1 Introduction

1.1 The Council

The Administrative Review Council was established under the Administrative Appeals Tribunal Act 1975 as an integral part of the Commonwealth system of administrative law. The Council advises the Attorney-General on a broad range of matters related to Commonwealth administration.

1.2 The project

The Council resolved to inquire into the use of expert systems in administrative decision making. The inquiry aims to examine the following:

· rule-base and other expert systems, including

– current use of such systems by Commonwealth and some state agencies

– how and by whom the systems are designed and used

– the basis of the systems and how they are tested to ensure that they reflect the relevant legislation

– the opportunities (if any) for independent scrutiny of the systems

– the features an optimum system would have

· the implications of the use of such systems from the perspective of the administrative law system and its decision-making procedures

· aspects of access and equity that arise in relation to these systems.

In preparing the issues paper, the Council informally consulted a number of agency heads and officers. It also conducted a stocktake of the current and proposed use of expert systems in administrative decision making by Commonwealth agencies. The purpose of the issues paper is to encourage debate and comment. Commonwealth and state agencies, community organisations, companies that develop and supply expert systems, and other interested parties are invited to present submissions. The Council also plans to consult stakeholders. The submissions and the results of the consultations will be taken into account when the Council prepares its final report.

The inquiry is directly relevant to two of the Council’s functions under s. 51 of the Administrative Appeals Tribunal Act:

(aa) to keep the Commonwealth administrative law system under review, monitor developments in administrative law and recommend to the Minister improvements that might be made to the system; and

(ab) to inquire into the adequacy of the procedures used by authorities of the Commonwealth and other persons who exercise administrative discretions or make administrative decisions, and consult with and advise them about those procedures, for the purpose of ensuring that the discretions are exercised, or the decisions are made, in a just and equitable manner.

Section 51 of the Act is reproduced at Appendix A.

1.3 The issues paper

The issues paper is divided into seven chapters. This introductory chapter deals with the nature of the Council’s project. It describes the different types of expert systems, defines the term ‘administrative decision making’ for the purposes of the paper, and outlines views on the value of the use of technology in decision making, the utility of particular expert systems in administrative decision making, the relationship between government and the use of rule-base systems, and the primary administrative law values against which rule-base systems should be assessed.

Chapter 2 details the results of the Council’s stocktake of current and proposed use of expert systems in Commonwealth and some state agencies. Chapter 3 considers the design and development of rule-base systems; Chapter 4 outlines the arguments for and against using rule-base systems; Chapter 5 looks at the administrative review and other questions that arise with the use of rule-base systems; and Chapter 6 briefly considers the alternative delivery options rule-base systems can provide. Finally, Chapter 7 proposes some features of optimum rule-base systems and makes concluding remarks in relation to the systems’ operation.

1.4 Expert systems

Expert systems[1] are computing systems that, when provided with basic information and a general set of rules for reasoning and drawing conclusions, can mimic the thought processes of a human expert.[2] They are a branch of artificial intelligence technology. ‘Artificial intelligence’ describes computer systems performing tasks that, when performed by a human, require human intelligence. A legal expert system can be defined as ‘a computer program that performs tasks for which the intelligence of a legal expert is usually thought to be required—whether the legal expertise be that of a lawyer or of a non-lawyer with expertise in a particular area of the law’.[3]

There are varying views about the use of the term ‘expert system’. The systems are only as ‘expert’ as their programming allows; their ‘expert’ status is also dependent on their being used appropriately. At least one agency informed the Council that it does not favour use of the term ‘expert system’ because it considers its staff to be the experts. The Council acknowledges this view but notes that the term is commonly used and is generally well understood.

1.4.1 Rule-base systems

Rule-base systems are a type of expert system. They involve the modelling of intricate rules accompanied by an ‘engine’ that is able to automate the process of investigating those rules by interacting with users to establish client details. Such systems create a ‘decision tree’; that is, the response to each question leads to another question, and then another, until all the requirements for the decision have been considered.

Rule-base systems that model legislation perform two functions:

· They interrogate the user, identifying the next relevant legislative matter and closing off irrelevant paths as they go.

· They draw conclusions, applying the structural logic of the legislation on the basis of information collected from the user.[4]

The systems typically operate online, with an officer asking an applicant questions as prompted by the rule-base. The questions the rule-base asks give effect to the legislative requirements for the decision in question (for example, receipt of a particular benefit) and the relevant policy. The applicant and the officer can view on the computer screen commentary about the questions, the source legislation, relevant cases and the agency’s policy. An unlimited amount of explanatory material can be provided using devices such as scrolling, tabs and hypertext links.[5] (The means by which any discretion in relation to the entitlement can be exercised is discussed in Chapter 3.) When the question-and-answer process is complete, the questions and answers are printed and the applicant signs the form. The rule-base system then produces a report on whether the person is eligible for the benefit and provides detailed reasons for the decision.

Rule-base systems can also be used as a means whereby an applicant enters the required information and receives an assessment of whether the information satisfies the applicable legislative criteria. The applicant can then decide whether to proceed with their application. Some government agencies have proposed the use of rule-base systems for complete self-assessment.

Among the rule-base systems that model legislation are ‘STATUTE Expert’, developed by SoftLaw, and ‘jnana’, developed by Jnana Technologies Corporation. STATUTE Expert is used by Commonwealth and state government agencies in administrative decision making (see Chapter 2).[6] Jnana is used by Blake Dawson Waldron in applications developed for clients to evaluate whether advertisements comply with the Trade Practices Act 1975 and other relevant laws and regulations and to determine whether the permit requirements in various jurisdictions have been satisfied in advance of trade promotions.

Rule-base systems can also be used to model complex rules that do not have a legislative basis. In the insurance market, for example, they can assist with quoting and determining insurance premiums commensurate with the associated risk. Other uses of rule-base systems are diagnostic risk assessment and airline scheduling. ‘XpertRule’[7], provided by ATTAR, is a rule-base system that does not have a legislative basis.

1.4.2 Decision-support systems

Decision-support systems are research tools designed to support decisions taken and advice given by human experts.[8] The term is sometimes used interchangeably with rule-base systems or as a ‘catch-all’ that encompasses both rule-base systems and decision-support elements. It appears, however, that there is a clear distinction between rule-base systems and decision-support systems.[9] Rule-base systems generally lead to definite conclusions, whereas decision-support systems tend to provide information to enable a human to make a decision—without actually indicating what the outcome should be. ‘Decision-support system’ can also be used to refer to management information systems.[10]

This issues paper maintains the distinction between rule-base systems and decision-support systems.

1.4.3 Numeric weighting

Numeric weighting involves an assessor attributing a weighting to each factor in a calculation and then a judgment being either guided or made by computer calculation after all the factors have been considered.[11] The approach can be supplemented by the use of ‘fuzzy logic’ (see Section 1.4.4) in the calculation.[12] The numeric-weighting approach is numerically precise but only allows the categorisation of cases in broad bands.[13] It can be used in conjunction with a rule-base system.[14]

1.4.4 Fuzzy logic

Fuzzy logic is used to turn continuous or approximate concepts into terms amenable to computer deduction.[15] It offers a formal way of speaking about imprecise concepts such as ‘large’ and ‘small’[16] and is most easily described by contrasting it with Boolean logic: in Boolean logic there are only two possible values (true or false, yes or no, 1 or 0), whereas in fuzzy logic there is a ‘degree’ of truthfulness (and a statement can therefore be partially true). The concept is best demonstrated by an example:

The statement ‘X is a valid legal principle’ may be 80 per cent true, given variable factors such as location, court or tribunal, decision maker and judicial precedents.

1.4.5 Case-based reasoning

Case-based reasoning relies on inductive processes whereby the system internally discerns patterns from cases with different characteristics.[17] For this approach to be reliable, a large body of cases must be sampled and the circumstances of each case must be analysed with reference to a consistent set of criteria.[18]

1.4.6 Neural networks

Neural networks attempt to replicate the structure of the human brain.[19] Such a network scans a series of examples and the weight attached to each of the aspects that make up the decision and then generalises a rule.

1.5 Administrative decision making

Administrative decision making covers a wide variety of matters, from simple mechanical decisions made by government to more complex decisions involving multiple factors and the exercise of discretion—for example, assessment of entitlements (such as income-support entitlements) when all the criteria are present. For the purposes of this project, the Council is interested in decisions that are reviewable under the Administrative Appeals Tribunal Act 1975 or the Administrative Decisions (Judicial Review) Act 1977, or both. The questions raised in this issues paper may, however, be equally applicable to decisions that are not reviewable under those Acts.

A decision involves the following stages:

· identification of the applicant’s claims and needs and the appropriate area of government decision making

· collection of the relevant evidence in support of the criteria associated with the decision

· consideration of that evidence

· application of the law (criteria) and relevant policy to the facts of the case, including the exercise of any discretion—that is, the determination.[20]

1.5.1 The value of expert systems in administrative decision making

There are differing views about the desirability of using expert-systems technology in decision making.[21]

It has been argued that legal reasoning necessarily involves resort to social context and purpose and that as a result application of the law is not suited to a legal expert system. Proponents of this view suggest that the development of legal expert systems should be abandoned and the focus should move to computerising more mechanical tasks such as legal retrieval and litigation support.[22]

A second view is that rule-base systems have a legitimate role in making simple judgments and otherwise guiding people making decisions that involve multiple factors or the use of discretion.[23] This view emphasises the benefits of consistency in decision making, which rule-base systems can bring.

Some advocates of the use of legal expert systems are more ambitious: they suggest that other programming techniques, such as case-based reasoning and neural networks, could be added to rule-base systems to improve computers’ ability to make sophisticated decisions.[24]

1.5.2 Use of expert systems in administrative decision making

It has been suggested that the use of expert systems other than rule-base systems in the administration of legislation may not be consistent with the principles of administrative law.[25]

Numeric weighting is inherently imprecise[26] and does not take account of qualitative factors. It tries to reduce matters to an algorithm and is thus unsuited to any determination of entitlements that involves the exercise of judgment.[27] Nevertheless, it has been noted that this type of expert system can be useful in guiding a decision maker.[28] Fuzzy logic is useful if one wants to identify a tendency one way or another—for example, to analyse social trends. However, because it identifies tendencies rather than producing a result, it can be similarly unsuited to determining entitlements.

Case-based reasoning is inappropriate for representing statute law.[29] It is fact based, not conceptual. If the circumstances of a case were exactly the same as those of an earlier case, it could be used for administrative decision making, but as soon as the circumstances vary it is not reliable.[30] Neural networks are inductive and over time distinguish the relevant combination of facts. Such networks are unsuited to administrative decision making for the same reason that makes case-based reasoning unsuitable.[31] It has also been suggested that systems that apply learnt knowledge—including neural networks and case-based reasoning—are inappropriate for use in making legal determinations ‘because it is not possible to be certain that the rules they create and apply correspond to accepted legal norms’.[32]

Although the Council is interested in the use of expert systems other than rule-base systems in administrative decision making, its initial consultations have not revealed widespread use of other expert systems in this context. Consequently, given the prominence of rule-base systems in high-volume administrative decision making, this issues paper focuses on the use of such systems in administrative decision making and particularly in determining entitlements.

1.6 Government and rule-base systems

Government has executive and administrative functions. One of its executive functions involves formulating policy on various matters. Policy can be debated and implemented through legislation; in turn, policy emerges to assist with implementation of the legislation. The related administrative function involves application of that legislation and policy to an individual’s particular circumstances. Administrative law processes have an important role in the relationship between government and the citizen or applicant. At the micro level, adherence to these processes ensures that decisions are properly made and that the rights of applicants are protected in their dealings with government agencies. At the macro level, adherence to administrative law processes improves the quality of government decision making generally.[33]

With advances in technology and the increase in the quantity and complexity of administrative decisions, technology can be used to facilitate and possibly improve the administrative process. Use of technology in this way is part of a broader ‘knowledge-management’ framework.

Knowledge management has been defined in a number of ways. For example, it used to mean ‘creating, using, sharing and learning from knowledge in order to improve an organisation’s capacity to act’.[34] It has also been defined as ‘getting the right knowledge to the right people at the right time to serve the right objectives’.[35] Rule-base systems are one element of a knowledge-management framework in that they provide a means whereby agencies can codify and promulgate a consistent interpretation of complex rules and policy.

Rule-base systems are not new, but using them to make, or help with making, administrative decisions by modelling various legislative paths is a new application of the technology. These systems have the potential to make decision making more accurate, consistent and efficient, and their use will also allow government to develop innovative service delivery options, including self-assessment.

However, despite the opportunities that rule-base systems provide, care must be taken to ensure that their use supports administrative law values and that administrative review mechanisms keep pace with technological change.

1.7 Administrative law values

The Council has previously identified five values as critical elements of the administrative review system:

· lawfulness

· fairness

· rationality

· openness—that is, transparency

· efficiency.[36]

The Council considers that it may be beneficial to test the operation of rule-base systems in administrative decision making against these values. For example, the extent to which the rule-base accurately reflects the law is relevant to lawfulness, and whether there is an opportunity for independent scrutiny of the rule-base is relevant to openness. The issues paper outlines these considerations and the Council will consider them further when preparing its final report.

The concept of administrative justice is also pertinent in this regard. That concept has been described by Justice French as being ‘justice according to law’.[37] Justice French identifies four basic requirements for just decision making in a society governed by the rule of law—lawfulness, fairness, rationality and intelligibility.[38] He adds that accessibility, affordability and timeliness are also important from the perspective of the applicant and the general community.[39] Among the mechanisms for achieving administrative justice are education of decision makers, internal review by superior officers, and external administrative review.[40]

1.8 Preliminary observations

2 The Council’s stocktake of expert systems

The Council conducted a stocktake of the current and proposed use of expert systems by Commonwealth agencies. The following questions were asked:

· Are expert systems currently used within your agency to make administrative decisions? If so, what decisions are the systems used to make?

· Does your agency propose to use other expert systems in the future or to expand the categories of decisions currently made using existing expert systems? If so, please provide details.

The results for rule-base systems are presented in this chapter; details of other expert systems identified in the stocktake are provided in Appendix B. Commonwealth agencies were advised that the results of the stocktake would be published in the issues paper.

The Council is also aware that some state government agencies use rule-base systems; that is also noted in this chapter.

2.1 Rule-base systems used by Commonwealth agencies

2.1.1 Agriculture, Fisheries and Forestry—Australia

AFFA appears to have at least four rule-base systems. The Australian Quarantine and Inspection Service Import Management System, or AIMS, is used to make decisions on whether imported commodities should be subject to inspection at the border and to provide advice on the appropriate tests to apply. AIMS has a component called the Automatic Entry Processing System, which collects information from an import entry and uses a set of rules to apply quarantine directions allowing movement of cargo.

The Import Conditions Database is used to make decisions to permit or reject an import under the Quarantine Act 1908. The Phyto Internet-Grains/Horticulture Expert System and the Live Animal Exports System are used to make decisions to permit or to reject an export under the Export Control Act 1982.

2.1.2 The Australian Fisheries Management Authority

AFMA does not use rule-base or other expert systems to make administrative decisions that are reviewable under the Fisheries Management Act 1991, but it does use a rule-base system when making some decisions about whether to prosecute under that Act. The decisions are those in which Vessel Monitoring System information is available: the VMS tracks fishing vessels and can be used to provide evidence about breaches of fisheries regulations and permit conditions.

2.1.3 The Australian Taxation Office

Use of automated systems in the ATO is not new: a large number of rule-base and other expert systems are used. The rule-base systems are used, for example, to determine the rate of shortfall penalty, residency status[41], whether a scholarship is taxable, whether to use the discount or indexation method for declaring a capital gain, and entitlement to the family tax benefit and the ‘baby bonus’. Systems have also been installed on the internet for clients’ use. Over 30 other rule-base applications are being developed. It is thought there will be a high and growing demand for rule-base and other expert systems from all areas of the ATO.

It was noted in the course of the Council’s discussions with the ATO that TaxPack (in both paper and electronic form) is essentially a rule-base system in that the questions in it form a decision tree (see Section 1.4.1).

2.1.4 Centrelink and the Department of Family and Community Services

As with the ATO, the use of automated systems is not new in Centrelink and FaCS. Under a business partnership agreement FaCS contracts Centrelink to administer specific payments. Centrelink and FaCS are implementing the Edge Project, which has two expert system applications—the Claims Processing Application and the Policy Development Application.

The Claims Processing Application uses a rule-base system in the administration of family tax and childcare benefits, maternity allowances, and maternity immunisation allowances; it is administered by Centrelink on behalf of FaCS and began operating on 15 July 2002.

The Policy Development Application enables officers to model proposed changes in legislation within the rule-base, in order to determine the impact of the changes on different sections of their customer base[42] and to identify any unintended consequences. From an administrative perspective, this application also helps FaCS identify the various policy areas that need to be consulted in relation to the proposed change. FaCS is currently developing a strategy for deploying the application to other suitable areas of the department.

2.1.5 Comcare

In 1998 Comcare implemented a rule-base system, the Initial Liability Module, for determining the Commonwealth’s initial liability in relation to workers compensation claims under the Safety, Rehabilitation and Compensation Act 1988. The system requires an officer to answer a series of questions in order to establish the employment relationship of the applicant employee to the employer, the medical relationship of the injury or disease to the employment, the nature of the injury or disease, and a number of other technical questions. Answering the questions requires judgment and skill. The system makes no decisions; rather, it prompts the user to follow a structured approach to arriving at a decision. A recommendation based on the answers to the questions is offered by the system but can be overridden by the officer.

A document-assembly system operates in conjunction with the rule-base system, allowing standard letters to be generated. The system has been used for all initial liability decisions since 1998, amounting to approximately 6500 claims a year.

At this stage Comcare has no plans to expand the use of expert-systems technology to support other decision-making processes.

2.1.6 The Department of Veterans’ Affairs

DVA has been at the forefront of the development of rule-base systems in Commonwealth government agencies. In 1994 it introduced a rule-base system known as the Compensation Claims Processing System to support decision makers in determining veterans’ entitlements under the Veterans’ Entitlements Act 1986. The system was progressively introduced in all states and territories between March and September 1994, and in 1998–99 it was extended to cover internal review. DVA also uses another rule-base system, the Above General Rate stand-alone module, which determines eligibility for rates of pension that depend on employability. The module will be integrated into the Compensation Claims Processing System.

DVA also has two rule-base systems that are accessible via the internet. ELMNET (Eligibility Module Net) is a self-assessment tool that determines whether a veteran’s military service entitles him or her to benefits. The second system, Just-in-Case, is a self-assessment tool built by DVA and the Department of Defence. It allows veterans and members of the Australian Defence Force to determine the Act under which they are eligible to lodge a claim—that is, either the Veterans’ Entitlements Act or the Safety, Rehabilitation and Compensation Act 1988.

2.1.7 The Department of Defence

Defence uses rule-base systems to determine initial liability for workers compensation, compensation payments, degrees of permanent incapacity and ensuing payments and to administer its occupational health and safety system. Administrative responsibility for the determination of compensation and invalidity payments was transferred to the Department of Veterans’ Affairs in 1999; Defence retains policy responsibility for the function.

Rule-base systems are also used in Defence for guiding engineering decision making as part of the Integrated Logistic Support process and for career planning. With the systems used for career planning, numeric weighting is applied to assess human input and then predefined rules are applied to produce a ranking of officers eligible for promotion.

2.1.8 Department of Health and Ageing

Health operates a rule-base system called COMPASS, which assists in making decisions about approved providers’ compliance with the Aged Care Act 1997. Some of the most critical approved-provider responsibilities relate to the quality of care the providers must offer to residents of their homes and users of their services. When there is a breach of those responsibilities the Department can impose sanctions. COMPASS includes a document-assembly system that assists the preparation of complex sanctions notices. The relevant decisions—including the decision whether to issue a sanctions notice and a notice that actually imposes sanctions—are made by delegates of the Secretary of the department, and COMPASS assists in this.

COMPASS covers very prescriptive legislative provisions and was developed to foster a nationally consistent approach to compliance action. After a decision has been made with COMPASS assistance, it is checked by a quality assurance officer and then by a legal officer. The system was developed in house because the department had officers with detailed knowledge of the legislation and sufficient in-house IT expertise.

It is proposed to expand COMPASS to assist with decision making in relation to other areas coming within the Aged Care Act—including decisions about the transfer of places from one approved provider to another and the renewal of extra service status (see Divisions 16 and 34 of the Act).

2.1.9 Environment Australia

Environment Australia has two rule-base systems. One system helps administer the Environment Protection and Biodiversity Conservation Act 1999; it operates online and allows applicants to determine whether their proposed development will affect land protected under the Act and whether they therefore need to make an application under the Act.

The National Heritage List Decision-Support Tool is a rule-base system that uses a query on a large body of mapped environmental information to return a map-based answer. It is used to help identify regions of Australia in which to conduct more detailed natural heritage identification work using conventional means. It is expected that the system will ultimately be expanded to return an estimate of the comparative level of natural heritage significance for the vicinity of heritage nominations and referrals under the Environment Protection and Biodiversity Conservation Act.

Environment Australia is also considering the use of a rule-base system in the corporate management area. A review of current Antarctic science approvals is being conducted. The department would like to provide a ‘one-stop shop’ in which the relevant legislation can be identified and a person’s application assessed. It is possible that an expert system will be introduced in this context.

2.1.10 The Therapeutic Goods Administration

The TGA has a Listed Medicines Assessment Engine that is used in the assessment of listed medicine submissions for entry on the Australian Register of Therapeutic Goods. The system does a preliminary assessment of a submission, to check rule-based information such as combinations of ingredients and the upper limits of concentrations. The results are then considered as part of the manual decision-making process. The system is used only for analysis of scientific data submitted as part of an application for marketing approval for lower risk (listed) medicines such as vitamins, minerals and herbal products. It is intended that it will be extended to fully automate the decision-making process, with random and targeted manual reviews of a subset of submissions. The system will be available online to sponsors wishing to market a listed medicine product in Australia.

2.2 Rule-base systems used by state agencies

2.2.1 The South Australian Community Housing Authority

SACHA, a statutory body within the South Australian Government’s Human Services portfolio, operates a rule-base system. In South Australia community housing properties are managed by community housing organisations, which are generally run by volunteers. SACHA’s rule-base system—the Community Housing Eligibility Register, or CHER—is accessed by community housing organisations and facilitates their assessment of applicants’ eligibility for housing. CHER is used as a decision-support tool: judgments are left for human decision makers. It is envisaged that CHER could ultimately be used by referral bodies and that self-assessment by applicants will become possible.[43] SACHA has suggested that it may be able to use rule-base systems to determine whether the eligibility process is misunderstood by community housing organisations and, if so, conduct education sessions to remedy that. In recognition that community housing organisations need to retain control of the process within their organisations, use of the rule-base system by the organisations is voluntary.

2.2.2 The New South Wales Roads and Traffic Authority

The New South Wales RTA uses a rule-base system to make decisions on licences, vehicle registrations, and the allocation of penalties for traffic infringements. The rules embody relevant legislation, regulations, policy and practice. A customer service operator can override the system in certain circumstances; the reason for overriding it is documented and audited.

2.2.3 The New South Wales Premier’s Department

The New South Wales Premier’s Department is piloting a rule-base system that will deal with injuries to personnel and advise on extended leave and retirement matters in relation to the state’s public servants. The rules embody the relevant parts of the Public Sector Management Act 1988 (NSW) and the regulations and policies that apply to this area. The impetus for piloting a rule-base system comes from the cost of processing leave forms—particularly given error rates, the time and resources needed to deal with inquiries, and the possibility of inconsistent advice being given. It is expected that the system will be made available via the internet to managers in the New South Wales Public Service.

ISSUE
Are you aware of the use of rule-base systems in administrative decision making in situations other than those identified here? If so, please provide details.

2.3 Post-stocktake discussions

Following the stocktake, the Council decided to engage in further discussions with Commonwealth agencies using rule-base systems to assist in making a large number of decisions that have a significant impact on individuals. The agencies with whom discussions were held were Comcare, the Department of Veterans’ Affairs, the Department of Family and Community Services, Centrelink and the Australian Taxation Office. Where relevant, matters canvassed during those discussions are included in this issues paper.

3 Design and development of rule-base systems

The Council is particularly interested in the design and development of rule-base systems and the impact this can have on applicants and the accuracy of the processes involved. For example, if the system is not appropriately designed or an error is made at the development stage, a large number of applicants could be affected. In contrast, an error made in manual decision making might affect only one applicant. This chapter considers the motivation for rule-base systems and attempts to elucidate the factors that have led agencies to decide to use these systems. It also discusses the skills that designers of rule-base systems should have, the processes for testing the accuracy of the rules, and possible approaches to the exercise of discretion when the systems are being used.

3.1 The motivation for rule-base systems

Most agencies that have introduced rule-base systems seem to have been motivated by a desire to increase the accuracy and consistency of their decision making and to reduce the time and costs associated with that function. This motivation is particularly apparent in the case of agencies required to make a high volume of administrative decisions. One agency noted that among the factors that prompted it to implement a rule-base system were the desire for a system that could model legislation and identify unintended consequences of legislative change and the need to ensure that the payments made reflect the legislation and government’s e-business policy direction.[44]

ISSUE
What were the factors that led your agency to decide to use rule-base systems in decision making—volume of decisions, reliability and consistency of decision making, and so on—and what weight did those factors carry in the decision?

3.2 System designers

The skills and qualifications of people who design rule-base systems are also of interest to the Council. In some cases policy and legal officers from an agency have formulated the rules together with technical officers from the company supplying the product. In other cases, the entire process has taken place in house, the expertise being available within the agency. Neither approach is necessarily preferable: it simply depends on the skill mix and proficiency within a particular agency at the time. It would, however, seem desirable for system designers to have both technical knowledge of rule-base systems and legal and policy skills.

ISSUE
What are the qualifications of the people who developed your agency’s rule-base systems? What knowledge, if any, are they required to have of the relevant legislation and policy framework?

3.3 The accuracy of the rules

The accuracy with which the rules reflect the legislation is crucial to the fair operation of a rule-base system. The administrative law values of lawfulness, rationality and fairness are at issue in this connection.

In some rule-bases the rules are written in plain English before being translated into a computer language. This means that the text of the rules can be readily discerned by those who are not computer technicians, which would appear to be a significant advantage in checking the accuracy of the rules. The administrative law values of fairness and openness are at issue here.

ISSUE
What procedures did your agency employ for developing and testing your rule-base systems to ensure that they corresponded with relevant legislation and policy?

Regardless of how accurate a rule-base is, it can be only an approximate representation of the law. It has been noted that

It is rare that there can be a ‘verbatim representation’ of the logical structure of a section or subsection because the natural language of legislation does not restrict itself to the limited range of key words … and the limited range of logical forms of expression allowed by any representation.[45]

Further, the legislation is interpreted by the author of the rule-base and the content of the rules reflects that interpretation. Consequently, ‘the best that can be achieved is usually a logically equivalent paraphrase’[46], and the content of the rules once constructed may differ from the legislation.[47] It has also been suggested that factors other than interpretation of the legislation may engender that difference. Among those factors are a preference for rules with reduced discretion and the goal of making self-assessment possible (see Chapter 5).[48]

3.4 Discretion in the rule-base

The way any discretion in making a decision is dealt with in the rule-base is important. SoftLaw has identified three main approaches to dealing with discretion[49]:

· Approach 1—direct. Using this approach, the discretion to be exercised is asked as a base-level fact (to which the response is yes or no) and the officer exercises the discretion whilst being guided by the commentary. The officer can record the reasons for the exercise of a discretion in what SoftLaw calls a ‘reason box’, which can be used to collect audit information. This is SoftLaw’s default approach. It is appropriate where questions of fact and value are inseparable in the exercise of a discretion, so that a decision maker attaches value to a matter of fact even in choosing to have regard to that matter of fact. This is the main approach used in the FaCS–Centrelink Edge Project.

This approach was adopted in the question ‘Has the decision maker determined that Katie is to be taken as a family tax benefit child of Sarah for the purposes of the childcare benefit?’ This question relates to ss. 42(2), 44(3) and 45(3) of the A New Tax System (Family Assistance) Act 1999, which provide that the Secretary may determine that a child who is not a family tax benefit child of an individual at a particular time is taken to be such a child of the individual at that time for the purposes of certain childcare benefits.

· Approach 2—recommendation. When this approach is used the rule-base collects data related to the discretion and then makes a recommendation to the officer. The officer is asked to confirm or override the decision and to fill in the reason box for audit purposes. This approach is used in limited situations where questions of fact and value are separate but must be reconciled by a decision maker in the exercise of discretion. When it is used, the decision maker is required to attach a value to each matter of fact before exercising the discretion. The commentary might suggest the value to be attached to each matter of fact.

An example of this approach is an officer’s decision as to whether initial liability should be accepted under s. 14 of the Safety, Rehabilitation and Compensation Act 1988. The rule-base system makes a recommendation and then it is open to the officer to override that conclusion. There is a facility that allows the officer to provide any additional reasons or supporting explanation.

· Approach 3—guided. This approach is appropriate when questions of fact and value are entirely separate, such that the only question of value in the exercise of a discretion is whether it be exercised at all. For example, the discretionary provision sets out the matters of fact that must be considered if the discretion is to be exercised. The approach offers alternatives: the officer can exercise discretion as a base fact or can choose to be guided through the various factors that must be considered in exercising the discretion, a process that ensures the officer has considered all the factors relevant to exercising the discretion and the factors can be reviewed for audit purposes. The officer is then presented with a question, as in Approach 1, that requires them to enter the discretion as a base-level fact. There is also a reason box.

An example of this approach is a taxation prototype being developed for the Australian Taxation Office but not currently in use. The prototype relates to s. 87-65 of the Income Tax Assessment Act 1997. Where a business fails a test for a ‘personal services business’, the Commissioner has a residual discretion. Subsection 87-65(3) limits the exercise of that discretion but refers to the consideration of ‘exceptional circumstances’, which are further defined in s. 87-65(4). Where the ‘unusual circumstances’ are immediately obvious to the officer—because of their nature or the officer’s expertise—the discretion can be exercised immediately and the reasons collected. If, however, the officer wants to consider further the statutory limitations on the exercise of the discretion, the rule-base takes him or her through the relevant screens.[50] SoftLaw notes, ‘The availability of an “immediate” discretion may be limited to users above a particular level of experience. In this manner … rule-bases may be developed for less experienced users’.[51]

Presumably there are other possible approaches. For example, the rule-base might not deal with or guide the exercise of discretion at all and, where discretion needs to be exercised, the matter is ejected from the system.

ISSUE
Are you aware of any of these approaches being used in your agency’s rule-base or by an agency with whom you have contact? If so, please identify which approach is used for which decisions. If not, what other approach does the agency employ?

Although the rule-base can assist in the exercise of discretion, care needs to be taken to ensure that it does not inappropriately narrow the available discretion. If a rule-base incorporates policy that narrows the available discretion without appropriate authority, the exercise of that discretion may impinge on the administrative law values by being unlawful, unfair, irrational and not transparent. Any policy that limits the way in which discretion might be exercised should also be readily available to an applicant or their representative.

ISSUE
To what extent were administrative justice[52] and values[53] taken into account in the design of the rule-base system used in your agency?

3.5 Initial scrutiny of the rule-base

It seems clear that the developers of a rule-base system should not be responsible for its final testing. Rigorous testing of the system should be done by individuals independent of the system developers.

One way of testing the accuracy of the rules in the rule-base and the way the rule-base deals with the exercise of discretion is to arrange independent scrutiny of the rule-base before it becomes operational.[54]

ISSUE
Did your agency have the rule-base system independently scrutinised before it became operational? If so, who did this?

Did the agency engage in some other type of applicant assurance process? If so, what kind?

3.6 System maintenance

The system needs to be maintained to ensure its accuracy. Agencies might elect to rely on the system supplier to service the system or they might wish to ensure that they have sufficient expertise in house. Depending on the terms of the contract, a system supplier might charge a fee for maintaining the rule-base. There will also obviously be a cost if that expertise is maintained in house.[55]

ISSUE
Is your rule-base maintained by the system supplier or in house? Which option is preferable and why? If it is maintained by both the system supplier and in-house expertise, who does what?

Regardless of whether an agency’s rule-base system is maintained in house or by an external supplier, it appears that those responsible for maintenance need a detailed knowledge of the original development of the system, to ensure that modifications are consistent with the original model.

ISSUE
Do you agree that satisfactory system maintenance requires knowledge of the system’s development? What steps has your agency taken to ensure that such knowledge is not lost?

3.7 Security

Personal information stored in rule-base systems needs to be secure and access to it strictly regulated. Security measures should be such that both agencies and applicants can have confidence in the system.

ISSUE
What security measures does your agency have in operation to protect the integrity of the personal information stored in your agency’s rule-base system? Is officers’ access to personal information logged?

4 Arguments for and against rule-base systems

There are many perceived benefits in using rule-base systems in administrative decision making, among them increased accuracy and consistency in decision making, improvements in client service, and cost efficiencies. Rule-base systems also provide an audit facility and allow for scenario planning and data collection. Potential problems with the use of the systems in administrative decision making include the possibility of decision makers becoming ‘de-skilled’, applicants’ non-acceptance of the systems, non-compliance with administrative law values, and the continuing need to maintain the accuracy of the rule-base.

4.1 Accuracy and consistency in decision making

As noted one of the perceived benefits of using rule-base systems is that the systems promote accuracy and consistency in decision making.[56] It is also claimed that they eliminate human prejudice from decision making.[57]

The complexity of legislation creates an environment where error is likely. Forty-nine per cent of agencies that responded to a questionnaire issued as part of the Management Advisory Board’s Quality in Customer Service Project identified the complexity of legislation and regulations as an inhibitor to the provision of quality customer service by the Australian Public Service.[58] This complexity is compounded by ambiguity or uncertainty in legislation, frequent changes to legislation, the need to administer different provisions for different cases at different times, high staff turnover, pressure of work, limitations on training, and reliance on staff keeping up to date with the legislation.[59]

People making decisions may not consult the relevant legislation in processing an application but instead use policy manuals that attempt to summarise the law and may not include all recent legislative amendments and changes in policy. Determinations can also require consideration of matters that arise infrequently and are not commonly understood by decision makers. Evidence suggests that as a result of these factors the level of accuracy in decision making can be quite low.[60]

Recent Australian National Audit Office audit reports have provided evidence of the extent of incorrect payment of government benefits.[61] While the Council does not wish to single out particular agencies, ANAO’s Age Pension Entitlements Audit[62] is illustrative. In this audit, ANAO assessed the controls used by the Department of Family and Community Services and Centrelink to ensure the correctness of payments made under the Age Pension. This involved reviewing statistics used by Centrelink itself to assure FaCS that payments, and therefore program outlays, have been made in accordance with Social Security Law.[63] Centrelink uses a system of random sample surveys to obtain performance information on the integrity of the outlays.

According to the 2000–01 Age Pension random sample survey, 28 per cent of age pensioners were receiving an incorrect entitlement. The survey attributes this error to the following sources: 13 per cent to customer error; 1 per cent to Centrelink error; 2 per cent to Centrelink and customer error; and 12 per cent to other causes.[64] On the basis of these figures, FaCS estimated that the net impact on outlays arising from these incorrect payments was approximately 1 per cent of total program outlays. The ANAO audit report re-attributed the source of some errors, finding that 3 per cent of errors resulted from Centrelink processing errors and 22 per cent resulted from customer error.[65] Most customer error was found to be the result of customers not informing Centrelink of changes in their circumstances, which they are required by law to do.[66]

The ANAO report concluded that, although attributing errors to particular sources can be valuable in identifying problem areas, FaCS and Centrelink should also address the overall error rate—that is, Centrelink error plus customer error. It was suggested that Centrelink should consider ways of improving customer service so as to ensure that customers adhere to their obligations.[67] Both FaCS and Centrelink acknowledged the challenge of increasing complexity in customers’ circumstances and in legislation and processing requirements. FaCS agreed with ANAO that more needed to be done to reduce customer error. [68] Centrelink considered that better targeting of reviews of customer circumstances and the use of other decision-support tools should lead to reductions in processing errors and an increase in overall payment accuracy.[69]

More broadly, Centrelink’s Annual Report 2000–2001 notes that the agency

… is committed to ensuring that wherever possible we pay the right person the correct entitlement at the right rate. To support this objective six priority areas were identified:

· following correct procedures for establishing proof of identity

· keeping better records of customer information

· improving documentation of customer contacts on our payment systems

· ensuring that we record reasons for decisions

· keeping technical knowledge and skills current

· improving checking of the decisions made on customer payments.[70]

4.1.1 Areas of decision making that can affect accuracy and consistency

· the substance and breadth of the legislation

· the structural complexity of the legislation

· semantic complexity in the legislation

· the exercise of discretion.[71]

The first area of potential error— the substance and breadth of the legislation—relates to the fact that the relevant provisions can often be found at various locations throughout a statute, and a correct determination is dependent on identification and application of all those provisions; for example, definitions and clarifying terms might be inserted at the front of the statute and not near the operative provision. The second potential problem—structural complexity—relates to the form of the relevant provision; for example, preconditions can be conjunctive or disjunctive or there may be exceptions to preconditions. There are numerous instances of provisions with those characteristics (see, for example, s. 94 of the Social Security Act 1991). The third potential problem—semantic complexity—relates to the interpretation of certain terms.

It has been suggested that the use of rule-base systems can eliminate the potential for error in the first two areas.[72] Potential errors in relation to semantic complexity and the exercise of discretion can also be minimised through the use of appropriate commentary, which codifies relevant policies and rules, as an adjunct to the rule-base system. A rule-base system cannot directly support the making of a judgment in a complex case, but it can automate and control the process used by the decision maker to reach a judgment.[73] It can improve the accuracy and consistency of decision making by facilitating the same interpretation of the rules in each case.

An interview using a rule-base system can help with gathering information from a client; it can determine the facts on which a decision will be based and thus identify what requires proof and then provide the client with a list of the evidence required.[74] Once the necessary evidence has been identified, a rule-base system can be a useful adjunct to the consideration of evidence. It can load the case and begin a tailored evidentiary investigation[75]; it can focus the assessor’s mind on the consideration of each item of evidence, the requirements for that item, and the need for accountability in the consideration of evidence.[76] However, it ‘… cannot and should not attempt to automate the judgment of the quality of evidence’[77]: this should be the primary task of assessment staff.[78]

The rule-base can also provide a comprehensive record of the consideration of the evidence, as well as the basis for monitoring and auditing.[79]

Comcare advised the Council that an external audit of its decision making was conducted six months after the rule-base system was implemented. The audit focused on accuracy and consistency in decision making and found that there was a 70 per cent improvement in those areas following introduction of the system.

4.1.2 Consistency

Using a rule-base system promotes consistency in decision making across jurisdictions. The process of developing a rule-base and the accompanying commentary also throws up matters in relation to which an agency’s policy has not been recorded, is limited or does not exist. This prompts the agency to develop policies on those matters and thereby promotes consistency.

‘Workarounds’ and potential manipulation of the system also affect consistency. A ‘workaround’ describes a formal or informal process whereby the rule-base is not followed because, for example, it is out of date or the user does not consider it produces the correct result. This is discussed in greater detail in Section 4.2.

The accuracy and consistency rule-base systems can offer is relevant to the administrative law values of fairness and rationality.

4.1.3 Changes to the rule-base

If legislation that the rule-base models is amended or errors in the rule-base are detected, the rule-base needs to be amended quickly.

Rule-base systems can readily accommodate legislative change. They can also show the legislative rules as they were at a particular time in the past, obviating the need for the relevant legislation to be reconstructed by an officer. This is particularly useful with old cases.

If an error is identified in a rule-base, those affected can be identified and the appropriate determination then made. The rule-base can be corrected and officers using it from then on will be relying on an accurate, consistent set of rules. The difference between this and a manual system is that with the latter there is less guarantee that all officers will become aware of the error quickly and modify their practices; there is also no easy way of identifying past erroneous decisions. With the rule-base, there is no need to send memos or circulars advising of a change or error because amending the rule-base performs that function.

ISSUE
What has been the effect of the use of rule-base systems on the accuracy and the consistency of primary decisions?

Can you provide statistics on the accuracy and consistency of primary decisions made before and after implementation of the rule-base system?

Has your agency’s decision-making ability pre- and post-introduction been scrutinised in an external audit like that undergone by Comcare?

4.2 Time and cost

Rule-base systems can decrease the time and cost associated with making administrative decisions; this is relevant to the administrative law value of efficiency. At the Department of Veterans’ Affairs, use of the Compensation Claims Processing System enabled the department to substantially improve its performance in finalising primary claims.[80] In 1996 the department evaluated the system’s implementation; the report of the evaluation noted that the average time taken to process primary-level decisions fell from 157 days in 1991–92 to 102 days in 1995–96.[81] (The average time taken to process primary claims fell further, to around 73 days).[82] Between 1991–92 and 1995–96 the average cost per case dropped from $868 to $541.[83]

On the other hand, rule-base systems can be time-consuming and expensive to create and difficult to maintain.[84] Each time a legislative amendment is passed or a new court or tribunal decision affects the interpretation of an existing provision, the rule-base needs to be amended. If this is not done the rule-base is inaccurate. At least one agency noted that cost was an inhibiting factor in keeping the rule-base up to date. Some agencies are building the capability to maintain the rule-base in house because they think that will be more cost efficient.

If errors in the system are identified and cannot be fixed immediately because of the cost involved, management-initiated workarounds can be developed whereby officers are advised of the problem and given instructions for remedying it. It is also possible, however, that more informal workarounds could be developed by individual officers: this practice would undermine one of the inherent advantages in using a rule-base—namely, the accuracy and consistency of the criteria used as the basis for decision making. One agency informed the Council that it has a dedicated budget for updating the rule-base. A dedicated budget for maintaining the rule-base or retention of sufficient support in house, or both, would seem to be the optimum way of ensuring that a rule-base remains up to date.

ISSUE
Does your agency have a dedicated budget for maintaining its rule-base? How often is the rule-base updated?

How soon after a legislative change is made or a relevant decision handed down is the amendment incorporated in the rule-base? If there are delays, what causes those delays?

ISSUE
What has been the effect of the use of a rule-base system on the cost of primary decision making? Can you provide statistics on the cost of primary decisions made before and after implementation of the system?

ISSUE
What has been the effect of the use of a rule-base system on the time taken to make primary decisions? Can you provide statistics on the time taken to make primary decisions before and after implementation of the system?

ISSUE
What performance indicators should be used to measure rule-base systems—for example, accuracy, consistency, cost and time?

4.3 ‘Skilling’ or ‘de-skilling’ decision makers?

Proponents of rule-base systems argue that the systems relieve decision makers of routine work. The decision makers must still make the human judgments—that is, consider the evidence and exercise any discretion—but the rule-base system can perform the remainder of the decision-making task, including preparation of the statement of reasons. It has been suggested that this increases the skills of decision makers by allowing them to develop expertise in a broader number of areas, conduct research, focus on and negotiate with clients, and provide referral services.[85] There are also continuity benefits for the applicant and the officer, in that one officer is usually involved in the matter from beginning to end.

It can be argued, however, that using rule-base systems will diminish the skills of decision makers if they effectively become data processors entering yes or no in response to questions and are not required to exercise any judgment in the process. Corporate knowledge of alternative or more complex paths through the legislation may be lost.[86] Further, the ability to draft accurate statements of reasons may also be lost. Some agencies said they considered decision makers might be de-skilled through the use of rule-base systems. If officers are de-skilled and corporate knowledge is lost, this may adversely affect the administrative law value of efficiency.

The use of rule-base and other expert systems could result in over-reliance on information technology in decision making. If a computer system crashes, for example, officers need to be able to make decisions manually.

In some agencies, use of rule-base systems has resulted in the responsibility for certain decisions being delegated to officers at more junior levels than was previously the case. The Department of Veterans’ Affairs noted that use of its Compensation Claims Processing System has led to reduced classification and numbers of decision makers[87], which in turn has resulted in cost savings. The use of such systems can thus also provide an opportunity for organisational restructuring and a capacity to achieve organisational goals.[88]

Alternatively, it has been suggested that decision makers should be retained at the level as they were at before the rule-base system was implemented and that their output should be higher, which should still result in cost savings.

Although the use of rule-base systems can provide benefits in terms of the accuracy and consistency of administrative decision making and can reduce the time and costs associated with such activity, the systems are no substitute for comprehensive, regular training of officers engaged in decision making. Officers still need to be able to explain a decision to an applicant, and this includes an explanation of the relevant legislation and policy and any changes to it. These skills are especially important when applicants are not entitled to benefits or are no longer entitled to benefits or the same level of benefits. This training should be conducted in advance of legislative and policy changes.[89] One agency head noted in the course of discussions that, although rule-base systems provide useful assistance in the determination of entitlements, highly skilled officers are still the most critical element in the process. The goal is to reduce the cost of and time taken in decision making without there being a diminution in discretion or skills.

ISSUE
Has the number of decision makers or the level of those decision makers, or both, in your agency decreased since rule-base systems became operational?

Do you consider that officers using rule-base systems are becoming ‘de-skilled’? If so, what steps need to be taken to avoid this?

ISSUE
Do you or your organisation consider that officers using rule-base systems are more involved in research, client contact, and so on, than they were before the systems were introduced?

Is continuing training on the relevant legislation, decision making, interpersonal skills, and so on, provided to officers using rule-base systems?

There can also be difficulties associated with officers’ acceptance of a rule-base system. For example, people who are experts in the field may be resistant to such systems because they see them as undervaluing their expertise and their place in the organisation. Industrial problems arose in at least one organisation when a rule-base system was introduced.

4.4 Human error and manipulation

One danger with rule-base systems is that if a question is answered incorrectly—for example, because the officer did not read the accompanying material or made an error when responding to the question—the rule-base puts the case on a particular path and the officer may then not see another relevant path.

A further disadvantage identified by some agencies is that officers can become attuned to the system and learn to manipulate it in order to produce a desired result. The same potential exists with manual processing but perhaps not to the same extent. Further, an officer might use a rule-base system to give a decision legitimacy that it otherwise would not have. In informal discussions between the Council Secretariat and agencies it was noted that this potential disadvantage can be minimised by ensuring that officers are regularly rotated within organisations. Auditing may also be helpful.

4.5 The audit facility

Every decision made using a rule-base system has an instant and documented audit trail for every step taken or ‘mini-decision’ made in order to reach the ultimate decision. With manual processes, it is highly likely that some of the steps taken on the way to the ultimate decision will not be documented. The audit facility provided by rule-base systems is a significant advantage in terms of transparency. However, given the volume of decisions made by agencies, one must query whether this facility is fully used. If not, for what proportion of cases is it used?

ISSUE
What system—internal or external, or both—does your agency have in operation for auditing decisions that have been made using a rule-base system? If it is external, who conducts the audit?

What is the skill base of the (internal or external) auditors?

What proportion of decisions made using a rule-base are audited?

Do the auditors check the accuracy of the system or the accuracy of the decision, or both?

How are errors identified and what is the error rate?

How are results considered and acted upon if necessary?

What action is taken if an unacceptable level of error is detected?

4.6 Policy development and scenario planning

Preparation of the rule-base may assist with policy development; for example, the Australian Taxation Office has used a rule-base system to test the proposed legislation to implement the ‘baby bonus’ proposal. As noted, use of rule-base systems can also result in the identification of areas where an agency’s policy on a particular matter has not been recorded, is inadequate or does not exist. Use of such systems can thus increase the rigour of the policy process.

Use of a rule-base system also facilitates scenario planning by both applicants and agencies. For example, an applicant can amend their responses to see how a change in circumstances—a change in income, for example—would affect an entitlement. This will be further facilitated if rule-base systems are made available on internet sites.[90] By using rule-base systems, agencies can quickly ascertain whether changing the preconditions for receipt of a benefit will increase or decrease the number of people receiving the benefit as well as the cost of the change.

4.7 Data collection and privacy

The use of rule-base systems offers significant capacity for data collection.[91] For example, information can be searched to find the number of applicants who are receiving a particular benefit and have a child under a specific age. A rule-base system allows for interactive data collection that can be highly personalised[92] and removes the need to ‘genericise’ the process.[93] In this context, it has been noted that,

Because every data collection exercise can be tailored to the situation of the specific client, it is possible to collect a far broader range of information. The implications of this fact are profound. This enables far more precise targeting of policy and service delivery as well as far more detailed collection of management information than has traditionally been dreamt of, let alone possible.[94]

It has also been noted that an electronic data process can make use of data already held by an agency, minimising both inconvenience and the risk of inaccurate data.[95]

This does, however, raise privacy questions that need to be resolved. Agencies should not collect a broader range of information than what is required for the decision to be made. If data already held by an agency are used for another purpose, rather than minimising the risk of inaccurate data it may increase the risk of inaccurate data being used again. Further, if personal information that has been collected is to be used for a purpose other than that for which it was collected, an agency would have to ensure that the individual concerned had consented to the use of the information for that other purpose.[96] Additionally, before using the information, the agency would have to check its accuracy.[97]

On the other hand, the use of rule-base systems can assist in breaking down ‘silos’ that could adversely affect applicants. For example, an applicant in receipt of a payment might communicate a change in circumstances to the area that administers that payment. If payment systems are not linked, that change in circumstances might not be recorded in another area that administers a different payment to the applicant or his or her family. Rule-base systems can help in such circumstances because they can identify rules that are common to different types of payments. They are also able to explore the flow-on effects of a change in circumstances.

This consideration is relevant to the administrative law values of lawfulness, fairness and openness.

ISSUE
What privacy guidelines pertaining to rule-base systems does your agency have in operation?

For community organisations, does your organisation have a view on privacy and the use of rule-base systems?

4.8 The views of applicants

The Australian Law Reform Commission noted that applicants at trials of rule-base systems felt it was an open and fair process because they could see the reasons for questions, it was speedy[98], and it provided immediate information about entitlements.[99]

It has also been suggested that use of a rule-base system creates a more empowering environment because the applicant and the officer go through the rule-base together and the applicant can ask to see the commentary about a particular aspect of it.[100] Another advantage is that more explanatory material can be made available to the applicant than when the information is provided in hard-copy form.[101]

Rule-base systems can also overcome the potential problem of some applicants feeling disadvantaged by their relationship with the government officers concerned. If a rule-base system is used it is less likely that the result will be perceived as dependent on whether the officer likes the applicant or knows the rules that need to be applied.

Agency heads commented that use of a rule-base system can improve relations between an agency and its client group because the client group views the system as fairer. Use of such systems can also raise the standard of debate about particular matters because the focus of debate is directed to the central concerns, rather than argument about perceived inconsistencies in the interpretation of certain rules.

The alternative argument is that the idea of rule-base systems offering empowerment is relevant only to applicants who are at ease with the use of an automated system in the decision-making process. Rule-base systems could be viewed as impersonal and disempowering if applicants are less willing to challenge a decision made using a computer as opposed to one made by a human. As noted, some agencies are considering the possibility of rule-base systems being used by applicants themselves in the online interview process or for total self-assessment. That may lead to increasingly less human contact in administrative decision making.

A related question that arises concerns whether people should be advised that a decision is being made with the assistance of an automated system.

There is also a possibility that applicants will feel uncomfortable about having their personal information stored on a computer. The South Australian Community Housing Authority, which operates the Community Housing Eligibility Register (see Section 2.2), noted that, ‘particularly for people with little experience of computers and misinformation about the Internet, the perception of the visibility of their records to SACHA is common’.[102] SACHA has attempted to allay these concerns by correcting misinformation, establishing protocols for access, logging access, identifying its own powers in relation to access under a manual system, and making community housing organisations’ use of the register voluntary.[103]

Another perceived benefit of using a rule-base is that

… a rulebase-driven data collection process is a process made up of relatively small chunks. The client does not see the extent of the process before starting it, in the way that a client can pick up a 10-page form and feel their heart sink. Self-contained screens can mask the extent and complexity of a potentially lengthy process. Each of us knows that one of the effects of a lengthy and unfamiliar form is an immediate desire to postpone completing it.[104]

This perceived advantage is arguable: although using a rule-base (where only the relevant questions are posed) rather than a form may shorten the process, the applicant might still feel frustrated about the length of the process.

ISSUE
What is the nature of the information given to applicants about the rule-base system in use in your agency?

Do you have arrangements for surveying applicants where rul