Chapter 10 explores the increasingly blurred line between public and private authority in designing and applying the AI tools, and searches for appropriate safeguards necessary to ensure the rule of law and protection fundamental rights. ADM tools are increasingly sorting individuals out, with important consequences. Governments use such tools to rank and rate their citizens, creating a data-driven infrastructure of preferences that condition people’s behaviours and opinions. Some commentators point to the rule of law deficits in the automation of government functions, others emphasize how such technologies systematically exacerbate inequalities, and still others argue that a society constantly being scored, profiled, and predicted threatens due process and justice generally. Using the case of Houston Federation of Teachers v. Houston Independent School District as a starting point, Lin asks some critical questions still left unanswered. How are AI and ADM tools reshaping professions like education? Does the increasingly blurred line between public and private authority in designing and applying these algorithmic tools pose new threats? Premised upon these scholarly and practical inquiries, this chapter seeks to identify appropriate safeguards necessary to ensure rule of law values, protect fundamental rights, and harness the power of automated governments.

In the future, administrative agencies will rely increasingly on digital automation powered by AI. Can U.S. administrative law accommodate such a future? Not only might an automated state readily meet longstanding administrative law principles, but the responsible use of AI might perform even better than the status quo in terms of fulfilling administrative law’s core values of expert decision-making and democratic accountability. AI governance clearly promises more accurate, data-driven decisions. Moreover, due to their mathematical properties, AI and ADM tools might well prove to be more faithful agents of democratic institutions. Yet even if an automated state was smarter and more accountable, it might risk being less empathic. Although the degree of empathy in existing human-driven bureaucracies should not be overstated, a large-scale shift to the use of AI tools by government will pose a new challenge for administrative law: ensuring that an automated state is also an empathic one.

Governments are increasingly adopting artificial intelligence (AI) tools to assist, augment, and even replace human administrators. In this chapter, Paul Miller, the NSW Ombudsman, discusses how the well-established principles of administrative law and good decision-making apply, or may be extended, to control the use of AI and other automated decision-making (ADM) tools in administrative decision-making. The chapter highlights the importance of careful design, implementation and ongoing monitoring to mitigate the risk that ADM in the public sector could be unlawful or otherwise contravene principles of good decision-making – including consideration of whether express legislative authorisation for the use of ADM technologies may be necessary or desirable.