Automated decision-making and human rights: the right to an effective remedy

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Abstract

The increasing use of automated systems for government decision-making in Australia raises numerous challenges for public law. Automation is pervasive in nature in that it allows algorithms to be applied to large groups of similarly situated applicants. This means that legal errors that may ordinarily be limited to a small cohort of affected individuals tend to be amplified and become systemic in nature. As the problems arising from Centrelink’s automated debt-recovery process (known colloquially as ‘Robodebt’) has shown, this is an aspect of automation which is not currently dealt with adequately by existing public law processes. This situation is only likely to be exacerbated as governmental authorities expand their use of automation. In this chapter, I address two main gaps in the existing framework. First, the absence of a formal human rights assessment process undertaken prior to the implementation of automated systems by government. Second, the inability of existing review processes (such as that provided by the Administrative Appeals Tribunal (AAT)), to undertake collective or group-based review of claims which involve a common algorithm or data matching system.
Original languageEnglish
Title of host publicationThe Automated State: Implications, Challenges and Opportunities for Public Law
EditorsJanina Boughey, Katie Miller
Place of PublicationAlexandria NSW
PublisherFederation Press
Chapter5
Pages70-88
Number of pages19
Edition1st
ISBN (Print)9781760022952
Publication statusPublished - 2021

Keywords

  • technology and the law
  • Automation
  • administrative law
  • human rights law
  • Remedy
  • merits review
  • judicial review
  • class actions

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