There are many situations in which government agencies could use appropriately-designed machine technologies to assist in the exercise of their functions, which would be compatible with lawful and appropriate conduct. Indeed, in some instances machine technology may improve aspects of good administrative conduct – such as accuracy and consistency in decision-making, as well as mitigating the risk of individual human bias.
However, if machine technology is designed and used in a way that does not accord with administrative law and associated principles of good administrative practice, then its use could constitute or involve maladministration. It could also result in legal challenges, including a risk that administrative decisions or actions may later be held by a court to have been unlawful or invalid.
The New South Wales Ombudsman was prompted to prepare this report after becoming aware of one agency (Revenue NSW) using machine technology for the performance of a discretionary statutory function (the garnisheeing of unpaid fine debts from individuals’ bank accounts), in a way that was having a significant impact on individuals, many of whom were already in situations of financial vulnerability.
The Ombudsman's experience with Revenue NSW, and a scan of the government’s published policies on the use of artificial intelligence and other digital technologies, suggests that there may be inadequate attention being given to fundamental aspects of public law that are relevant to machine technology adoption.