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Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Bill 2001
Schedule 2 Amendments to facilitate computer-based decision making

   

Australian Citizenship Act 1948

1  Before section 37

Insert:

36A   Minister may arrange for use of computer programs to make decisions etc.

             (1)  The Minister may arrange for the use, under the Minister’s control, of computer programs for any purposes for which the Minister may, or must, under this Act or the regulations:

                     (a)  make a decision; or

                     (b)  exercise any power, or comply with any obligation; or

                     (c)  do anything else related to making a decision, exercising a power, or complying with an obligation.

             (2)  The Minister is taken to have:

                     (a)  made a decision; or

                     (b)  exercised a power, or complied with an obligation; or

                     (c)  done something else related to the making of a decision, the exercise of a power, or the compliance with an obligation;

that was made, exercised, complied with, or done (as the case requires) by the operation of a computer program under an arrangement made under subsection (1).

36B   Minister may substitute more favourable decisions for certain computer-based decisions

             (1)  The Minister may substitute a decision (the substituted decision ) for a decision (the initial decision ) made by the operation of a computer program under an arrangement made under subsection 36A(1) if:

                     (a)  a certificate under section 46B relates to the computer program and to the initial decision; and

                     (b)  the certificate states that the computer program was not functioning correctly; and

                     (c)  the substituted decision could have been made under the same provision of this Act or the regulations as the initial decision; and

                     (d)  the substituted decision is more favourable to the applicant.

             (2)  The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

             (3)  Subsection (1) has effect despite:

                     (a)  any law of the Commonwealth; or

                     (b)  any rule of common law;

to the contrary effect.

2  After section 46A

Insert:

46B   Evidence of whether computer program is functioning correctly

             (1)  In citizenship proceedings, a certificate signed by an officer stating whether or not a specified computer program was functioning correctly:

                     (a)  at a specified time or during a specified period; and

                     (b)  in relation to specified outcomes from the operation of that program under an arrangement made under subsection 36A(1);

is prima facie evidence of the matters stated in the certificate.

             (2)  For the purposes of this section, a computer program is functioning correctly if:

                     (a)  outcomes from its operation comply with this Act and the regulations; and

                     (b)  those outcomes would be valid if they were made by the Minister otherwise than by the operation of the computer program.

             (3)  In this section:

citizenship proceedings means:

                     (a)  proceedings in a court (including criminal proceedings) that relate to this Act (including an offence against this Act); or

                     (b)  proceedings that relate to an application for review under section 52A.

officer means:

                     (a)  an officer of the Department; or

                     (b)  a person authorised in writing by the Minister to issue certificates under this section; or

                     (c)  any person who is included in a class of persons authorised in writing by the Minister to issue certificates under this section, including a person who becomes a member of the class after the authorisation is given.

Migration Act 1958

3  At the end of subsection 52(2)

Add “For this purpose, a way of communicating includes any associated process for authenticating identity.”.

4  Subsection 84(2)

Omit “no official shall take any action”, substitute “no act is to be done”.

5  Subsection 84(4)

Omit “a person taking action”, substitute “an act being done”.

6  Subsection 84(6)

Repeal the subsection, substitute:

             (6)  In this section:

act means an act connected with performing functions or exercising powers under or for the purposes of this Act.

7  At the end of subsection 271(1)

Add:

              ; and (l)  a certificate signed by an officer stating whether or not a specified computer program was functioning correctly:

                              (i)  at a specified time or during a specified period; and

                             (ii)  in relation to specified outcomes from the operation of that program under an arrangement made under subsection 495A(1);

                            is prima facie evidence of the matters stated in the certificate.

Note:          Functioning correctly is defined in subsection (5).

8  At the end of section 271

Add:

             (5)  For the purposes of paragraph 271(1)(l), a computer program is functioning correctly if:

                     (a)  outcomes from its operation comply with this Act and the regulations; and

                     (b)  those outcomes would be valid if they were made by the Minister otherwise than by the operation of the computer program.

9  After section 495

Insert:

495A   Minister may arrange for use of computer programs to make decisions etc.

             (1)  The Minister may arrange for the use, under the Minister’s control, of computer programs for any purposes for which the Minister may, or must, under the designated migration law:

                     (a)  make a decision; or

                     (b)  exercise any power, or comply with any obligation; or

                     (c)  do anything else related to making a decision, exercising a power, or complying with an obligation.

             (2)  The Minister is taken to have:

                     (a)  made a decision; or

                     (b)  exercised a power, or complied with an obligation; or

                     (c)  done something else related to the making of a decision, the exercise of a power, or the compliance with an obligation;

that was made, exercised, complied with, or done (as the case requires) by the operation of a computer program under an arrangement made under subsection (1).

             (3)  For the purposes of this section, the following provisions are the designated migration law :

                     (a)  Subdivisions A, AA, AB and AC of Division 3 of Part 2 (other than section 48B);

                     (b)  any provision of this Act or of the regulations that the Minister determines, in writing, to be part of the designated migration law.

             (4)  A determination under paragraph (3)(b) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

495B   Minister may substitute more favourable decisions for certain computer-based decisions

             (1)  The Minister may substitute a decision (the substituted decision ) for a decision (the initial decision ) made by the operation of a computer program under an arrangement made under subsection 495A(1) if:

                     (a)  a certificate under paragraph 271(1)(l) relates to the computer program and to the initial decision; and

                     (b)  the certificate states that the computer program was not functioning correctly; and

                     (c)  the substituted decision could have been made under the same provision of the designated migration law as the initial decision; and

                     (d)  the substituted decision is more favourable to the applicant.

             (2)  The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

             (3)  Subsection (1) has effect despite:

                     (a)  any law of the Commonwealth; or

                     (b)  any rule of common law;

to the contrary effect.