Agricultural and Veterinary Chemicals Legislation Amendment (Australian Pesticides and Veterinary Medicines Authority Board and Other Improvements) Bill 2019 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 141 (13 November 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 2

Commentary on ministerial responses

2.1 This chapter considers the responses of ministers to matters previously raised by the committee.

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
Bill status	Before House of Representatives

Computerised decision-making^[1]

2.2 In Scrutiny Digest 7 of 2019 the committee requested the minister's 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.^[2]

Minister's response^[3]

2.3 The minister advised:

Authorising the APVMA to implement computerised decision-making—where applied properly and with appropriate safeguards—will provide the agency with the flexibility to further streamline services, reduce costs and liberate resources. This will support efforts by the APVMA to provide enhanced services, reduce the length of time for some transactions and generally improve efficiency.
The APVMA's decisions about implementing computerised decision-making will be guided by the best practice principles developed by the Administrative Review Council, outlined in its report Automated Assistance in Administrative Decision Making: Report to the Attorney-General (Report No. 46, 2004), available from the Attorney-General's Department website (arc.ag.gov.au/Publications/Reports/Pages/Reportfiles/ReportNo46.aspx).
This will ensure that decision-making done by or with the assistance of computer systems is consistent with the administrative law values of lawfulness, fairness, rationality, transparency and efficiency. Relevantly, these best practice principles include (but are not limited to) the following in relation to expert systems (automated systems that make or support decisions):

• expert systems that make a decision–as opposed to helping a decision maker make a decision-would generally be suitable only for decisions involving non-discretionary elements (principle 1)

• expert systems should not automate the exercise of discretion (principle 2)

• if expert systems are used as an administrative tool to assist in exercising discretion, they should not fetter the decision maker (principle 3)

• the construction of an expert system, and the decisions made by or with the assistance of expert systems, must comply with administrative law standards (principle 7)

• expert systems should be designed, used and maintained in such a way that they accurately and consistently reflect the relevant law and policy (principle 10).

A key issue guiding the APVMA's implementation will be the distinction between administrative decisions for which the decision maker is required to exercise discretion and those for which no discretion is exercisable once the facts are established. Full automation of the decision-making process is likely to be considered appropriate in the latter case. For example, computerised decision-making might be used for decisions involving completeness checks of applications.
Decisions that require interpretation or evaluation of evidence-such as where fact finding or weighing evidence is required-would not be made by automated systems. Complex decisions such as these will continue to be determined by a human decision maker. For example, decisions that require assessment of technical applications to issue permits, as per the scenario raised by the committee, would not be made by a computer. Such decisions require a decision-maker to take account of a broad and complex range of information and to ensure that all relevant matters are considered, in order to form a particular state of mind as the basis for exercising their judgement.
Review mechanisms provide safeguards to ensure that any automated decision is correct or preferable. For example, the APVMA will be able to substitute a decision for a decision made by a computer program if the APVMA is satisfied that the decision made by the computer program is incorrect. This ensures that if a computer program is not operating correctly, or has produced a decision that the APVMA considers is wrong, the action can be substituted by the APVMA without the need for formal administrative review.
Additionally, the items 37-43 of the Bill have the effect that a decision made by a computer program may be subject to reconsideration (review) by the APVMA and external merits review by the Administrative Appeals Tribunal. These review mechanisms are available for any computerised decision (or a decision by the APVMA in substitution of a computerised decision) and are the same as those available if the decision were made by an APVMA staff member. Judicial review is also available under the Administrative Decisions (Judicial Review) Act 1977.

Committee comment

2.4 The committee thanks the minister for this response. The committee notes the minister's advice that authorising the APVMA to implement computerised decision-making—where applied properly and with appropriate safeguards—will provide the agency with the flexibility to further streamline services, reduce costs and liberate resources.

2.5 The committee also notes the minister's advice that decisions that require interpretation or evaluation of evidence—such as where fact finding or weighing evidence is required—would not be made by automated systems and that these kinds of complex decisions will continue to be determined by a human decision maker.

2.6 The committee further notes the minister's advice that a key issue guiding the APVMA's implementation of computerised decision-making will be the distinction between administrative decisions for which the decision maker is required to exercise discretion and those for which no discretion is exercisable once the facts are established and that there will be appropriate review mechanisms in place to ensure that any automated decision is correct or preferable.

2.7 The committee reiterates 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.

2.8 While noting the minister's advice that there will be appropriate mechanisms in place to ensure that only appropriate decisions will be made by computers, the committee notes that there is no limitation on the types of decisions that will be subject to computerised decision-making on the face of the primary legislation. As a result, from a scrutiny perspective, the committee considers that it may be appropriate for the bill to be amended to:

• limit the types of decisions that can be made by computers thereby enabling the committee and others to evaluate the appropriateness of computerised decision-making by reference to the best practice principles identified in the Administrative Review Council report, Automated Assistance in Administrative Decision Making; and/or

• provide that the APVMA must, before determining that a type of decision can be made by computers, be satisfied by reference to general principles articulated in the legislation that it is appropriate for the type of decision to be made by a computer rather than a person.

2.9 In light of the committee's scrutiny concerns, the committee requests the minister's further advice as to whether the minister proposes to bring forward amendments to the bill to:

• limit the types of decisions that can be made by computers; and/or

• provide that the APVMA must, before determining that a type of decision can be made by computers, be satisfied by reference to general principles articulated in the legislation that it is appropriate for the type of decision to be made by a computer rather than a person.

2.10 The committee also requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

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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] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2019, pp. 1-4.

[3] The minister responded to the committee's comments in a letter dated 30 October 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 8 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest