From Rule of Law to Statute Drafting Legal Issues for Algorithms in Government Decision-Making

From Rule of Law to Statute Drafting Legal Issues for Algorithms in Government Decision-Making

Zalnieriute, M, Crawford, L, Bennett Moses, L, Boughey, J & Logan, S forthcoming, ‘From Rule of Law to Statute Drafting Legal Issues for Algorithms in Government Decision-Making’, The Cambridge Handbook of the Law of Algorithms.

The first part of this chapter sketches the way in which algorithms are or may be used across the spectrum of government decision-making – from the drafting of legislation, to judicial decision-making, to the implementation of laws by the executive branch. This section also examines the rule of law values affected by automated government decision-making systems and the legal and practical issues that the implementation and supervision of such systems may pose in practice. The remainder of the chapter is divided into two main parts. The first  is primarily descriptive and begins with a discussion of the spectrum of automation and techniques by which it can be achieved (“Automation”), before explaining the ways in which automated systems are or may be used in administrative decision-making, including the particularly contentious national security context, judicial decision-making, and legislative drafting
(“Types of Government Decision-Making”), providing real-life examples of automated systems used in different government decision-making contexts in several different countries. The second part of the chapter then considers the implications of such automation for foundational legal values, and especially the rule of law. It examines the effect of automation on core rule of law values such as transparency, accountability, equality before the law, and coherence and consistency. The section entitled “Exceptionalism, Complexity, and Discretion” provides a case study of the implications of automation for law enforcement and administrative decision-making in the national security context; this raises many of the same general issues as those raised in the preceding sections, but particularly acutely. Much of the discussion is focused on the way in which automation may affect foundational public law principles and values as they are understood in Australian law, but given that many of these principles and values are shared – at least in general – by other legal systems, the discussion is of broader significance. Finally, the section titled “Regulatory Directions of Government Use of Algorithms” looks at the question of how governments may (or must) authorise and regulate the use of algorithms in government decision-making.