggested that attempting to do so created the 'risk of inappropriate fettering of discretion'.
1.18
The EM suggests that, whether made by a person or a computer program, most decisions made under the Biosecurity Act and the IFC Act 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.
1.19
Despite the findings of the ARC, the EM argues that the fettering of discretion, as proposed by the provisions of the bill, is appropriate for the following reasons:
the kind of decisions that are envisaged to be made by computer programs all involve the identification, and management if necessary, of biosecurity or food safety risks. Such an assessment is a technical and scientific process based on objective data and information—for example, what the relevant goods are, what are the associated diseases or pests of concern, and whether there are current outbreaks or prevalence of the disease and their locations;
in most cases, it is desirable to stakeholders in this regulatory context that identical information inputs should not lead to different outcomes; and
the operational environment of high volumes of goods and people entering Australia, and the potential for an immensely negative impact on Australia’s agriculture, environment and economy if biosecurity risk or food safety is not effectively identified.
1.20
The Department reiterated these views in its submission, noting that the type of decisions intended to be automated are those which have limited, if any, scope for discretion. Biosecurity officers would continue to be responsible for decisions not suitable for automation, including those that require an evaluation of information.
1.21
Further, the Department argued that the amendments would ensure that Australia's biosecurity system 'continues to keep pace with the changing biosecurity environment'. The Department continued that the:
Use of automated decision‑making allows risk identification and management across a large number of goods and conveyances, and ensures that resources are optimised for effective management of existing and emerging risks.