Agricultural and Veterinary Chemicals Legislation Amendment (Australian Pesticides and Veterinary Medicines Authority Board and Other Improvements) Bill 2019 [2019] AUSStaCSBSD 105 (16 October 2019)

• Agricultural and Veterinary Chemicals Legislation Amendment (Australian Pesticides and Veterinary Medicines Authority Board and Other Improvements) Bill 2019
• Computerised decision-making1

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Chapter 1

Commentary on Bills

1.1 The committee comments on the following bill and, in some instances, seeks a response or further information from the relevant minister.

Agricultural and Veterinary Chemicals Legislation Amendment (Australian Pesticides and Veterinary Medicines Authority Board and Other Improvements) Bill 2019

Purpose	This bill seeks to amend various Acts relating to agricultural and veterinary chemicals to: • provide the Australian Pesticides and Veterinary Medicines Authority (APVMA) and industry with flexibility to deal with certain types of new information provided when the APVMA is considering an application; • enable the use of new regulatory processes for chemicals of low regulatory concern; • provide for extensions to limitation periods and protection periods as an incentive for chemical companies to register certain new uses of chemical products; • simplify reporting requirements for annual returns; • support computerised decision-making by the APVMA; • provide for APVMA to manage errors in an application at the preliminary assessment stage; • enable APVMA to grant part of a variation application under section 27 of the Schedule to the Agricultural and Veterinary Code Act 1994 (Agvet Code); • enable a person to apply to vary an approval or registration that is suspended; • establish civil pecuniary penalties for contraventions of provisions in the Agvet Code and the Agricultural and Veterinary Chemicals (Administration) Act 1992 (Administration Act); • provide APVMA with more comprehensive grounds for suspending or cancelling approvals or registrations; • enable the use of new, simpler processes for assessments based on risk; • simplify the APVMA’s corporate reporting requirements; • amend the mechanism for dealing with minor variations in the constituents in a product; • clarify what information must be included on a label; • correct anomalies in the regulation-making powers for the labelling criteria; • amend the notification requirements in section 8E of the Agvet Code and amend section 7A of the Administration Act to clarify the authority to make an APVMA legislative instrument for residues of chemical products in protected commodities; • amend the definition of expiry date in the Agvet Code; and • establish a governance Board for the APVMA and cease the existing APVMA Advisory Board
Portfolio	Agriculture
Introduced	House of Representatives on 18 September 2019

Computerised decision-making^[1]

1.2 Item 36 seeks to insert new section 5F into Schedule 1 to the Agricultural and Veterinary Chemicals Code Act 1994 (that is, the Agvet Code). The new section would allow the Australian Pesticides and Veterinary Medicines Authority (APVMA) to arrange for the use of computer programs for any purpose for which the APVMA may make a decision, exercise a power or comply with an obligation, or do anything related to those matters.

1.3 The committee notes that administrative law typically requires decision-makers to engage in an active intellectual process in respect of the decisions they are required or empowered to make. A failure to engage in such a process—for example, where decisions are made by computer rather than by a person—may lead to legal error. In addition, there are risks that the use of an automated decision-making process may operate as a fetter on discretionary power, by inflexibly applying predetermined criteria to decisions that should be made on the merits of the individual case. These matters are particularly relevant to more complex or discretionary decisions, and circumstances where the exercise of a statutory power is conditioned on the decision-maker taking specified matters into account or forming a particular state of mind.

1.4 With reference to these matters, the committee notes a number of decisions under the AgVet Code appear to involve complex or discretionary considerations. For example, when deciding whether to issue certain permits, the APVMA may be required to consider or take into account:

• any recommendations made by a co-ordinator;

• whether there are reasonable grounds for issuing the permit pending determination of the application; or

• whether there are exceptional circumstances that justify issuing the permit.^[2]

1.5 In general, the committee considers that it may be appropriate for more complex decisions to be made by a person, rather than by a computer.

1.6 The explanatory memorandum explains that allowing computer programs to take administrative action on behalf of the APVMA will establish a flexible legislative regime that will support future developments in information technology and business processing. It further states that proposed section 5F does not require the APVMA to use computerised decision-making, but rather provides it as an option.^[3]

1.7 The committee acknowledges the importance of ensuring flexibility and adaptability in the agricultural and veterinary chemicals regime, and notes that there are mechanisms in place to ensure that errors made by the operation of computer programs can be corrected.^[4] However, in light of the potential impacts on administrative decision-making outlined above, the committee would expect the explanatory materials to include a more comprehensive justification for allowing APVMA's administrative functions to be performed by computer programs. The committee considers also that it would be useful for the explanatory materials to explain how automated decision-making will comply with relevant administrative law requirements (for example, the requirement to consider relevant matters and the rule against fettering of discretionary power).

1.8 As the explanatory materials do not appear to adequately address this matter, the committee requests the minister's more detailed advice as to:

• why it is considered necessary and appropriate to permit the APVMA to arrange for the use of computer programs for any purpose for which the APVMA may or must take administrative action;

• whether consideration has been given to how automated decision-making processes will comply with administrative law requirements (for example, the requirement to consider relevant matters and the rule against fettering of discretionary power); and

• whether consideration has been given to requiring that certain administrative actions (for example, complex or discretionary decisions) be taken by a person rather than by a computer.

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[1] Schedule 1, item 36, proposed section 5F. The committee draws senators’ attention to this provision pursuant to Senate Standing Orders 24(1)(a)(ii) and (iii).

[2] Subsection 112(1) and paragraphs 112(2)(f) and (g) of the AgVet Code.

[3] Explanatory memorandum p. 29.

[4] For example, proposed subsection 5F(3) would permit the APVMA to substitute a decision for a decision made by a computer program, if satisfied that the computer's decision was incorrect. Further, all decisions made by a computer program would be taken to be decisions made by the APVMA, and would consequently be subject to the same review processes.