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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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The bill seeks to provide for the collection of levies and charges imposed
by, or under, the Agriculture (Biosecurity Protection) Levies Bill 2024 and the
Agriculture (Biosecurity Protection) Charges Bill 2024.
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Portfolio
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Agriculture, Fisheries and Forestry
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Introduced
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House of Representatives on 28 February 2024
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Bill status
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Before the Senate
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2.48 Clause 20 of the bill seeks to empower a compliance officer to exercise a range of monitoring powers under Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act) in relation to the provisions of the bill or the rules; or an offence against the Crimes Act 1914 (Crimes Act) or the Criminal Code 1995 (Criminal Code) that relates to the bill or its rules.
2.49 Subclause 20(10) seeks to provide that a compliance officer can be assisted by other persons in carrying out their duties or functions under the Regulatory Powers Act in relation to the bill. Subclause 20(11) seeks to provide that, in executing a monitoring warrant, both an authorised person and a person assisting can use such force against things as is necessary and reasonable in the circumstances.
2.50 Clause 21 of the bill seeks to provide a mirroring provision enabling the investigatory powers in Part 3 of the Regulatory Powers Act to apply in relation to the bill’s offence and civil offence provisions, and offences against the Crimes Act or the Criminal Code that relate to this bill or its rules.
2.51 Clause 23 of the bill seeks to provide that the following provisions of the bill are subject to an infringement notice under Part 5 of the Regulatory Powers Act:
• subclauses 17(1), (2), (3) or (4) (penalties for failure to give return or notice under the rules);
• subclauses (18)(1) or (2) (penalties for failure to make or keep records under the rules);
• subclauses 26(4) or (5) (Secretary may require information or documents); and
• subclauses 42(1), (3), (5) or (8) (civil penalty provisions for false or misleading information or documents).
2.52 Further, subclause 23(2) seeks to provide that for the purposes of Part 5 of the Regulatory Powers Act a compliance officer is an infringement officer.
2.53 Clause 4 of the bill seeks to define a compliance officer as either the Secretary or an Australian Public Service (APS) employee in the department appointed by the Secretary under clause 47 of the bill.
2.54 In Scrutiny Digest 4 of 2024, the committee noted that the explanatory memorandum contained a detailed explanation of how the provisions will operate, including that compliance officers are provided with appropriate training in relation to investigation and monitoring powers, and that officers assisting will be supervised and directed by experienced compliance officers.
2.55 While noting the committee’s preference that such matters be expressly provided for in primary legislation, the committee ultimately left the appropriateness of the provisions to the Senate as a whole.[123]
2.56 The minister provided further information concerning the provisions, consistent with the information provided in the explanatory memorandum to the bill.
2.57 The committee thanks the minister for the information provided.
2.58 Noting that the committee, in Scrutiny Digest 4 of 2024, ultimately left this matter to the Senate for its consideration, the committee makes no further comment.
2.59 Subclause 40(1) of the bills seeks to provide an offence if:
• a person is, or has been an entrusted person;[126]
• the person has obtained or generated information in the course of, or for the purposes of:
• administering, or assisting a person to administer, the bill or rules; or
• monitoring compliance with, or assisting a person to monitor compliance with, the bill or the rules;
• the information is protected information;[127] and
• the person uses or discloses the information.
2.60 Subclause 40(4) seeks to provide an offence-specific defence to the above offence if the use of the information is required or authorised by the bill or another law of the Commonwealth, or law of a State or Territory prescribed by the rules. A note to the subsection clarifies that the evidential burden of proof is reversed in relation to the defence.[128]
2.61 In Scrutiny Digest 4 of 2024, the committee requested the minister’s advice as to:
• whether consideration could be given to moving an amendment to clause 40 to include the matters in subclause 40(4) as an element of the offence in subclause 40(1);
• otherwise, why it is considered appropriate to use an offence-specific defence for the criminal offence in subclause 40(1);
• whether it could be better articulated as to how the matters in subclause 40(4) are peculiarly within the knowledge of the defendant and such knowledge not available to the prosecution; and
• if the relevant matter was instead included as part of the offence, the nature of any difficulties that it is anticipated the prosecution would have in proving that matter.[129]
2.62 The minister advised that, consistent with the Guide to Framing Commonwealth Offences, the provisions only impose an evidential (rather than legal) burden of proof. The minister stated that an evidential burden is easier for a defendant to discharge, and does not completely displace the prosecutor’s burden (it only defers that burden).
2.63 The minister noted that an entrusted person will be peculiarly aware of the reasons for the use or disclosure of protected information. Further, where it may not be clear to other people why certain information was used and if the use or disclosure was authorised, the entrusted person should easily be able to point to records indicating why it was appropriate for them to use and/or disclose that information. This explanation could be readily provided by the entrusted person.
2.64 The minister further advised that if the prosecution had to prove beyond a reasonable doubt that the use or disclosure was not authorised, it would undermine the ability to prosecute the offence as the prosecution may have to go to significant lengths to identify the reasons for the use or disclosure of information.
2.65 The minister stated that if the provisions were amended to include the relevant matter as an element of the offence, the Commonwealth would have to prove that there is no Commonwealth law, or prescribed State or Territory law, in existence that could have required or authorised the use or disclosure. This would, in practice, limit the effectiveness of the provisions in protecting individuals from the unauthorised disclosure of protected information by making it impractical to prosecute the offence.
2.66 Finally, the minister advised that the provision is consistent with offence‑specific defences in other portfolio bills and legislation.
2.67 The committee thanks the minister for this response.
2.68 While the committee notes the minister’s advice that an entrusted person will be peculiarly aware of the reasons for the use or disclosure of protected information, the committee considers that the proper test is whether the matter that establishes an exception to the offence is peculiarly within the knowledge of the defendant. In this case, an exception is made out in subclause 40(4) where the use or disclosure of the information is required or authorised by the Act, a law of the Commonwealth or a law of a state or territory, and not whether the defendant believed their conduct was authorised or required by such a law. The committee remains of the view that this is not peculiarly within the knowledge of the defendant as this is something knowable by the prosecution.
2.69 The committee notes the minister’s advice in relation to the significant difficulty of proving that there is no relevant Commonwealth, state or territory law that requires or authorises a particular disclosure, however it remains unclear to the committee in practice how laws regulating this particular regime would not already be knowable to, or readily ascertained by, the prosecution.
2.70 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in relation to matters that appear not to be peculiarly within the knowledge of the defendant.
2.71 Subclause 48(1) seeks to provide that the Secretary may arrange for the use, under the Secretary’s control, of computer programs for any purpose for which the Secretary may, under the bill or the rules, make a decision of a kind specified in the rules. Subclause 48(2) would require the Secretary to take all reasonable steps to ensure that each decision made by a computer program is a decision the Secretary could validly make under the bill or rules. Subclause 48(4) also seeks to provide that the Secretary may substitute a computer-made decision if they are satisfied that the decision is not the correct or preferable decision.
2.72 In Scrutiny Digest 4 of 2024, the committee requested the minister’s detailed advice as to:
• what kinds of decisions are likely to be considered appropriate for automated decision-making;
• how much discretion will be involved in automated decisions;
• whether consideration has been given to prohibiting the decisions listed in proposed clauses 43 and 44 from being prescribed by the rules as being decisions to which automated decision-making apply;
• 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:
• the Commonwealth Ombudsman’s report, Automated decision‑making: Better practice guide; and
• whether the principles outlined in recommendation 17.1 of the Royal Commission into the Robodebt Scheme will be applied in relation to the automation of decisions under the bill.[132]
2.73 The minister advised that at this stage there is no intention to specify in the legislation the kinds of decisions that may be considered for automated decision-making. However, the kinds of decisions that may be considered appropriate for automated decision-making are those where no discretion is involved (for example, those that involve an objective calculation set out in legislation).
2.74 The minister indicated that they do not propose to prohibit particular decisions from being prescribed in the rules for the purposes of automated decision‑making.
2.75 The minister advised that the bill contains appropriate safeguards concerning automated decision-making, including that:
• any such decision would be specified in a legislative instrument that would be subject to the consultation requirements under the Legislation Act 2003;
• the instruments would not be exempt from disallowance and could be closely examined by the Senate Standing Committee for the Scrutiny of Delegated Legislation;
• the power to specify decisions could only be exercised by the Secretary personally, and as such would be exercised with the level of accountability that comes with that role;
• decisions made by the Secretary personally are reviewable by the Administrative Appeals Tribunal;
• the Secretary may make a decision in substitution for an automated decision where the Secretary considers the automated is not the correct or preferable decision;
• the bill does not oblige the Secretary to automate decisions, they would retain the discretion not to automate decisions they considered more appropriate to be made by a decision-maker.
2.76 The minister further advised that, if decisions are automated in the future, in line with recommendation 17.1 of the Royal Commission into the Robodebt Scheme:
• the department would ensure that there is a clear path for those affected by decisions to seek review;
• departmental websites would contain information advising that automated decision-making is used and would explain in plain language how the process works; and
• the Department would make available business rules and algorithms to enable independent expert scrutiny.
2.77 The committee thanks the minister for this detailed response.
2.78 While the committee welcomes the minister’s advice that automated decisions are intended to only be used for non-discretionary decisions, the committee considers it would be a stronger safeguard to include this legislative intention within the bill itself. As such, the committee considers it would be appropriate to amend the bill to constrain the power to make automated decisions to non-discretionary decisions under subclause 48(1).
2.79 The committee further welcomes the safeguards specified in the minister’s response, including the commitment to align with the recommendations of the Royal Commission into the Robodebt Scheme.
2.80 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister in relation to automated decision-making, in particular the information regarding its consideration of automated decision-making in line with recommendations of the Royal Commission into the Robodebt Scheme, be tabled in the Parliament as soon as practicable. The committee notes the importance of these explanatory materials 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).
2.81 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of providing for the power to automate decision-making, particularly where it is not restricted to non-discretionary decisions.
2.82 The committee draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.
2.83 Subclause 55(1) of the bill seeks to provide that, for better securing the payment of levy or charge imposed in relation to products or goods, the Secretary may, by legislative instrument, make rules prescribing matters required or permitted by this Act or by the rules, or necessary or convenient to be prescribed for carrying out or giving effect to this Act. Subclause 55(5) seeks to provide that, despite subsection 14(2) of the Legislation Act 2003, the rules may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.
2.84 In Scrutiny Digest 4 of 2024, the committee requested the minister’s advice as to whether material incorporated from time to time would be made freely and readily available to all persons interested in the law, including individuals not in the industries concerned.[136]
2.85 The minister advised that the material incorporated from time to time will be made freely and readily available to all persons interested in the law, including individuals not in the industries concerned.
2.86 The minister further advised that explanatory statements to such instruments would include website details about where the documents could be obtained; specify the Australian public libraries where the material is available; or include relevant extracts, in full, from the incorporated documents.
2.87 The committee thanks the minister for this response.
2.88 In light of the above, the committee makes no further comment on this matter.
[121] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Agriculture (Biosecurity Protection) Levies and Charges Collection Bill 2024, Scrutiny Digest 6 of 2024; [2024] AUSStaCSBSD 97.
[122] Clauses 20, 21, and 23. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i) and (ii).
[123] Senate Scrutiny of Bills Committee, Scrutiny Digest 4 of 2024 (20 March 2024) pp. 5–8.
[124] The minister responded to the committee’s comments in a letter dated 15 April 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 6 of 2024).
[125] Subclause 40(4). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).
[126] Clause 4 defines ‘entrusted person’ to mean the Minister, the Secretary, an APS employee in the Department, any other person who is employed or engaged by the Commonwealth to provide services to the Commonwealth in connection with the Department, and any other person who is employed or engaged by the Commonwealth or a body corporate that is established by a law of the Commonwealth and in a class of persons prescribed by rules.
[127] Subclause 40(3) provides that protected information is information (including commercially sensitive information) the disclosure of which could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence.
[128] Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.
[129] Senate Scrutiny of Bills Committee, Scrutiny Digest 4 of 2024 (20 March 2024) pp. 8–11.
[130] The minister responded to the committee’s comments in a letter dated 15 April 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 6 of 2024).
[131] Subclause 48. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iii).
[132] Senate Scrutiny of Bills Committee, Scrutiny Digest 4 of 2024 (20 March 2024) pp. 11–14.
[133] The minister responded to the committee’s comments in a letter dated 15 April 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 6 of 2024).
[134]135 Subclause 55(5). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).
[136] Senate Scrutiny of Bills Committee, Scrutiny Digest 4 of 2024 (20 March 2024) pp. 24–15.
[137] The minister responded to the committee’s comments in a letter dated 15 April 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 6 of 2024).
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