This bill contains elements of two previous bills, which lapsed at the dissolution of the previous Parliament.
The Australian Greens supported the Agricultural and Veterinary Chemicals Legislation Amendment (Operational Efficiency) Bill 2017 as introduced, and fundamentally support the concept of an efficient and effective pesticide and veterinary medicine regulator. It is in the interest of all parties, whether farmers, chemical companies, public health advocates and experts or environmentalists, that our chemical regulator works well. The Australian Greens have, however, significant concerns about this bill.
APVMA Board and governance
As noted in the debate in the Senate on one of the previous bills, the Australian Greens do not support the proposal in relation to the APVMA Board. In particular, we believe greater detail is required to justify the need for the new Board, and appropriate provisions are required to ensure community engagement.
The Departmental submission on the current bill indicates that the Minister will have the power to "direct the board in the performance of its functions". Given the Minister currently has existing powers to direct the APVMA, it is unclear how creating a board structure that is appointed and can be directed by the Minister will create genuinely independent governance for the APVMA. There appear to be risks in simply introducing a duplicative and expensive additional layer of management that have not been fully addressed.
The Australian Greens support comprehensive reform to the APVMA’s governance. That reform, however, should be comprehensive, and not done piecemeal. Most importantly, we have not seen any indication in the Department’s submission that environmental risks will be a priority for the Board, or that the broader community has been adequately consulted about these governance changes.
Simplifying processes for chemicals of low regulatory concern
A particular set of concerns have been raised by the Community and Public Sector Union - representing those workers who are likely to understand the system best. Among the CPSU’s concerns are that simplifying processes for chemicals of low regulatory concern may create additional risks. CPSU members have indicated that:
…it may difficult to tell which products are of low concern, particularly where efficacy is key to their use. If a separate process is to be created, it needs to be very specific as to what chemicals or products are of low concern and why.
The CPSU also expressed the view that clarification of what information is needed on the label may lead to a reduction in information.
Outsourcing of responsibility from APVMA
The Australian Greens did not support the Agricultural and Veterinary Chemicals Legislation Amendment (Streamlining Regulation) Bill 2018. Among other concerns, a key issue was the risks associated with accrediting third-party assessors. This would have outsourced a central responsibility of the APVMA, creating direct conflicts of interest, a significant likelihood of regulatory capture, and putting the community and environment at risk. While we are pleased to see that the Coalition has abandoned this approach, a number of concerns about the current bill remain.
In particular, the Australian Greens echo the concerns of the CPSU about "changes that may reduce the role of the APVMA through de facto increased outsourcing of responsibility to companies to self-manage for safety". The Australian Greens agree that the APVMA is the appropriate repository for expertise in chemistry, manufacturing, safety and efficacy on this issue. We do not support approaches that provide corporations with more power in how and what they put on labels.
Removal of requirement to prepare an operating plan
The Australian Greens are also concerned at the removal of the requirement for the APVMA to prepare an annual operating plan. As the CPSU noted in its submission, it is unclear "why the simplification of corporate reporting requirements and annual returns is necessary". It is appropriate that reporting requirements be relevant and timely, but as the CPSU submission notes, the current reporting requirements are "already relatively simple", suggesting that they only need to be more relevant, rather than removed.
Automated decision making
The Australian Greens are also concerned that the issues raised by the Scrutiny of Bills Committee, in relation to the use of computer programs in decision making, have not been addressed. In its 2004 report, Best-practice principles for automated assistance in administrative decision making, the Administrative Review Council identified a number of principles to guide the use of automation in administrative decision making. Among these were that:
Independent scrutiny and oversight of expert systems should focus on ensuring that the administrative law values are reflected in the decision-making process.
While the Minister advised that mechanisms would be put in place to ensure only appropriate decisions would be made by computers, we note concerns raised in the Scrutiny of Bills Committee that the primary legislation did not limit the types of decisions that could be made by computers. The lack of safeguards around this issue in the primary legislation is an issue of concern.
Recommendation
The Australian Greens recommend that the Bill not be supported in its current form.
Australian Greens