By Julian Pinder and Sophie Lloyd -
Snapshot
- An increasing number of governmental decisions are likely to be fully or partially automated in the future.
- Caution should be taken to ensure that the design of automated systems does not impact on fairness and justice.
- While existing administrative law principles will be useful and relevant when judicially reviewing automated decisions, legislative changes are likely to be required in the face of emerging technologies.
In the face of unrelenting advances in technology and the increasing adoption of new technologies by government departments and agencies, automated decision making is likely to become a dominant form of administrative decision making in the coming decade. These changes in decision making processes are likely to have significant implications for the development of administrative law.
Automated decision making can range from a computer program providing tools and shortcuts to decision makers to assist them in making a decision, to a computer program making the decision itself without human involvement. While automation of decision making is not by any means limited to the administrative realm, it is particularly useful in that area because of the large number of decisions that need to be made, the voluminous material that often needs to be considered, the frequently changing criteria and the labyrinthine statutory and policy provisions that need to be taken into account by administrative decision makers.
While automated decision making may seem like a nascent form of decision making, computer programs are already being used to make a large number of administrative decisions in Australia. For example the Australian Tax Office uses automated systems to assist clients in lodging tax returns, as well as for auditing purposes, and the Department of Human Services utilises automation in making a range of decisions regarding payments, such as in relation to social security.
With respect to the position of automated decision making under the law, a number of significant pieces of legislation have provided for the making of automated decisions for some time. For example, section 495A of the Migration Act 1958 (Cth), inserted in 2001, states that the Minister may arrange for the use of computer programs for any purposes where under the migration law the Minister may or must make a decision, exercise a power or comply with an obligation. Further, the Minister is taken to have made a decision or exercised a power that was made or done by a computer program as contemplated by the section.
