Migration Amendment (Australia's Engagement in the Pacific and Other Measures) Bill 2023 [2023] AUSStaCSBSD 31 (8 March 2023)

• Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023
• Significant matters in delegated legislation
• Automated decision-making22

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Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Bill 2023

Purpose	This bill seeks to amend the Migration Act 1958 to allow the minister to implement a visa pre-application process, involving random selection of eligible persons who will then be permitted to apply for a relevant visa
Portfolio	Home Affairs
Introduced	House of Representatives on 16 February 2023

Significant matters in delegated legislation
Automated decision-making^[22]

1.26 The bill proposes to establish a new framework for a visa pre-application process. However, much of the detail of this framework is left to delegated legislation. The bill seeks to insert proposed subsection 46C(1) into the Migration Act 1958. Proposed subsection 46C(1) provides that the Minister may arrange for a visa

pre-application process to be conducted in relation to one or more visas, if the necessary regulations are in force. The explanatory memorandum explains that a visa

pre-application process involves the random selection of eligible persons who can then apply for a relevant visa.^[23]

1.27 Proposed subsection 46C(14) provides that the Minister may, by legislative instrument, determine rules that apply in relation to the conduct of a specified visa pre-application process. Proposed subsection 46C(15) provides that a determination made under subsection 46C(14) must deal with eligibility requirements for the registration of a person as a registered participant in a visa pre-application process and also provides a list of non-exhaustive factors the Minister may include. These factors relate to arrangements for the conduct of the visa pre-application process and the registration of persons as registered participants, including the manner in which a person may register. Paragraph 46C(21)(c) provides that an eligibility requirement for the registration of a person as a registered participant must be objective.

1.28 The bill also seeks to insert additional provisions that a ministerial determination may deal with. Proposed subsection 46C(17) provides that a determination may provide for different rules for different visa pre-application processes. Proposed subsection 46C(18) provides that a determination may provide for different rules for different classes of person. Proposed subsection 46C(11) would allow the Minister to arrange for the use of a computer program to conduct a visa

pre-application process or part of a visa pre-application process.

1.29 The committee's view is that significant matters should generally be included in primary legislation unless a sound justification for the use of delegated legislation is provided. A legislative instrument made by the executive is not subject to the full range of parliamentary scrutiny inherent in bringing forward proposed legislation in the form of a bill. The committee considers that leaving significant elements of a legislative scheme to delegated legislation may considerably limit the ability of Parliament to exercise appropriate oversight of legislative schemes. Broad powers providing for the executive to set out the key details of a visa application scheme are one such significant matter. This is particularly so considering that it is proposed to use a computer program to make decisions under the scheme.

1.30 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 a computer rather than by a person—may lead to legal error. Automated systems for making non-discretionary decisions may not raise similar concerns in relation to legal error,^[24] however, even in these cases, automated processes may reduce transparency. In addition, non-discretionary decisions which are made through automated processes should generally still be subject to appropriate safeguards, such as a requirement that a person may substitute a decision made by an automated process that they consider on reasonable grounds to have been made incorrectly.

1.31 Given these concerns, the committee considers that the explanatory materials for bills which propose to allow for the use of automated processes should explain whether all of the relevant decisions are non-discretionary and what safeguards are in place in relation to the use of automated process. The committee also considers that it is generally more appropriate to include safeguards relating to the use of automated processes within a bill, rather than within delegated legislation.

1.32 In this case, the decision to be made (who can apply for a particular visa) is intended to be a randomised process, and the eligibility requirements for the registration of a person must be objective. The relevant decisions are therefore intended to be non-discretionary.

1.33 The explanatory memorandum does not explain why it is proposed to include this process in delegated legislation, though in relation to a number of provisions the explanatory materials raise a desire for flexibility in approach.^[25] In relation to the use of a computer program, the explanatory memorandum states that:

...the initial registration to participate in a ballot will require completion of an online form, and the random selections of registered participants in the ballot will be undertaken by a computer program. Officers of the Department of Home Affairs will determine the number and timing of the occasions when computer selections will occur and also the number of persons to be selected by the computer on each occasion. Operating on the basis of those instructions, the computer will undertake random selections from among the persons who are registered participants in the ballot when the selections occur.
...
New subsection 46C(15) provides that a ministerial determination must deal with eligibility requirements for the registration of a person in a ballot. These will be objective matters such as the kind of passport that must be held and the person’s age.^[26]

1.34 While the visa pre-application process is intended to be non-discretionary and therefore may be appropriate to automate, the committee nevertheless considers that safeguards in relation to the development and application of the automated process should be included in the bill rather than relying on delegated legislation. This is particularly so given the significant impact this decision could have on individuals and their ability to apply for potentially any category of visa.

1.35 In line with the Commonwealth Ombudsman's Automated Decision-making Better Practice Guide,^[27] not only is integrity of the system important, but transparency and accountability of the system is necessary. Given this, the absence of any safeguards on the face of the bill in relation to the use of automated processes is a matter of concern to the committee.

1.36 The committee notes that, aside from the requirement in proposed paragraph 46C(21)(c) that the eligibility requirements for the registration of a person as a registered participant must be objective, there is nothing further in the bill to ensure the integrity of any automated system. Further, there is no guidance in the explanatory memorandum on how a computerised system may operate or what kind of transparency mechanisms are in place to ensure the correct running of the system.

1.37 The committee considers that given the significance of the proposed scheme on an individuals' ability to apply for various categories of visa, further safeguards on the operation of automated processes should be included within the bill itself and could include:

• ensuring publicly available information about the use and operation of the automated system;

• allowing a departmental officer to review data inputted to ensure any mistakes made by an individual do not preclude them from eligibility; and

• ongoing monitoring and evaluation of the computer system to ensure it is operating as intended.

1.38 It is further noted that while the bill has been introduced in anticipation of the creation of the Pacific Engagement Visa, the bill provides for the power to undertake visa pre-application processes in relation to any visa. The committee considers that the rationale for allowing the visa pre-application process to apply to any visa has not been sufficiently explained within the bill's explanatory materials. The committee's concerns in relation to the inclusion of significant matters in delegated legislation are heightened given the potentially broad application of the regulation making powers introduced by the bill.

1.39 The committee requests the minister's detailed advice as to:

• why it is considered necessary and appropriate to include much of the detail of the operation and requirements of a visa pre-application process in delegated legislation;

• what safeguards are in place, if any, to ensure that automated decisions will be made appropriately and not subject to legal error;

• whether the bill can be amended to include specific safeguards that ensure the transparency and integrity of any automated system used; and

• why it is considered necessary to provide for such a general power to create visa pre-application processes in relation to any category of visa.

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[22] Schedule 1, item 3, proposed section 46C and subsection 46C(11). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(iii) and (iv).

[23] Explanatory memorandum, p. 2.

[24] Commonwealth Ombudsman, Automated Decision-making Better Practice Guide, March 2020, p. 9.

[25] Explanatory memorandum, pp. 8 and 10.

[26] Explanatory memorandum, p. 9.

[27] Commonwealth Ombudsman, Automated Decision-making Better Practice Guide, March 2020, pp. 25-27.