Creyke, Robin --- "Launch of the Issues Paper on Automated Assistance In Administrative Decision Making" [2004] AdminRw 4; (2004) 56 Admin Review 27

• Launch of the issues paper on automated assistance in administrative decision making
• The scope of the inquiry
• The advantages and disadvantages of rule-base systems
• The future

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Launch of the issues paper on automated assistance in administrative decision making

Robin Creyke^[∗]

This is an edited version of a speech given at the launch of Automated Assistance in Administrative Decision Making in Canberra on 19 June 2003.

One of Australia’s better known expatriates, Sir Les Patterson, once said on returning to his homeland that the closer one gets to the Australian coastline, the louder gets the back thumping! Whatever one’s views about that perception, this is one occasion on which the back thumping is more than justified. Not only has Australia pioneered developments in the use of expert systems for assisting with government decision making: this issues paper will probably be the first in the world that has considered the implications of these developments for administrative law.

The introduction of automated decision making, particularly through the use of rule-base systems, is a development that first occurred in a systematic way in Commonwealth public administration in the early 1990s. However, governments and the private sector have embraced this technology with such speed that the sections of the issues paper that chronicle that usage—Part 2 and Appendix B—had to be expanded considerably.

The speed with which Australia has adopted rule-base systems has meant the nation is at the forefront of such technological developments. It also created an impetus for the Council’s examination of the change. The Council’s initial consideration of expert systems is described in the issues paper. The final report will be published in 2004, taking into account comments from people developing such systems, as well as users and consumers.

The scope of the inquiry

The Council focused on rule-base systems, a particular type of expert system. The Macquarie Dictionary defines an ‘expert system’ as a computing system that, when provided with basic information and a general set of rules instructing the program how to reason and draw conclusions, can mimic the thought processes of a human expert in a specialised field. A legal expert system can be defined as ‘a computer program that performs tasks for which the intelligence of a legal expert is usually thought to be required—whether the legal expertise be that of a lawyer or of a non-lawyer with legal expertise in a particular area of the law’.^[1]

A significant breakthrough occurred when legal expert systems could be programmed using ordinary language: access by anyone, whether they understood programming languages or not, then became viable. The rule-base technology is of particular interest for administrative law because a rule-base system is capable of modelling complex or intricate rules (such as legislation) and this means such systems can be used in administrative decision making.

Although a rule-base system can model legislation, it is also capable of going further. A particular value of the rule base is that it is often an amalgam of the legislation, policy and relevant case law and might also contain explanatory material to help the user understand the reason for each question and how to answer it. These additional sources of information replicate the resources traditionally available to administrative decision makers exercising powers under legislation.

The technology allows people who use rule-base systems—departmental officers or even applicants—to view on screen commentary about the questions, the source legislation, relevant cases, and departmental policy. The applicant enters information that is processed through a combination of the expert system and a human decision maker when judgment or discretion is required.

When the question-and-answer process is complete, the questions and answers can be printed and, where appropriate, the applicant can sign the form. The rule-base system then produces a report on whether the person is eligible for the benefit and provides detailed reasons for the result.

Rule-base systems are not new, but their use to model legislation is a relatively new application of the technology. The systems can deal with simple mechanical decisions, such as calculation of youth allowance when informed of the amount earned by an allowee during the preceding fortnight, as well as more complex decisions involving multiple factors and the exercise of discretion, such as whether a person is a ‘member of a couple’ for the purposes of receiving benefits under the Commonwealth’s Social Security Act 1991.

The Administrative Review Council is the administrative law system watchdog, so the focus of the issues paper is administrative law. Rule-base systems offer the potential to have a profound impact on administrative law. It is the Council’s view that the technology could be moving the need for administrative accountability from the review process—the ‘back end’ of the system—to the input process at the ‘front end’ of the system. The consequence of such a development would be to open a new chapter in administrative law.

The advantages and disadvantages of rule-base systems

Rule-base systems offer a number of advantages. Principal among these is their ability to minimise human error. Guided by a database of questions that might need to be asked and decision-making ‘trees’ that insist that all matters be considered, the decision maker cannot avoid taking account of all relevant considerations and will not be permitted to consider matters that are not relevant. That leads to more accurate and consistent decisions. Further, these decisions should be more uniform across the nation, with decisions in Redfern being replicated in like circumstances in Roebourne. In administrative law terms, this is a distinct advantage.

But the picture is not all rosy. There are administrative law and practical shoals. At the practical level such systems are only as good as their continuing accuracy. If they are not maintained and updated their usefulness is much diminished.

Expert systems can also breach administrative law standards. Inflexible application of policy is an example. If programmers do not correctly interpret policy instructions when entering policy into the database, or if they implement policy that lies outside the legislation, decision makers using the system will also breach that ground of review. If agencies do not institute honest and robust auditing of the information in the database, such errors continue to be perpetuated, including errors that amount to breaches of administrative law rules. External verification of the expert system by people familiar with the law, the policy and expert systems is also essential to ensure that any such problems do not persist.

Although the use of rule-base systems can decrease the time and costs associated with making administrative decisions—and this is evidenced by an Australian National Audit Office report on the Department of Veterans’ Affairs Compensation Claims Processing System—the thoroughness the system insists on might also mean that new users take longer to process applications.

The future

Examining the evidence for and against rule-base systems is the task the Administrative Review Council has embarked on, considering the subject from an administrative law and public administration perspective. The Council’s issues paper is the beginning of this examination process. Once agencies have had time to consider the issues paper, it is planned to hold a consultation forum before finalising the report. One of the recommendations might be that some form of external monitoring be instituted.

The issues paper marks a new stage in the work of the Council. To date, the Council’s work has largely focused on monitoring and fine-tuning the package of administrative law reforms that was introduced, in some cases, over 25 years ago. With this issues paper, the Council has moved to lead, rather than react to, developments affecting administrative law.

Expert systems developments and their impact on administrative law principles and institutions are also a signal example of the continued growth and change of administrative law. This is a novel frontier for administrative law to explore. However, marching as it does alongside government, administrative law must reflect on and respond to changes that occur in the public sector if it is to continue its role of setting legal standards of good administration. And, as the body charged with monitoring developments in administrative law, the Administrative Review Council must match that growth and development of government if it is to continue to perform its monitoring task effectively.

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^[∗] Professor of Law, Australian National University, and member of the Administrative Review Council.

^[1] Baker, D, ‘The probable impact of legal expert systems on the development of the social security system’, Paper submitted to the Law Faculty, Australian National University, in fulfilment of the research component of the honours degree in law, October 2001, p. 6.