COMMITTEES

Senator DEAN SMITH (Western Australia) (16:32): In respect of Scrutiny digest 7 of 2026, I move: That the Senate take note of the report. As Chair of the Senate Standing Committee for the Scrutiny of Bills, I rise to make some remarks on the previously tabled committee report Scrutiny digest 7 of 2026. The digest contains the committee's consideration of 21 bills introduced between 11 May and 4 June 2026.

The committee has commented on 10 new bills and concluded its consideration of eight previously introduced bills. I wish to draw senators' attention to the committee's commentary in chapter 1 of the digest regarding provisions in two bills that adopt similar novel approaches to the automation of administrative decision-making. The National Disability Insurance Scheme Amendment (Securing the NDIS for Future Generations Bill) 2026 proposes amendments to the National Disability Insurance Scheme Act 2013, which include provision for the automation of specified administrative action by the National Disability Insurance Agency, or the NDIA.

Under the bill, the NDIA's CEO would be able to arrange in writing for the automation of administrative actions or decisions identified in the bill or in legislative instruments made by the minister. In particular, the bill would expressly allow for the automation of administrative decisions involving the exercise of discretion or evaluative judgement. The committee has, in recent years, increasingly drawn attention to provisions that authorise the making of administrative decisions by a computer program.

It does so under Senate order 24(1)(a)(iii), which requires the committee to scrutinise whether provisions of bills would 'make rights, liberties or obligations unduly dependent' upon non-reviewable administrative decisions. Under this scrutiny principle, the committee examines whether the decisions proposed for automation involve complex or discretionary considerations or tests.

This focus reflects a core administrative law requirement that decision-makers engage in active intellectual process when doing so. A failure to engage in this way when making a decision can lead to legal error, such as failing to take account of a relevant consideration. There is also a risk that automated systems will apply predetermined criteria inflexibly in a way that fetters legal discretion, which the parliament has resolved should consider the individual merits in each case.

For this reason, the committee expects explanatory memoranda to explain why automation is necessary and appropriate for each decision, how ordinary administrative law requirements will be maintained and what safeguards are in place to prevent legal error. On this occasion, the bill proposes that the CEO be required to make a standard operating procedure instrument setting out the circumstances in which they would always exercise their discretion or judgement in a certain manner.

The CEO is required to do so by reference to objective criteria to ensure a computer program would be able to do so in the same way. The committee has noted that this approach may effectively convert the exercise of the CEO's discretion into rules of fixed application that would be applied inflexibly by a computer program. The committee has requested detailed information from the minister about this automation framework and has also sought similar information in relation to the Health Insurance Amendment (Incentive Payments and Other Measures) Bill 2026, which proposes a substantially similar approach.

With these comments, I commend the committee's Scrutiny digest 7 of 2026 to the Senate for its consideration. Question agreed to.