• Bias Rule Reforms

ADMINISTRATIVE LAW: REFORM OF THE BIAS RULE IN THE DIGITAL AGE

Artificial intelligence is changing government decision-making at an ever-increasing pace. Where governments wield decision-making authority over citizens, Ministers and executive agencies are increasingly using computer algorithms to automate the decision-making processes of millions of administrative decisions annually. Algorithmic decision-making is increasingly used to decide visa applications, welfare applications, taxation rulings, and other administrative decisions.

Where a decision is generated by an algorithm, it is becoming increasingly unclear how the decision is made, what information it is based on, who the decision-maker really is, and to whom that decision can be legally attributed. This raises questions of the transparency of the decision, impartiality and fairness, and where grounds of appeal may lie. This article examines the inherent biases programmed into decision-making algorithms, and argues that Australia’s legal frameworks should embrace reform to uphold public confidence in the rule of law.

As technology outpaces the law by at least a generation, a research gap exists about the law which should encircle automated decision-making, and the outcomes where the decision is challenged in court. This paper cites examples from foreign jurisdictions to assist executive policymakers, academics and lawyers to understand the risks for Australia if reforms are not embraced, and suggests an alternative model law for the High Court to consider.