Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 205 (20 November 2020)

• Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020
• Computerised decision making20

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Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020

Purpose	This bill seeks to amend the Radiocommunications Act 1992 to implement recommendations of the 2015 Spectrum Review (the Spectrum Review) and fulfil the Australian Government’s commitment to modernise the legislative framework for spectrum management
Portfolio	Communications, Cyber Safety and the Arts
Introduced	House of Representative on 27 August 2020
Bill status	Before the Senate

Computerised decision making^[20]

2.60 The committee initially scrutinised this bill in Scrutiny Digest 12 of 2020 and requested the minister's advice.^[21] The committee considered the minister's response in Scrutiny Digest 14 of 2020 and requested 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 and powers that may be exercised by computers on the face of the primary legislation;

• provide that only decisions and powers prescribed in a legislative instrument may be made or exercised by computers; and/or

• provide that the ACMA must, before determining that a type of decision can be made or power may be exercised 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 or power to be exercised by a computer rather than a person.^[22]

2.61 The committee also requested that the minister lodge an addendum to the bill's explanatory memorandum to include information that the minister provided to the committee in his letter of 2 October 2020.

Minister's response^[23]

2.62 The minister advised:

The Committee has requested that an Addendum to the Explanatory Memorandum be tabled, including the key points from the information from my letter of 2 October 2020 concerning interim bans and amnesties, computerised decision making, and the delegation of administrative power to accredited persons. I thank the Committee for its review of these matters and an Addendum to the Explanatory Memorandum will be tabled in the Parliament as soon as possible addressing these matters.
[...]
I have given careful consideration to the additional matters raised by the Committee. Noting the matters I raised in my letter of 2 October explaining the rationale for the provision as presented in the Bill, which will be included in the Addendum to the Explanatory Memorandum, I do not intend to bring forward amendments of this kind at this time.

Committee comment

2.63 The committee thanks the minister for this response. The committee welcomes the minister's advice that an addendum to the explanatory memorandum will be tabled, which will include the key informational points from the minister's letter of 2 October 2020 in relation to interim bans and amnesties, computerised decision-making and the delegation of administrative power to accredited persons.

2.64 The committee thanks the minister for tabling the addendum to the explanatory memorandum in the House of Representatives on 11 November 2020.

2.65 The committee also notes the minister's advice that he does not intend to bring forward any amendments to proposed section 305A as requested by the committee. The committee reiterates its scrutiny concerns in relation to the power for computerised decision-making in proposed section 305A of the bill. 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.

2.66 The committee acknowledges that there is merit in improving the timeliness and accuracy of decision-making, and notes there are mechanisms in place to ensure that errors made by the operation of a computer program can be quickly corrected. However, from a scrutiny perspective, the committee does not consider that the minister's response has provided an adequate justification for allowing all of the ACMA's administrative functions to be assisted or automated by computer programs (other than decisions reviewing other decisions).

2.67 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of permitting the AMCA to arrange for the use of computer programs for any decisions, powers or obligations it has under the Radiocommunications Act 1992 and any legislative instruments made under the Act.

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[20] Schedule 8, item 10, proposed section 305A. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).

[21] Senate Scrutiny of Bills Committee, Scrutiny Digest 12 of 2020, pp. 12-14.

[22] Senate Scrutiny of Bills Committee, Scrutiny Digest 14 of 2020, pp. 5-8.

[23] The minister responded to the committee's comments in a letter dated 29 October 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 15 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest