Health Insurance Amendment (Incentive Payments and Other Measures) Bill 2026

Anne Ruston

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.

Jenny McAllister

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.

Anne 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?

Jenny McAllister

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.

Anne Ruston

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?

Jenny McAllister

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.

Dave Sharma

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