Corruption Matters - June 2022 | Issue 59
New machinery of government: using technology in decision-making
The NSW Ombudsman has called for greater visibility of the use of machine technologies in decision-making by the NSW Government. A report released in November 2021 emphasises the need for integrity bodies to develop capability in investigating and scrutinising machine technology use.
Public sector use of machine technologies has the potential to bring significant benefits both to agencies and the public they serve. However, in the administrative decision-making context, use of machine technology also comes with risk including potential systemic algorithmic bias and improper translation of statutory functions into code – these risks can be significantly magnified when technology is involved.
“Machine technologies” means the use of technologies where the outputs are used to assist or replace human decision-making. This broad cluster of technologies includes those generally referred to as “automated” or “algorithmic decision-making”, “artificial intelligence” and “machine learning”.
In the NSW public sector, agencies are known to be using machine technology in the areas of fines enforcement, policing, benefit assessment, child protection and driver licence suspensions.
However, agencies do not currently have an obligation to report on their use of machine technology. Nor does it appear that they routinely tell people if decisions are being made by or with the assistance of machines.
On 29 November 2021, the NSW Ombudsman tabled a special report in the NSW Parliament titled, The new machinery of government: using machine technology in administrative decision-making.
One of the primary aims of the Ombudsman’s report is to increase awareness within government and the public sector about the importance of assessing agency use of machine technologies from an administrative law perspective. This is particularly relevant in the context of increasing emphasis on the adoption of digital solutions in the public sector.
The Ombudsman has put agencies on notice that using machine technology in ways that do not accord with standards of lawfulness, transparency, fairness and accountability, could lead to findings of maladministration or unlawful conduct.
Several case studies are included in the report, four of which relate to NSW government agencies using machine technology in practice. Those case studies illustrate a range of issues relating to automation of statutory discretion, translation of legislation into code and machine technology governance.
In addition to case studies, the report offers agencies guidance on the legal and practical steps that should be taken when considering new technology. Where those steps do not adequately address unlawfulness and risk, the Ombudsman has suggested that agencies consider seeking parliamentary approval through legislation before machine technology is adopted for important administrative functions.
One of the themes of the report is that a substantial barrier to scrutinising machine technology is the current lack of visibility of its use.
For this reason, the key recommendation in the report is focused on identifying agency use of machine technologies. The Ombudsman is now scoping a major project to map the current and proposed uses of machine technology in administrative decision-making across the state.
Greater visibility is not a panacea to all potential issues considered in the Ombudsman’s report. It is an essential starting point for unpacking key questions such as: how extensive is the use of machine technology in the public sector and what cohorts does it impact? How was it designed and is it monitored for accuracy and bias? Can the existing legal framework keep pace with the rapidly evolving nature and use of machine technology?
Lack of transparency also poses potential challenges to oversight bodies who may not be aware of the role of machine technology in the performance of statutory functions. A key issue for integrity bodies going forward will be developing capability in investigating and scrutinising use of machine technology.
The Ombudsman is considering what more can be done to support agencies and citizens, as well as complaint-handling and investigation staff, to understand the use of machine technology, and to ensure that administrative law and the enduring values of good public administration, including lawfulness, transparency, fairness and accountability, are given central attention.