Migration Amendment (Australia's Engagement in the Pacific and Other Measures) Bill 2023 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 69 (30 March 2023)

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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
Bill status	Before the Senate

Significant matters in delegated legislation
Automated decision-making^[27]

2.62 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.

2.63 In Scrutiny Digest 2 of 2023 the committee requested the minister's advice as to:

2.64 The Minister for Home Affairs (minister) advised that it is necessary and appropriate to include the detail of the operation and requirements of a visa pre-application process in delegated legislation because of the requirement for flexibility. As the visa pre-application process in the form of a ballot will be a novel methodology, the minister considers that it would be inappropriate to lock down the detailed eligibility requirements or procedures surrounding the ballot within the Migration Act 1958 (Migration Act).

2.65 The minister further advised that the migration system needs to be adaptable and responsive to economic changes and the policies of the Australian Government of the day, with adaptation and response occurring as quickly as possible. The minister advised that primary legislation is not suitable for this purpose.

2.66 The minister outlined that the use of regulations to prescribe criteria for an application for classes of visa is consistent with the structure of the Migration Act. The minister considered that this does not present a loss of accountability to the Parliament as the ministerial determinations are subject to disallowance.

2.67 In relation to the existence of safeguards to ensure automated decisions will be made appropriately and not subject to legal error, the minister advised that there does not appear to be any risk of legal error in the process of automation as the eligibility requirements, which will be few in number, are required to be objective (for example age and passport held) and the process of random selection will involve a simple algorithm. As such, it does not appear necessary to provide for legislative safeguards to ensure appropriate decision-making or to avoid legal error.

2.68 In relation to the existence of safeguards to ensure transparency and integrity of any automated system used, the minister advised that the use of an automated process to conduct the random selections is itself an assurance of transparency and integrity, in that it eliminates manual intervention in the process. The operation of the computer system will be subject to standard quality assurance processes within the Department of Home Affairs and the Department's operations are subject to review by the Australian National Audit Office.

2.69 In relation to why it is considered necessary to provide for a general power to create a visa pre-application process in relation to any category of visa, the minister advised that the use of a ballot is an accepted part of immigration systems around the world including the United States and New Zealand, and the methodology has potential for use in visas where the number of eligible applications greatly exceeds the number of places available under the visa program. Any ballot created will be subject to necessary, disallowable future amendments to the Migration Regulations 1994 (Migration Regulations). The minister listed a number of benefits of a ballot to select eligible visa applications. These are outlined in page 3 of the explanatory memorandum to the bill.

2.71 The committee notes the minister's advice that delegated legislation is appropriate and necessary to establish the visa pre-application process because flexibility is required, particularly given this is a new process, and the Parliament can still consider the instruments as they are subject to disallowance.

2.72 However, the committee does not consider the need for flexibility and the need for responsiveness to be an appropriate reason to include significant matters in delegated legislation in this context. On the contrary, the committee considers it is particularly important for new legislative schemes to be included within primary legislation to ensure adequate oversight and scrutiny over the proposed scheme. While the Parliament retains the ability to disallow instruments, a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill and may considerably limit the ability of the Parliament to exercise appropriate oversight over the new visa pre-application process.

2.73 The committee further does not consider that because the Migration Act and Migration Regulations provide for the making of delegated legislation to determine eligibility requirements for visas that this is how the visa pre-application scheme must be made, particularly given this is a new process which is proposed to be introduced for any class of visa.

2.74 The committee notes the minister's advice that further safeguards are not considered necessary as there does not appear to be a risk of legal error as the decisions are non-discretionary, limited to few factors and will involve a simple algorithm. The committee further notes the minister's advice that the use of an automated system in itself provides for transparency and integrity of the decision-making process and is subject to internal quality assurance.

2.75 The committee, however, reiterates that while the risk of legal error may be low where automated non-discretionary decisions are being made, there may be errors or unintended effects within the computerised system itself. Safeguards are necessary to ensure that these risks are minimised and protected against, for example 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. These safeguards should be included within the bill itself rather than relying on delegated legislation.

2.76 In Scrutiny Digest 2 of 2023, the committee provided some examples of safeguards that could be included within the bill, for example:

2.77 The committee considers that any future review of the operation of this scheme, or the establishment of a similar scheme, should consider the inclusion of appropriate safeguards within primary legislation to ensure the appropriateness, transparency and integrity of the scheme, and particularly the use of automated systems.

2.78 The committee considers that delegated legislation, and non-legislative guidance, made in relation to the visa pre-application process should include appropriate safeguards, including to ensure oversight over automated decisions. Any future review of the operation of the scheme should consider the inclusion of these safeguards within primary legislation.

2.79 The committee otherwise draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of including significant matters within delegated legislation, in this case a new visa pre-application process with broad application to any category of visa in circumstances where few safeguards relating to the oversight of the process have been included within the bill.

2.80 The committee draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

[27] 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).

[29] The minister responded to the committee's comments in a letter dated 23 March 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 4 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest .

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests