Technology-Assisted Decision-Making and Administrative Law

Governments around the world are increasingly using technology to assist in making administrative decisions, and even to replace human decision-makers. In many cases this is entirely uncontroversial, allowing governments to make decisions faster and with greater consistency and accuracy. However, in some situations the use of technology has been controversial. It has resulted in unfair processes and outcomes and has reduced the ability of administrative law institutions to provide meaningful oversight of government decision-making. This paper will examine and compare how administrative law institutions and principles have applied and adapted to technology-assisted decision-making in Canada, Australia and the UK. In particular, it considers whether recent divergences in the development of the principles of fairness and reasonableness in the three jurisdictions has had an effect on the extent to which courts can meaningfully review the lawfulness of automated administrative decisions.

The Dual Nature of Canadian Administrative Law

Canada is a federal state of common law tradition. In the ‘bijural’ province of Québec, however, that tradition applies to public law only, because private law is of civil law tradition. Thus, in theory, the common law tradition of public law is uniform across Canada, since Québec’s difference relates to private law only. I will argue that the coexistence of civil law and common law traditions in Québec affects the uniformity of public law in Canada. More precisely, conceptions of law and legal reasoning, institutions, and particular understandings of the separation of powers in Québec share similarities with French legal traditions, suggesting a possible spill-over of the civil law tradition onto the common law. This suggests, in turn, that the relationships between Canadian and Québec administrative law may have to be approached through a comparative law lens.

Soft Law to Align Local Governments

Soft law can be more effective in aligning local governments than using traditional methods like plans. Two contexts help to explain the superior efficacy of soft law instruments. The first is when local authorities adopt successful policies suggested by the public authority with the intention of imitating them. The second is when a local authority feels constrained by lack of funding and thus cannot feasibly exercise their powers. In an intergovernmental relationship, a non-traditional method works better than a traditional one when it takes advantage of budget cuts to adopt a soft law instrument. It is worth noting, moreover, that the challenge of alignment discussed in this paper arises in any country with decentralized authorities (federal systems, regional systems and even unitary-decentralized systems). The same problem in all such systems, in which local autonomy is asserted by local authorities in a State.

Judicial Review of Indigenous Decision-Makers in Three Administrative Law Jurisdictions

Indigenous decision-makers have long been part of the public law of three common-law jurisdictions: Australia, Canada and New Zealand. Each has needed to confront their colonial legal history, rectify historic wrongs, and try to define a new and better relationship between Indigenous peoples and the state in which they are located. This paper examines how each jurisdiction has confronted this challenge in terms of judicial review in administrative law. It examines the initial conception of the legal status of Indigenous authorities in the nineteenth century, how later cases followed or rejected this initial conception, and how current jurisprudence is struggling to reject harmful propositions from the past or extend helpful bridges to a better future. This paper seeks to learn how related legal systems have treated Indigenous decision-makers; more importantly, it also hopes to ensure that any ‘borrowings’ across these jurisdictions are sensitive to crucial similarities and differences.

Algorithms in Administrative Procedures: Insights from Italy

The use of algorithms by public authorities is increasing all around the world, with the aim to improve the quality of services delivered to citizens and to take more effective public decisions. The algorithms can help doctors in medical exams, assist students at school, manage and evaluate careers in public and private sectors, contrast online threats, provide solutions in case of natural disasters. At the same time, however, they reduce the discretionary powers of public administrations and questions and doubts arise on transparency and openness of the algorithmic systems. The paper describes the most important developments of the use of algorithms in the Italian experiences of regulation and administrative procedures.