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Administrative Review Council - Admin Review |
Christine Charles
This is an edited version of a paper presented at a seminar organised by the Institute of Public Administration Australia in Canberra on 31 May 2002.
The Administrative Review Council has been investigating the use of automated assistance in administrative decision making. This paper briefly outlines the role of the Council and its work in this area.
The Administrative Review Council was established in 1976 to monitor the then new administrative law arrangements and provide to the Commonwealth Attorney-General independent advice on matters associated with administrative review. The Council celebrated its 25th anniversary in December 2001. The Attorney-General, the Hon. Daryl Williams AM QC MP, noted in his speech at the anniversary dinner, ‘In the last 25 years, the Commonwealth’s system of administrative review has become well-accepted. Australian citizens have recourse to a number of avenues of administrative review that we now take for granted’. He further noted that it is ‘important to ensure that the system evolves to keep pace with the changing times. The Council has recognised this need and has recently embarked on an examination of the use of technology in government decision making’.
The Council’s inquiry into automated assistance in administrative decision making is directly relevant to two of the Council’s functions:
• to monitor developments in administrative law • to inquire into the adequacy of procedures used by Commonwealth authorities and others who exercise administrative discretions or make administrative decisions.
The aim, as expressed in s. 51 of the Administrative Appeals Tribunal Act 1975, is to ensure that decisions are made in a just and equitable manner.
The Council established a subcommittee to look at the question of automated assistance in administrative decision making. The former Commonwealth Ombudsman, Ron McLeod AM, and Professor Robin Creyke, from the Australian National University, are also subcommittee members. The subcommittee is examining the use of expert systems, although the focus is on rule-base systems because they are the type of expert system most often used to model legislation.
An expert system is a computing system that, when provided with a certain amount of basic information and a general set of rules instructing it how to reason and draw conclusions, can mimic the thought processes of a human expert in a specialised field.[1]
A rule-base system is one kind of expert system. Rule-base systems involve the modelling of complex or intricate rules (such as legislation) accompanied by an ‘engine’ that is able to automate the process of investigating those rules by interacting with applicants to extract relevant personal details. The systems have two functions:
• They interrogate the user, identifying the next relevant legislative issue and closing off irrelevant paths as they go. • They draw conclusions, applying the structural logic of the legislation on the basis of information collected from the user.[2]
Commentary generally accompanies the questions in the rule-base. It provides explanatory detail for the officer and the applicant and can show the relevant provisions, case law and policies.
Rule-base systems are not new. Their use to model legislation is, however, a new application of the technology and offers an exciting opportunity for government to improve the quality of decision making. The systems are currently used by a wide range of Commonwealth government agencies and by some state government agencies.
As noted, the Council is examining the use of rule-base systems in administrative decision making. The term ‘administrative decision making’ covers a wide variety of matters, from simple mechanical decisions to more complex decisions involving multiple factors and the exercise of discretion. For the purposes of this project, the Council is particularly interested in decisions that can adversely affect disadvantaged members of the community.
The Council resolved that its inquiry should include consideration of the following:
• current use of rule-base systems by Commonwealth agencies • how and by whom rule-bases are designed and operated • how the systems are tested to ensure that they correspond with the relevant legislation • opportunities (if any) for independent scrutiny of the rule-base • the implications of use of the systems • access and equity considerations that arise in relation to the systems.
The subcommittee has published an issues paper on the project. In preparing it, the Council informally consulted a number of government departments and individuals. It also conducted a stocktake of current and proposed use of expert systems in Commonwealth agencies. The results of the stocktake are presented in the issues paper.
Rule-base systems have the potential to make decision-making more accurate, consistent and efficient. An officer using such a system no longer needs to identify the different types of benefits that might be available to an applicant. After the relevant data are entered the rule-base identifies the various types of assistance that might be available. The system also relieves the officer of the need to have detailed knowledge of the legislation in question, any recent legislative changes, and any rarely used provisions. This leaves the officer free to develop expertise in other areas, to conduct research, to focus on and negotiate with clients, and to provide referral advice.
When a rule-base system is used, the same interpretation of the rules will be applied in each case. This promotes consistency across jurisdictions and between metropolitan and regional areas. The result for an applicant in Bourke, for example, should be the same as that for an applicant in Sydney with the same circumstances.
Developing a rule-base and the accompanying commentary can result in the identification of matters in relation to which there is little or no policy, and policy in that area can then be developed. This fosters consistent decision making. Use of rule-base systems can also decrease the time and cost associated with making administrative decisions. The Australian National Audit Office’s report entitled Review of Veterans’ Appeals against Disability Compensation Entitlement Decisions refers to a Department of Veterans’ Affairs evaluation of the rule-base system used by that department. The system was introduced in 1994; the report of the evaluation noted that both the average time taken to process primary-level decisions and the average cost per case had fallen significantly between 1991–92 and 1995–96.[3]
A rule-base system can support an officer’s consideration of the evidence needed to obtain certain benefits and guide the officer’s exercise of any discretion. It can also help with policy development; for example, an agency can use the rule-base to test the operation of proposed legislation. Further, a rule-base system can assist individual applicants: information entered in the rule-base can be amended to see how a change in the applicant’s circumstances (a change in income, for example) would affect an existing entitlement.
Rule-base systems can also make a wide range of service delivery options possible, thus making government more accessible.
Despite rule-base systems’ advantages, a number of questions warrant consideration:
• What are the desirable qualifications and level of subject knowledge for designers of rule-base systems? • What are the appropriate procedures for testing the accuracy of the rule-base and how can accuracy be reasonably assured? • Who should audit the computer programs? • Should there be opportunities for independent scrutiny of the rule-base before it becomes operational and for regular, continued scrutiny? If so, who should undertake and fund such scrutiny? • How is the possibility of error or manipulation by officers minimised? • What is the best way of ensuring that the rule-base is kept up to date? • What role can and should judgment and discretion play?
Left unanswered, some of these questions have the potential to undermine the benefits of rule-base systems. Human manipulation could undermine consistency, for example, and if a rule-base is not kept up to date the accuracy of any decisions made using it will be called into question.
It has been claimed that, because the data-collection exercise using a rule-base system can be tailored to a specific client, it is possible to collect a far broader range of information than was previously the case.[4] This raises some privacy questions that warrant attention. There are also a number of administrative review issues that need to be considered in this context. For example, do decisions made using rule-base systems satisfy the requirements for valid decisions as set out in the Administrative Decisions (Judicial Review) Act 1997? Without wishing to overstate the possibilities, there could be bias inherent in a rule-base—for instance, in the way questions are phrased.
Use of a rule-base system could also result in an officer acting under dictation if he or she fails to query a suggested decision of the system or is unable to override a decision. If the officer cannot override the rule-base’s decision, is there a valid justification for that? Further to this, use of a rule-base system could result in the inflexible application of a rule or policy, without regard to the merits of the case.
Some of these questions also arise in manual decision making. However, the use of rule-base systems means that the traditional administrative law safeguards might need to be reconsidered.
Among other matters the Council is considering are the following:
• How is any exercise of discretion guided or assisted by the rule-base? • Does the rule-base incorporate policy that narrows the available discretion without any legislative authority? • Where the gathering of information and initial consideration of a complex case are done using a rule-base system, how do we ensure that the decision is ultimately considered or made by a sufficiently senior officer? • Should internal review of a decision made using a rule-base system be done using the system or should it be carried out manually? • If self-assessment using rule-base systems is ultimately introduced, what are the implications of such a development? For example, it may disadvantage people who are ill at ease with computers or have poor reading skills, or both. • How will it be possible to meet the continuing need for applicants to have access to independent advice about their entitlements?
The potential for decision makers to be ‘de-skilled’ is also of concern to the Council and some agencies. If ‘de-skilling’ were to occur, governments might be left without sufficiently skilled decision makers. Corporate knowledge of alternative—or more complex or rarely used—paths through the legislation could be lost. When considering the merits or otherwise of computer-based systems, it is important to realise that the existing systems are in general far from perfect. It is also important to consider the value of ‘lost skills’ and whether that is really material to the quality of decision making.
Additionally, the Council is interested in the tendency for the statutory criteria governing decisions to be increasingly objective—with little, if any, room for the exercise of discretion—and the relevance of this trend to rule-base systems. Justice Deirdre O’Connor, former President of the Administrative Appeals Tribunal and a former ex officio member of the Council, identified this trend and noted that the reasons for it include the desire for the scope of legislation to be clear and the aim of improving the targeting of benefits. She noted that this practice ‘… removes any flexibility for tribunals to deal with those difficult cases in which strict legislative criteria fail to make provision for the unique and otherwise legitimate circumstances of a specific individual’.[5] It would be undesirable if the perceived benefits of using rule-base systems led to pressure for increasingly objective statutory criteria and a subsequent loss of discretion in administrative decision making.
As noted, the Council is charged with ensuring that decisions are taken in a lawful, just, fair and efficient manner. The subcommittee has therefore been evaluating the operation of rule-base systems against the five values the Council has previously identified as critical elements of the administrative review system[6]:
• lawfulness • fairness • rationality • openness—that is, transparency • efficiency.
For example, guaranteeing the accuracy of the rules is relevant to lawfulness, rationality and fairness; the way discretion is dealt with in a rule-base is relevant to lawfulness, fairness, rationality and openness; and questions of privacy are relevant to lawfulness, fairness and openness.
Before finalising the issues paper, the subcommittee consulted further with agencies that use rule-base systems for high-volume decision making. The paper was then considered by the full Council before its release for public comment. The Council does not have a firm view on the outcome of this inquiry: it could be principles, a position paper, a checklist to assist agencies, or a combination of these.
The use of rule-base systems—with suitable checks and balances—to assist administrative decision making offers governments unlimited service delivery options. Such systems could also change the nature of the interaction between government and its citizens:
There may emerge a new kind of societal contract, with governments providing to citizens the infrastructure of interactive connectivity, and access to it; distributing the information and processing systems which are the core of so many government services; laying down the ground rules for true e-government; and, most importantly of all, placing trust in the ability of individuals to play a much bigger role … Citizens would benefit from cheaper, more efficient government; the convenience of access ‘anywhere, anytime’; the enhanced customisation and choice; and the satisfaction of empowerment, with responsibility.[7]
Although we can, and should, embrace new technology and new applications of existing technology in administrative decision making, we need to ensure that the traditional safeguards are adapted or that new safeguards are developed to protect the rights of individuals.
The Council hopes that its work will contribute to debate in this area and I encourage all to make a submission in response to the issues paper.
[1] The Macquarie Dictionary, 3rd edn, 1998.
[2] Sutherland P. & Johnson P., ‘The impact of technology on decision-making and administrative review’, Paper presented to Australian Institute of Administrative Law Conference, Canberra, 1996, p. 9.
[3] Australian National Audit Office, Review of Veterans’ Appeals against Disability Compensation Entitlement Decisions, Audit Report no. 29 2000–01, ANAO, Canberra, 2001, pp. 36, 42–3.
[4] See Johnson P. & Dayal S., ‘New tricks: towards best practice in the use of rulebase systems to support administrative decision-making’, Paper presented to a seminar of the Institute of Public Administration Australia, Canberra, 1999, p. 6.
[5] ‘Lessons from the past/challenges for the future: merits review in the new millennium’, Paper presented at the 2000 National Administrative Law Forum—’Sunrise or Sunset? Administrative Law in the new Millennium’, June 2000, p. 6.
[6] See the Council’s 1996 submission to the Senate Legal and Constitutional Affairs Committee Inquiry into Certain Matters Relating to the Role and Functions of the Administrative Review Council, par. 27, and the Council’s A Guide to Standards of Conduct for Tribunal Members, ARC, Canberra, 2001, p. 13.
[7] Long M., ‘Beyond traditional boundaries: government in the information age’, Australian Journal of Public Administration, Community Consultation—Coombs: 25 years on, vol. 61, no. 1, March 2002, p. 12.
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URL: http://www.austlii.edu.au/au/journals/AdminRw/2003/2.html