Biosecurity (Electronic Decisions) Determination 2023 - New and ongoing matters [2024] AUSStaCSDLM 3 (7 February 2024)

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Senate Standing Committee for the Scrutiny of Delegated Legislation - Monitor

FRL No.	F2023L01672
Purpose	The instrument provides the relevant provisions of the Biosecurity Act 2015 under which a decision may be made by the operation of a computer program and the classes of persons that may use a computer program under an arrangement made under subsection 541A(1) of the Act, and the conditions of that use.
Authorising legislation	Biosecurity Act 2015
Portfolio	Agriculture, Fisheries and Forestry
Disallowance	15 sitting days after tabling (tabled in the Senate on 6 February 2023).

1.25 Subsection 541A(1) of the Biosecurity Act 2015 (the Act) provides that the Director of Biosecurity may arrange for the use, under their control, of computer programs for any purposes for which a biosecurity officer may make a decision under a ‘relevant provision’ of the Act as specified in a determination made under subsection 541A(2), as authorised by subsection 541A(1).

1.26 The Biosecurity (Electronic Decisions) Determination 2023 (the instrument) is made under subsection 541A(2) of the Act. It authorises the Director of Biosecurity to arrange for a computer program to make decisions under four provisions of the Act, which enable a biosecurity officer to compel the provision of information or documents. The instrument also specifies classes of persons that may use an authorised computer program for such a decision, and sets out conditions on the use of such a computer program.

1.27 The committee has identified several significant technical scrutiny concerns in the instrument, detailed below.

1.28 Senate standing order 23(3)(m) requires the committee to consider whether an instrument complies with any other ground relating to the technical scrutiny of delegated legislation. The committee considers this to include provisions that facilitate automated decision-making. In addition, Senate standing order 23(3)(c) requires the committee to scrutinise each instrument as to whether it makes rights, liberties, obligations or interests unduly dependent on insufficiently defined administrative powers. This includes provisions that broadly delegate administrative powers or functions.

1.29 Subsection 5(1) of the instrument determines four provisions of the Act under which a decision may be made by operation of a computer program. The relevant provisions enable a biosecurity officer to require a person, who the officer ‘suspects on reasonable grounds’:

1.29.1. has information (subsection 195(2)); or custody or control of documents (subsection 195(3)) in relation to an aircraft or vessel that is the subject of a pre-arrival report under paragraphs 193(1)(a) or 193(1A) of the Act; or

1.29.2. has information (subsection 200(1)); or custody or control of documents (subsection 201(1)) in relation to a conveyance that is subject to a biosecurity control,

to answer questions or provide information, in writing, in relation to the relevant aircraft, vessel or conveyance.

1.30 The committee considers 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 each individual case. Accordingly, the committee considers that, while technology may be used to assist in the decision-making process, instruments should not provide for the complete automation of discretionary decisions themselves. For this reason, the committee considers the use of automated systems to make decisions is generally suitable only in relation to non-discretionary decisions, except where the scope of the discretion is narrow and the decision-maker is required to apply objective criteria to determine the outcome.

1.31 Where an instrument nonetheless provides for automated decision-making, the explanatory statement should justify why this is necessary and appropriate. Additionally, the explanatory statement should explain the nature of the decision-making being automated, including any elements of discretion, and the safeguards that apply, such as opportunities for review and whether there are mechanisms in place to correct errors. The committee’s concerns in this regard will be heightened where independent merits review is not available.

1.32 In this instance, the explanatory statement justifies the appropriateness of providing for automated decision-making for the decisions listed in subsection 5(1) of the instrument, including that these decisions are routine and less complex, and particular facts are established without the need for subjective assessment. It provides a further justification that electronic decision-making will optimise the department’s resources. Finally, as noted in the explanatory statement, while the relevant decisions require the formation of a state of mind, subsection 541A(4) of the Act provides that an electronic decision may be made without any state of mind being formed in relation to a matter to which the decision relates.

1.33 The explanatory statement notes that several safeguards apply in relation to automated decisions, including:

1.33.1. under subsection 541A(3) of the Act, the Director of Biosecurity must take ‘reasonable steps’ to ensure electronic decisions are consistent with the objects of the Act – as such, the business rules underpinning operation of the computer program are designed so decisions made are consistent with these objects;

1.33.2. under subsection 541A(4), the Director of Biosecurity must take ‘reasonable steps’ to ensure that an electronic decision is based on grounds on the basis of which a biosecurity officer could have made that decision. The explanatory statement explains that this safeguard provides that decisions (made either by a human or computer) involve the application of the same specific business rules and detailed criteria;

1.33.3. under subsection 541A(7) of the Act, a biosecurity officer may make a decision in place of a computer program if satisfied that the electronic decision is not consistent with the Act’s objects or that another decision would be ‘more appropriate in the circumstances’;

1.33.4. the inclusion of a condition in subsection 5(3) that users of an authorised computer program must be satisfied ‘on reasonable grounds’ that information entered into the program is true and correct, and must ensure that information is entered accurately;

1.33.5. ‘proper mechanisms’ will be in place to identify data-entry errors or other incorrect inputs and any data entry errors will mean the system will not process the decision automatically;

1.33.6. there is an ‘ability to generate an audit trail’ of the decision-making path for audit and review processes, including a record of every computer program user transaction and, in the event of system malfunction, all directions or decisions can be overridden by a biosecurity officer.

1.34 While noting the explanation regarding the appropriateness of providing for automated decision-making, the committee retains some concerns about how the above provisions operate as safeguards. Notably, neither the instrument or its explanatory statement defines what are ‘reasonable steps’ for the purposes of the safeguards in subsections 541A(3) or 541A(4), or explains how the business rules are designed so that automated decisions will be consistent with the Act’s objects. The explanatory statement also does not provide information about the factors that a biosecurity officer will consider (under subsection 541A(7)) in determining whether they are satisfied that an automated decision is not consistent with the Act’s objects or that another decision is more appropriate in the circumstances. In addition, subsection 5(3) of the instrument does not define or otherwise limit the phrase ‘on reasonable grounds’.

1.35 While the explanatory statement notes that ‘proper mechanisms’ will be in place to identify errors, and that there is an ability to generate an audit trail of the decision-making path for audit and review processes, it appears unclear on the face of the instrument and explanatory statement what these mechanisms entail and whether there are mechanisms in place to correct errors when they are identified. The committee would appreciate further detail on the audit and review processes, particularly noting that the Act does not appear to provide for independent merits review of the relevant decisions (see subsection 574(1) of the Act). The committee’s concerns are particularly heightened in this regard, noting that the Act imposes offence and civil penalty provisions for failure to provide the information or documentation requested by the decision-maker.^[17]

1.36 Finally, the committee notes that subsection 5(2) of the instrument specifies the classes of persons that may use an authorised computer program to make a decision referred to in subsection 5(1). As noted in the explanatory statement, these include employees or officers of the department or consultants and contractors performing services for the department, and registered agents or masters of a ship, aircraft operators or airlines, or persons in charge of a conveyance or acting on behalf of such persons. As the Act empowers only biosecurity officers, who are persons with specified training and qualification requirements,^[18] to make the relevant decisions, the committee is concerned about the broad scope of persons who may directly engage with the computer program to have it make a decision, noting the lack of clarity around the applicable safeguards.

1.37 Finally, the committee notes the Royal Commission into the Robodebt Scheme made two recommendations relating to automated decision making that included advice to the Government in its use and for the reform and regulation of automated decision-making.^[19]

1.38 In light of the above the committee requests the minister’s advice as to whether further detail can be provided regarding:

1.39 The committee also requests the minister’s advice as to whether consideration has been given to:

1.40 Senate standing order 23(3)(i) requires the committee to consider whether an instrument unduly excludes, limits, or fails to provide for the independent review of decisions affecting rights, obligations, or interests. Where an instrument empowers a decision-maker to make discretionary decisions, the committee ordinarily expects that those decisions will be subject to merits review. This is of particular concern where the instrument provides for automated decision-making.

1.41 As noted, the instrument provides for the automation of decisions under subsections 195(2), 195(3), 200(1) and 201(1) of the Act, which are not included as ‘reviewable decisions’ under subsection 574(1) the Act. It therefore appears to be the case that independent merits review is not available in relation to these decisions including when they are made by a computer program. In this regard, the committee notes that subsection 574(2) of the Act enables regulations made under the Act to provide that specified provisions of the Act are ‘reviewable decisions’.

1.42 In light of the above the committee requests the minister’s advice as to whether legislative amendments could be made to provide that the decisions specified in subsection 5(1) are ‘reviewable decisions’ under the Biosecurity Act 2015 or whether independent review of these discretionary decisions could otherwise be provided for.

1.43 Senate standing order 23(3)(d) requires the committee to scrutinise each instrument as to whether persons likely to be affected by the instrument, as well as relevant experts, were adequately consulted in relation to the specific instrument. Further, section 17 of the Legislation Act 2003 requires that, prior to an instrument being made, the rule-maker must be satisfied that appropriate consultation was undertaken. In determining whether any consultation that was undertaken is appropriate, the rule-maker may have regard to the extent to which the consultation ensured that persons likely to be affected by the proposed instrument had an adequate opportunity to comment on its proposed content.

1.44 Accordingly, explanatory statements to instruments should provide details of any consultation undertaken. If no consultation was undertaken with persons likely to be affected or relevant experts, the explanatory statement should justify why no such consultation was undertaken. In this instance, the explanatory statement to the instrument indicates that the Attorney-General’s Department was consulted in the making of the instrument. However, the explanatory statement does not indicate whether consultation was undertaken with persons likely to be affected by the instrument or with relevant experts.

1.45 Accordingly, the committee requests the minister’s advice as to whether any consultation was undertaken in relation to the instrument with persons affected or experts or, if not, why not.

1.46 Finally, Senate standing order 23(3)(e) requires the committee to scrutinise each instrument as to whether its drafting contains an error or is unclear.

1.47 In this instance, the instrument’s explanatory statement appears to contain a drafting error, as it refers on page 7 to the obligations of a class of persons who may use an authorised computer program under subsections 5(2) or 5(3) and states that subsection 5(4) provides the conditions of use of an authorised computer program. However, the instrument appears to specify the obligations of such classes of persons in subsection 5(2) and the conditions of use of computer programs in subsection 5(3). There does not appear to be a subsection 5(4) in the instrument. The committee notes the importance of accurate drafting in pieces of delegated legislation and their explanatory statements.

1.48 Accordingly, the committee requests the minister’s advice as to whether the explanatory statement can be amended to correct the possible drafting error identified above.

^[14] This entry can be cited as: Senate Standing Committee for the Scrutiny of Delegated Legislation, Biosecurity (Electronic Decisions) Determination 2023, Delegated Legislation Monitor 1 of 2024; [2023] AUSStaCSDLM 3.

Australian Senate Standing Committee for the Scrutiny of Delegated Legislation - Monitor

Biosecurity (Electronic Decisions) Determination 2023 - New and ongoing matters [2024] AUSStaCSDLM 3 (7 February 2024)