Executive power in the digital age: Automation, statutory interpretation and administrative law

Administrative decision-making in Australia is being reshaped by the increasingly pervasive use of automated processes by government agencies. A key theme in the commentary to date is concern about the use of automated processes for discretionary decisions. This chapter argues that a broader issue that may affect both discretionary and non-discretionary decisions is the extent to which automated processes adhere to the rules and principles of statutory interpretation. This is significant as the process of translating statutory provisions into computer code can make these provisions more precise and otherwise change their meaning. The alignment of coded statutory provisions with the true construction of the statute is an issue with constitutional implications as authoritatively interpreting statutory meaning is an exclusively judicial role under the Australian Constitution. Services Australia's online compliance intervention, colloquially known as ‘robo-debt’, provides an example of a non-discretionary statutory power regarding the preconditions for raising a debt that appears to have been programmed in a way that contradicts the relevant requirements of the Social Security Act 1991 (Cth). This raises concern about a very high volume of decisions at odds with the courts’ likely interpretation of the statute. Additional safeguards are needed to ensure that the rise of automated administrative processes does not undermine the courts’ constitutional role of conclusively interpreting the legal meaning of statutes and determining the validity of executive action.