2.1
The Agriculture Legislation Amendment (Streamlining Administration) Bill 2019 (the bill) amends the Biosecurity Act 2015 (Biosecurity Act) and the Imported Food Control Act 1992 (IFC Act) to allow for automated decision‑making.
2.2
The bill contains a single schedule of amendments, the provisions of which are detailed below.
Amendments to the Biosecurity Act
Automated decision-making
2.3
Item 1 of the bill inserts new section 541A into the Biosecurity Act, and provides the power for the Director of Biosecurity to arrange for certain decisions to be made by computer programs.
2.4
The EM explains that allowing a computer program to make certain decisions is 'intended to improve the administrative efficiency for stakeholders, including importers, as well as for the Government'. Further, this new section will provide the flexibility to adapt to developments in technology, which may assist in computerised decision‑making and in better responding to threats.
2.5
Proposed subsection 541A(1) provides that the Director of Biosecurity (the Director) may arrange for the use, under the Director's control, of computer programs for any purpose for which a biosecurity officer may or must:
(a)
make a decision under a relevant provision of the Biosecurity Act, specified in a determination made under subsection (2) (see below); or
(b)
exercise any power or comply with any obligation related to making a decision referred to in paragraph (a); or
(c)
do anything else related to making a decision referred to in paragraph (a), or related to exercising a power or complying with an obligation referred to in paragraph (b).
2.6
Subsection 541A(2) provides that the Director may, by legislative instrument, determine the kinds of decisions that may be made by the operation of a computer program under an arrangement made under subsection 541A(1). Subsection 541A(2) also allows the Director to determine the classes of persons that may use such a computer program, and the conditions of that use.
2.7
Under subsection 541A(2), the classes of persons who may use a computer program are those who would otherwise be authorised to carry out biosecurity activities under the Biosecurity Act—for example, biosecurity industry participants that operate under an approved arrangement, under the Biosecurity Act. Under the approval conditions for such an arrangement, a biosecurity industry participant is required to meet specific training and accreditation requirements.
2.8
The EM makes clear that a person who operates a computer program is not a decision maker, as 'the information that is input into the computer program enables an electronic decision to be made by the computer program utilising business rules'.
2.9
The Department explained that the types of decisions which could be made by electronic means would be limited to those of a 'scientific or technical nature and based on objective data and information'. The Department expanded on this point and provided examples of such automated decisions, which include:
…decisions based on the type of goods, the associated diseases or pests of concern, whether there are current outbreaks or prevalence of the disease, and their locations. Due to their scientific and technical nature, these types of decisions involve the application of detailed business rules, and generally involve limited discretion even when the decision is made by a human decision‑maker. The nature of and limited discretion involved in these kinds of decisions makes them appropriate for the application of automated decision‑making.
2.10
Such an approach was supported by the Queensland Department of Agriculture and Fisheries (QDAF), which argued that automated decision making should, in the first instance, only be used for 'simple, frequent, repeatable decisions that have a low biosecurity risk', and not for high risk pathways.
2.11
The Department further argued that as the automated decision‑making process would improve efficiency, particularly with the management of large workloads, it was not anticipated that there would be any change in cost associated with these decisions.
Relevant provisions
2.12
The EM explains that under proposed paragraph 541A(1)(a), only a decision made under a relevant provision, which has been specified in a determination made for the purposes of subsection 541A(2), can be subject to automated decision making. The EM continues that as the determination will be a disallowable instrument, it will be subject to parliamentary scrutiny. The EM argues that using a determination to specify those decisions which can be made by an automatic process provides for the:
…flexibility to take into account rapid changes in technology and changes in risks, while striking a balance by ensuring that Parliament retains scrutiny of the determination.
2.13
Subsection 541A(9) specifies the provisions under the Biosecurity Act which are 'relevant provisions' for the purposes of proposed section 541A. According to the EM, these relevant provisions are based on a technical and scientific identification of biosecurity risk, such as:
a direction to provide information or answer questions (section 126 of the Biosecurity Act);
the requirement to produce documents relating to goods, under section 127 of the Biosecurity Act; or
the movement of goods under the direction of a biosecurity officer, pursuant to section 128 or 132 of the Biosecurity Act.
2.14
Further, decisions which require the written approval or consent of the Director are not intended to be determined as decisions suitable for automated decision‑making.
2.15
The Department submitted that the use of a legislative instrument to determine the decisions subject to automated decision‑making may:
…provide flexibility for future technological and system developments, meaning that the Bill is expected to provide a platform for immediate and ongoing improvement in regulatory decision‑making.
2.16
The EM clarifies that there is no intention to make determinations in relation to all relevant provisions; rather, determinations will be developed for decisions under provisions where there is a 'pressing need or compelling benefits for using automated decision‑making'.
2.17
To this end, QDAF offered its general support for the bill, and supported the proposed changes 'if the computer based decision framework is used in non‑discretionary decisions'. QDAF continued that it also supported:
….discretionary decisions that are supported by detailed, well tested and risk assessed business rules. It is also critical that this and other principles set out in the Administrative Review Council (ARC) report are adhered to, where this is consistent with maintaining biosecurity and food health and safety standards.
2.18
QDAF suggested that regular and frequent spot audits on automated decisions be implemented, particularly for high risk pathways.
Decision‑making processes
2.19
Subsection 541A(3) of Schedule 1 of the bill provides that the Director of Biosecurity must take reasonable steps to ensure that decisions made by the operation of a computer program remain consistent with the objects of the Biosecurity Act. This includes providing for the management of biosecurity risk, and giving effect to Australia's international rights and obligations.
2.20
Under proposed subsection 541A(4), the Director must take reasonable steps to ensure that an electronic decision is 'based on grounds on the basis of which a biosecurity officer could have made that electronic decision'. The subsection continues that 'an electronic decision may be made without any state of mind being formed in relation to a matter to which the decision relates'.
2.21
Pursuant to proposed subsection 541A(5), the Director is taken to have:
(b)
exercised a power or complied with an obligation; or
(c)
done something else related to the making of a decision or exercise of a power or compliance with an obligation;
that was made, exercised, complied with or done by the operation of a computer program, under an arrangement made under subsection 541A(1), as if the Director were a biosecurity officer.
2.22
According to the EM, the above provision will ensure that there is a decision‑maker for the purposes of judicial, internal or Administrative Appeals Tribunal (AAT) reviews. Further, it ensures that there is a decision‑maker who will have responsibility for any legislated requirements to provide a statement of reasons for an electronic decision.
2.23
However, subsection 541A(6) makes it clear that a decision that the Director is taken to have made because of subsection 541A(5) is not a decision made by the Director personally for the purposes of sections 576 and 578 of the Biosecurity Act (relating to the internal review of reviewable decisions, and review by the AAT). In relation to these provisions, the EM clarifies that:
Subsection 541A(6) has the effect that where the Director of Biosecurity is taken to have made an electronic decision which is a reviewable decision, the decision is subject to internal review under section 576. As with other reviewable decisions made by biosecurity officers, no application for review by the Administrative Appeals Tribunal of an electronic decision which is a reviewable decision can be made under section 578 until there has been internal review under section 576.
Substituted decisions
2.24
Proposed subsection 541A(7) provides that a biosecurity officer may make a decision in substitution for an electronic decision, if a biosecurity officer is satisfied that the electronic decision is not consistent with the objects of the Biosecurity Act, or if another decision would be more appropriate in the circumstances.
2.25
The EM observes that this provision will allow biosecurity officers to respond to any system or data input errors, and ensure decisions remain consistent with the objects of the Biosecurity Act. It further ensures that:
…a decision is able to be substituted where another decision would be more appropriate in the circumstances. The circumstances may include changed circumstances or new information becoming available after the electronic decision was made.
2.26
It is made clear in the EM that if a substituted decision is a reviewable decision, then the internal review mechanisms available under the Biosecurity Act will remain available in relation to the substituted decision, as do the AAT review rights, should the matter progress to that stage.
2.27
If a biosecurity officer does substitute a decision for an electronic decision, the bill does not require that the biosecurity officer consult with a more senior officer, despite this being considered best practice. Under proposed subsection 541A(7), it does remain open to a biosecurity officer to consult with a more senior officer, however 'it is not considered appropriate to require that such consultation always take place'.
2.28
The EM argues that, due to their training and qualifications, biosecurity officers are suitable persons to make decisions. Further, consultation is not required in such circumstances because:
…in this sector, importers, operators of ships and aircraft and related ground transport operators value responsiveness and quick decision‑making, and it may not always be practically feasible in this operational environment to always require a senior officer be consulted.
2.29
QDAF was of the view that there should be tracking of any decisions to reverse an automated decision, in order to continually improve the automated system.
Other provisions
2.30
Proposed subsection 541A(8) provides that:
An electronic decision in relation to a thing is of no effect to the extent that it is inconsistent with an earlier decision (other than an electronic decision) made in relation to the thing by a biosecurity officer or the Director of Biosecurity under this Act.
2.31
According to the EM, this provision ensures that electronic decisions do not contradict earlier, human-made decisions. In addition, the EM explains that:
Excluding electronic decisions from earlier decisions is intended to ensure that a new electronic decision is not bound by previously made erroneous electronic decisions, to avoid perpetuating the error.
2.32
Items 2 to 9 of the bill make a number of consequential amendments to the Biosecurity Act, to reflect the provisions for automated decision‑making and the operation of those functions—in particular, those functions which must not be subdelegated.
2.33
For example, subsection 542(3) of the Biosecurity Act provides a table detailing those provisions of the Act which must not be subdelegated. Item 6 of the bill inserts new item 26A into that table, stipulating that arrangements for the use of computer programs for purposes related to making certain decisions, and any other power of function conferred by section 541A, cannot be subdelegated.
2.34
The EM explains that, when read in conjunction with the existing provisions at sections 542(1), (2) and (3) of the Biosecurity Act (relating to delegation), Item 6 of the bill ensures that the power to arrange for the use of a computer program to make certain decisions, and other powers and functions conferred by proposed section 541A, may not be delegated below the level of an SES employee.
Amendments to the Imported Food Control Act
Automated decision‑making
2.35
The amendments to the IFC Act allow for decisions in relation to the issue of food control certificates and imported food inspection advices, and the manner for dealing with food that has been identified as failing food, to be made by computer program.
2.36
Similarly to the amendments to the Biosecurity Act, Item 11 of the bill inserts a new Division 4, section 20A into the IFC Act, relating to computerised decision‑making.
2.37
It is envisaged that these amendments will improve administrative efficiency for food importers and for the Secretary, while recognising the changes that have taken place in technology to assist Australia's imported food systems. The EM goes on to state that:
Computerised decision-making will enhance the operation of the Imported Food Control Inspection Scheme (the Scheme) by enabling routine decisions to be made by a computer programs [sic] and allowing allocation of authorised officers towards imported food that may pose a risk to public health and safety.
2.38
Proposed subsection 20A(1) provides that the Secretary may arrange for the use (under the Secretary's control) of computer programs for any purpose which an authorised officer may, or must, make a decision or exercise a power under certain provisions of the IFC Act.
2.39
Food control certificates are issued under section 12 of the IFC Act. The EM contends that enabling the decision to issue a food control certificate to be made by a computer program allows for administrative efficiencies. These efficiencies will be achieved by issuing automated food control certificates for all food not required to be inspected under the Imported Food Control Inspection Scheme. The EM makes clear that foods that are required to be inspected will continue to receive a food control certificate from an authorised officer.
Decision‑making processes
2.40
Subsection 20A(2) as proposed by the bill provides that the decision made by the computer program is taken to be a decision made by the Secretary. As with the changes to the Biosecurity Act, this provision ensures that there is a decision‑maker for the purposes of judicial, internal or AAT reviews of an electronic decision, and that there is a decision‑maker who will have responsibility for any legislated requirements to provide a statement of reasons for an electronic decision.
2.41
Proposed subsection 20A(3) stipulates that the Secretary must take reasonable steps to ensure that electronic decisions, made under section 20A(1), are consistent with the object of the IFC Act—namely, the compliance of food imported into the country with Australian food standards, and the requirements of public health and safety.
2.42
The EM suggests that subsection 20A(4) provides a safeguard, in that the Secretary must take reasonable steps to ensure that an electronic decision is based on grounds on the basis of which an authorised officer could have made that decision. The EM notes that this provision goes on to confirm that:
…an electronic decision may be made without any state of mind being formed in relation to the matter to which the decision relates.
Substituted decisions
2.43
The bill will insert new subsection 20A(5) into the IFC Act, providing that an authorised officer may make a decision in substitution for an electronic decision, if an authorised officer is satisfied either that the electronic decision is not consistent with the object of the IFC Act, or that another decision is more appropriate in the circumstances (including if a fault in the computerised decision‑making process is identified). The EM goes on to state that:
The Secretary is an authorised officer under the Act and can "step in" if it is considered appropriate or necessary for him or her to do so.
However, it is expected that on most occasions, the basis for the authorised officer substituting a decision will be that the business seeking clearance has simply provided more information.
2.44
For the same reasons provided in relation to the Biosecurity Act amendments, section 20A(5) of the IFC Act will not require an authorised officer to consult with a more senior officer in the event an automated decision is substituted. The EM advises that this is because the sector values 'responsiveness and quick decision‑making', and that would not always be considered appropriate that such consultation always take place.
2.45
Subsection 20A(6) will clarify that a decision in relation to food is of no effect, to the extent that it is inconsistent with an earlier decision (other than an electronic decision) made in relation to the food by an authorised officer under the IFC Act.
Other provisions
2.46
Items 12 to 14 of the bill make a number of consequential amendments to the IFC Act, particularly in relation to the delegation of the Secretary's power. Item 14 inserts new subsection 41(2) into the IFC Act, to make clear that the powers and functions which will be provided to the Secretary under new section 20A can only be delegated to an SES employee (including an acting SES officer).
Committee views
2.47
It is the committee's view that the Australian Government is committed to robust and comprehensive measures which address ongoing biosecurity risks and food safety threats, and which protect Australia's important and unique agricultural and food industries and the economy more broadly.
2.48
While maintaining protection from the risks associated with disease and pest incursions and failed food imports, the committee is of the view that the Government is ensuring that the processes for identifying and managing these risks remain responsive and flexible, and able to adapt to ongoing changes in technology.
2.49
Computerised decision‑making, as proposed by this bill, presents a number of benefits to stakeholders who engage with the importation of a large volume of various products. For example, it will allow more efficient clearance processes, and reduce the administrative burden on both importers and biosecurity officers.
2.50
Further, the automation of decision‑making for a limited number of administrative actions may provide biosecurity and other authorised officers with more time and resources to spend on the ground, focusing on those areas where there are existing threats and emerging risks to Australia's biosecurity.
2.51
The committee is also of the view that the bill provides a number of safeguards against any potential inappropriate use of the automated decision‑making process. These safeguards including limiting the classes of persons who can use a computer program to make an automated decision, limiting the provisions of the Biosecurity Act and the IFC Act to which an automated decision can apply, ensuring that decision review rights are maintained and that automated decisions can be overridden by officers when considered appropriate to do so.
2.52
Further, the bill makes clear that automated decisions must remain consistent with the objects of the Biosecurity Act—namely, the management of biosecurity risk and giving effect to Australia's international rights and obligations, and with the IFC Act in relation to imported food standards and adherence to the requirements for public health and safety.
2.53
In addition to these important safeguards, the bill's provisions allow for automated decision‑making for biosecurity to remain flexible and reactive to developing technologies, which presents numerous benefits to industry, importers and government.
2.54
For these reasons, the committee recommends that the bill be passed.
2.55
The committee recommends that the Agriculture Legislation Amendment (Streamlining Administration) Bill 2019 be passed.
Chair