Administrative Law and automated-decision making
How Administrative Law relates to automation technologies.
Administrative Law controls how government agencies and officials make decisions and exercise their powers.
Generally, these powers are set out in legislation and are referred to as ‘statutory functions’. Statutory functions are set out in Acts, Regulations or other instruments.
In our report we considered in depth some of the main ways that Administrative Law and related rules of good decision-making can affect ADM system. Below is a very brief summary of what we said in that report.
Who can make decisions
Only a ‘legal person’ can exercise a statutory function. A legal person can be a human or an entity recognised by the law, such as a corporation. It cannot be a machine or automated decision-making (ADM) system.
However, ADM systems can generally be used to help the relevant legal person in a decision-making process. To lawfully exercise statutory functions, the decision must be:
- within the power given by the relevant law
- attributable to the person with the legal authority to make the decision
- within the scope of the decision-making power.
A statutory function can be said to be ‘discretionary’ if there is no single outcome dictated by the relevant law. This means that a decision-maker will have to make some sort of a judgment, with some element of choice in the decision being made.
A discretionary function cannot be fully automated. More generally, ADM systems cannot be used in the exercise of discretionary functions in a way that would result in the discretion being effectively disregarded or improperly ‘fettered’.
Decision-makers need to maintain a level of genuine and active decision-making when exercising a discretionary power. This means decision-makers who are being assisted by ADM:
- must have time to properly consider the outputs of an ADM system
- cannot unquestionably accept the information or results given by an ADM system.
It is not easy to say how much of a process leading to a discretionary decision can be automated. This needs to be assessed in the context of the agency’s particular function and legislation. See Implementing ADM systems.
A fair process
Good administrative decision-making requires a fair process.
A core requirement for a fair process is known as ‘procedural fairness’. Procedural fairness generally requires that the decision-maker is not biased, and that people affected by decisions are given a genuine opportunity to be heard.
In addition, to ensure a fair process when using ADM systems in decision making, it will also be important:
- to be aware of, and take steps to avoid, potential algorithmic bias – systematic and repetitive errors that result in unfair outcomes
- to tell the person affected by a decision if an ADM system has made or contributed to the proposed decision, and the nature of its involvement.
Other laws to be aware of include:
- privacy and information access – see Information and Privacy Commission NSW
- anti-discrimination – see Anti-Discrimination NSW.
Appropriate assessment means:
- answering the right question
- making decisions based on a proper analysis of evidence
- exercising discretion reasonably and based on the merits of each case.
Using ADM systems to make decisions comes with a risk that one or more of these requirements are not met. For example, if there is an error in the code, the ADM may be answering a different question to the one that the legislation requires.
The legislation may also require that certain considerations can or cannot be taken into account by a decision-maker. Automated processes must not overlook circumstances and evidence that is legally required to be taken into account – and they must not include other things that are not allowed to be considered, including discriminatory factors.
Agencies are required to document their decisions and processes. This includes decisions made using ADM system. You will need to document:
- details of the decision
- reasons for the decision
- date of the decision
- identity of the decision maker
- copies of written notification
- file notes of non-written communication.
An agency also needs to keep records of any ADM systems it uses, including:
- a register of all system versions with dates and a description of the changes between versions
- a full copy of previous versions, so past decisions can be replicated and reviewed.
To learn more about Administrative Law and ADM systems
- see part 2 of our special report, The new machinery of government.
- read the Commonwealth Ombudsman’s Automated decision-making better practice guide - Commonwealth Ombudsman
- talk to your legal team for information and advice tailored to your agency.