by leave—I move amendments (1) and (2) on sheet 3945 together:

(1) Schedule 1, item 4, page 10 (line 13), at the end of subsection 54(2), add:

and; (c) in the case of the Secretary—the Secretary has had regard to any instrument in force under subsection (5); and

(d) in the case of the Chief Executive Medicare—the Chief Executive Medicare has had regard to any instrument in force under subsection (7).

(2) Schedule 1, item 4, page 10 (after line 18), at the end of section 54, add:

(5) The Secretary must, by legislative instrument, determine guidelines in relation to the exercise of the power under subsection (1) by the Secretary.

(6) Without limiting subsection (5), the guidelines must set out the matters that the Secretary may have regard to in determining whether to exercise the power under subsection (1) in relation to an eligible provider.

(7) The Chief Executive Medicare must, by legislative instrument, determine guidelines in relation to the exercise of the power under subsection (1) by the Chief Executive Medicare.

(8) Without limiting subsection (7), the guidelines must set out the matters that the Chief Executive Medicare may have regard to in determining whether to exercise the power under subsection (1) in relation to an eligible provider.

I indicate that the government won't be supporting the amendments on sheet 3945. The amendment is unnecessary. It proposes guidelines for the exercise of the power by the secretary and chief executive of Medicare, which will already be covered by the rules established for each incentive program.

This relates to section 54. It provides a power for the secretary or chief executive to approve participation in an incentive payment program without the participant having to put in an application. This is to cater for circumstances where the government already knows who is eligible for incentive payments based on information that's already held—for example, like Medicare benefits claiming data. As an example, eligibility for the Workforce Incentive Program Doctor Stream incentivises practice in regional, rural and remote locations. That perhaps may be determined without application if it is clear from the Medicare data that doctors are billing for the eligible services in eligible locations. Approving incentive payments in this way avoids unnecessary administrative burden on providers when the government already knows that they're eligible. It ensures that eligible providers don't miss out just because they weren't aware that they were eligible.

This type of action can only occur when the eligible provider meets all the eligibility criteria or any other requirement outlined in the rules for that incentive payment program. Given that those rules already govern how this power is to be exercised, developing additional legislative instruments, as is proposed in the amendments presently before the Senate, in the form of guidelines is duplicative and unnecessary. It's on that basis that the government won't be supporting the amendments moved by Senator Ruston.

The question is that opposition amendments (1) and (2) on sheet 3945 be agreed to.

I move opposition amendment (1) on sheet 3946:

(1) Schedule 1, item 4, page 24 (after line 10), after subsection 66(1), insert:

(1A) Rules for the purposes of paragraph (1)(a) or (b) must only specify a provision that is a section, subsection, paragraph or subparagraph.

Note: Rules for the purposes of paragraph (1)(a) and (b) specify provisions under which computer programs may take incentive payment programs administrative action for the Secretary or the Chief Executive Medicare. Specifying such provisions at the section level or lower makes easier to identify which kinds of actions are to be taken by a computer program.

This amendment provides for greater guidance on what specific decisions can be made through automated decision-making. As I mentioned in my speech in the second reading debate, while autonomous decision-making may be appropriate for simple decisions, applying it more broadly or universally can have disastrous effects, as we have witnessed with the use of automated decision-making when it comes to the Aged Care Act. This amendment seeks to make sure that we do not see a repeat of what we've seen with the aged-care algorithm, and I would commend this amendment to the chamber.

As Senator Ruston has indicated, her amendment proposes specifying how a provision subject to automation is to be referred to, and the government won't be supporting this. We consider the amendment as drafted unnecessary, but it is also insufficiently broad to cover provisions that may be located in rules. I think the purpose of Senator Ruston's amendment is to ensure that provisions under which automated decision-making is taking place are sufficiently specified by the rules, and that requires, under the amendment, a provision to be specified by reference to a section, a subsection, a paragraph or a subparagraph. This is unnecessary, because we would not be able to specify a provision of the Health Insurance Act without reference to the section. So this amendment doesn't really add anything in relation to transparency. However, it could complicate rules drafting, in particular if the provision being automated sits in a schedule which isn't referred to as a 'section'.

I would observe, as I did in my contribution to the second reading debate, that transparency of the provisions being automated is already provided for in a series of ways in addition to specifying them in the rules. That includes notifying the person who the decision relates to that a decision was taken by a computer program, setting out the provisions that are being automated on Services Australia's website, notifying the person who the decision relates to that a computer-made decision was overridden by a human decision-maker and publishing all of those occurrences as part of the annual report.

I make the other broad observation that the public will be better served by a conversation around the use of computers in government administration that is based on facts rather than on fear. I am concerned that some of the contributions to this debate, either in this chamber or outside of this place, veer towards fear rather than fact. The problem with that is that computers already play an essential role in public administration. They enable thousands of transactions to take place quickly, efficiently, at a relatively low cost and in ways that are enormously helpful to the Australian public. Demonising those or falsely representing such decisions as dangerous or unsafe doesn't help the debate.

Nothing I say obviates the separate point that we should, of course, be cautious and use computing in government decision-making responsibly and sensibly. Everyone in this place saw what happened with robodebt. I can assure this chamber that our government will not repeat the mistakes that were made by the previous Liberal government. That scheme was illegal. It was immoral. We will not make those same mistakes. The bill that's before the chamber amongst other things sets out the transparency arrangements that we do consider are necessary when a computer is being used for automated decision-making.

But, I say again, we ought not let fear and fearmongering drive the tone of this kind of debate. The use of computers is already a very important part of public decision-making; it's already a practice that delivers very significant benefit to millions of Australians. We ought to be mature enough to have a sensible conversation about the safeguards that are necessary for the use of computers in government administration. I think that is an objective—that mature conversation—that members of this Senate could consider signing up to, should consider signing up to. We owe it to the Australian public to deliver the very best Public Service that we can. Often that will mean retaining the role for a human, perhaps for a clinician, in making a key decision. But at other times it will involve continuing the use of a computer, because that helps us. It helps everybody, and it helps us free up human resources for the tasks that matter. That's true in government, and it's true in other service systems.

Those are broader contributions about the way we might approach this debate, but, as I have laid out in my earlier remarks, we won't be supporting the amendment that is presently before us and that has been moved by Senator Ruston.

On the basis of the contribution that the minister has just given in relation to what I believe is a very sound amendment that's been moved by the opposition, is the minister able to give the chamber an absolute assurance that there are sufficient provisions contained within this bill to ensure that we won't see a repeat of the complete mess that has resulted with the automated decision-making processes that are contained in the Aged Care Act, which has seen much controversy about the removal of human override when it comes to the decision-making process? I raise this because of the incredible importance of the process that is fully automated in the aged-care system, and that is the decision about the assessment of the care needs and the prioritisation of care needs of older Australians. We have seen a government who have put through a bill, the Aged Care Bill, that hid much of the detail in subordinated rules that were not available for the public or for this Senate or for this parliament to scrutinise. I'm asking the minister: can you absolutely assure this parliament that we will not see a repeat of the mess that occurred in the Aged Care Act around the determination and the decision-making processes that the government put in place for automated decision-making?

As I indicated in my second reading speech, any decision that is proposed for automation must be capable of being reduced to sufficiently objective criteria. Where a decision or a matter requires individual judgement, discretion or consideration of a person's particular circumstances, like serious compliance action or banning orders, it will remain subject to human decision-making. The bill includes strong safeguards to ensure automation is used safely and appropriately. Only the actions specified in rules may be automated, and, importantly, automation does not displace review and reconsideration rights for providers.

I seek some clarification in relation to your initial comment, about objective criteria, in response to that question. That is the very problem with the aged-care automated decision-making algorithm: the objective criteria are wrong, but we were not able to see any evidence of those criteria before the algorithm was put into action and provided a series of inaccurate results for older Australians. Do you stand by the basis of my original question, which was that it was actually the objective criteria that were wrong—albeit objective, they were still wrong—that caused the problem?

The bill's decision-making framework is strictly limited to the administration of incentive payment programs. It does not authorise and cannot be used for any form of clinical decision-making about a patient's diagnosis, treatment or health care. More generally, it's intended to support the efficient, timely and consistent administration of high-volume incentive payment programs. It does, as I've already indicated, include multiple safeguards to ensure full transparency and accountability for automated decision-making. Only actions set out in the rules will be able to be automated. These will be subject to stakeholder consultation and to parliamentary scrutiny. Any action that requires any level of discretion will require ministerial satisfaction that it is appropriate to automate, and a standard operating procedure instrument setting out the process of how such action will be made must be made and published. There are also, as I've indicated previously, transparency requirements that include website publication of automated arrangements, notices telling affected persons when action was taken by a computer, annual reporting and powers for human decision-makers to substitute a correct or preferable decision. As I have said already, automation does not displace review and reconsideration rights for providers.

The question is that opposition amendment (1) on sheet 3946 be agreed to.

I move opposition amendment (1) on sheet 3944:

(1) Schedule 1, item 4, page 30 (after line 32), after Subdivision A, insert:

Subdivision AA — Expert advisory committee

68A Expert advisory committee

(1) The Minister must, within 6 months of the commencement of this section, establish an expert advisory committee to provide advice, and make recommendations, to the Minister about matters relating to incentive payment programs.

(2) A committee under subsection (1) must be established in writing.

(3) The committee may provide advice, or make recommendations, to the Minister on its own initiative or at the request of the Minister.

(4) The committee consists of the members appointed by the Minister.

(5) The Minister must, in appointing members to the committee:

(a) ensure that the composition of the committee reflects the diversity of the interests in the matter or matters that the committee will be dealing with; and

(b) ensure that the members of the committee have suitable qualifications or experience.

(6) The Minister must, in writing, determine:

(a) the committee's terms of reference; and

(b) the terms and conditions of appointment of the members of the committee; and

(c) the procedures to be followed by the committee.

(7) An instrument under subsection (1) or (6) is not a legislative instrument.

This amendment, which seeks to establish an expert advisory committee, is in direct response to the fact that the government has almost made an art form out of introducing legislation into this place without properly consulting those that are affected by the legislation. So what this particular amendment seeks to do is to say this to the government: if you want to use this piece of legislation, which does give you quite substantial powers, and if you want to make changes, then you have to run it through a group of experts that will actually understand the consequences of the legislation—the changes that you are seeking to make or the powers that you are seeking give yourself under this particular piece of legislation.

As I said, it has been quite incredible that there has been a complaint with just about every piece of legislation of significance that has been brought into this place. The Office of Impact Analysis will often say that a piece of legislation could have benefited from further consultation with stakeholders. We hear it time and time again when we send legislation to committees. The first thing you hear from stakeholders is, 'We were not consulted about this legislation before it was put into the parliament.' The fact that we have got a government that is failing to even seek the views of people who are going to be impacted by its policies before seeking to shove them through this place is, I think, a very sad indictment on the government. It's the reason we are constantly, in this place, trying to repair faulty legislation that got pushed through without the benefit of being scrutinised by those people who are experts in the field.

This amendment is a reasonably small amendment, but hopefully it will start to restore some sort of confidence in the health sector in that the government will be forced to consult with the sector before making any changes. If the government were to do that, we'd probably find that legislation introduced into this place would be more fit for purpose and wouldn't require constant amendment after the event.

The government won't be supporting the amendment. The amendment, as proposed, would duplicate existing consultation mechanisms and advisory bodies and would reduce flexibility in how the minister seeks expert advice on incentive payment programs. It also has the odd consequence of requiring this forum regardless of whether it is needed or whether it would be duplicative.

I make this point: this bill covers a range of different incentive payment programs. They are context sensitive. Each program does not have the same impact on stakeholders. The minister and the department already draw on advice from stakeholders, clinical experts, peak bodies, Services Australia and other relevant parties as they need, and, in going and seeking that advice, it is, of course, specific to the particular policy considerations, the particular issues that arise and the particular priorities that are being pursued by the relevant incentive program. So a standing committee, as envisaged by this amendment, risks duplicating existing consultation mechanisms and advisory bodies even while not actually providing the particular policy guidance and input that would be required should policy adjustments be required. If we think about existing bodies, for example, the Strengthening Medicare Implementation Oversight Committee was established to consider the broader reform program. That includes workforce incentives and after-hours services matters. That body already provided advice and recommendations on incentive program reforms, and it continues to provide advice on delivery of reform objectives. I note also that the proposed provisions do not specify membership, scope, reporting obligations, decision-making status or interaction with existing advisory bodies, which would create additional uncertainty not just about this proposed entity but about other existing advisory arrangements.

The minister can already establish advisory groups. The minister can already consult expert stakeholders. The minister can already seek targeted advice as needed without requiring a statutory obligation in the Health Insurance Act. Of course the government wants to hear from stakeholders when we're developing policy in this portfolio or in any portfolio. Of course we're committed to meaningful stakeholder engagement. Our view is that stakeholder engagement should be fit for purpose. It should be targeted. It should be relevant to the actual policy issues under consideration. It should be able to be responsive to the matters that are before the government at the time. We do not consider that that is best achieved through a fixed statutory committee model, and it's on that basis that we won't be supporting the amendment proposed by Senator Ruston.

Thank you, Minister, for your response to what I believe is a very sound amendment. In your contribution, you made the statement that the minister can set up advisory groups and engage in consultation with stakeholders and that he has the powers to do all manner of things to engage the sector when it comes to legislation. He may well have the powers, but he does not use them. You say you want to hear from stakeholders. Well, you can't hear from stakeholders unless you actually tell them what you're seeking to get their advice on prior to making a decision, because consultation following a decision is really nothing more than an information-giving exercise. It is not consultation.

I raise this in the context of another piece of health legislation that is before this parliament, and no piece of legislation could be a clearer example of this government's absolute refusal to consult with the sector before moving substantial changes that will have an impact on millions and millions of Australians. That is the decision of the government to change the arrangements in relation to the private health insurance rebate for people over the age of 65. We've just travelled around the country, and we have met with many, many stakeholders. We have had many submissions. Whether they be from individuals or from members of the health community who will be impacted, whether that be doctor groups, the private health insurers themselves, the private hospital sector and the specialists that work there or older Australians who are impacted by this, their families and the communities that support them—every single one of those stakeholders had no knowledge whatsoever of this policy change and this legislation until after they were put on the table by the minister.

So you will excuse the coalition's and the opposition's inability to take you at your word when you talk about the fact that you will be consulting in relation to any changes that are enabled as a part of this particular legislation. You'll excuse our cynicism about your genuine preparedness to actually undertake consultation, because of your track record as a government when it comes to consultation and transparency, your track record when it comes to burying things in the rules that we don't get to see until after the legislation is passed and your inability to even tell the truth about what has actually been provided in terms of advice to the government.

I draw the chamber's attention to the fact that the minister went out and told every single Australian that 44,000 people were estimated to drop their private health insurance cover as a result of the changes for the over-65s PHI rebate. We now find out through freedom of information—not through any other process but because of a freedom-of-information request—that that number is actually 78,000. That is 78,000 older Australians who are going to drop their private health cover. And that doesn't include anybody who's going to downgrade their cover. So you will excuse me, as I said, for being incredibly cynical about taking in anything that this government says in relation to an assurance that they are actually going to consult. The government has a track record of not only not consulting but actually providing false information into the public domain and only backtracks on that public information's inaccuracy when it's called out by something like a freedom-of-information request, an order for the production of documents or a Parliamentary Budget Office paper that contradicts what the government said.

So I would say to the chamber and particularly those other than the government in this place: we need greater scrutiny of what the government's doing, and we need stakeholders to have greater capacity to be involved in decision-making. The habitual failure of this government to do the homework before they put a policy into the public domain is why we are seeing problem after problem after problem, and it's why we're having to see the government backflip, backflip, backflip on so many things that they put into this parliament. So I think it would be very wise for the government to actually say: 'We are prepared to be consultative in this process. We are prepared to engage with stakeholders.' And one way in which you could get the confidence of stakeholder groups back is to support this amendment.

I simply wish to respond briefly to the contribution made by Senator Ruston. You never, of course, want to let the facts get in the way of a good story! For example, as I've already indicated, the government has established a Strengthening Medicare Implementation Oversight Committee. It is considering the broader reform program that does include workforce incentive and after-hours services matters. It has already provided advice to government. It has provided recommendations to government on incentive program reforms.

The government is committed to engaging with stakeholders. We engaged with stakeholders in the development of the bill that's before us at the moment, and we'll continue to do that. But we reiterate that that is best done in response to the actual matters, the actual policy questions, that are before the government at any time. That's not enabled by a rigid statutory model. We don't consider it necessary, and we don't intend to vote for the amendment that has been circulated by Senator Ruston.

The question is that amendment (1) on sheet 3944 be agreed to.

We will now move to senators' statements.