Accountability Mechanisms Beyond - PowerPoint Presentation

Slide1

Accountability Mechanisms Beyond Merits Review & Jurisdictional Error(“Lions, and tigers, and bears! Oh, my!”) Dominique Hogan-Doran SC

Law council of

australia

- federal litigation and dispute resolution section

2017 immigration law conference

25 February 2017Slide2

The Scheme for Compensation for Detriment caused by Defective Administration (the CDDA Scheme) & Act of Grace PaymentsLions…Slide3

What is the CDDA Scheme?Mechanism to compensate persons who have experienced detriment as direct result of non-corporate Commonwealth entity’s defective administration. Moral obligation - should

not apply

if reasonable to conclude that NCE would

be legally

liable.

Discretionary - no obligation to approve a payment in any particular case. Administrative, not statutory (legislative) scheme - established under executive power of section 61 of the Constitution. Generally avenue of last resort.CDDA Resource Management Guide No. 409Slide4

What is defective administration? Defective administration means: Specific and unreasonable lapse in complying with existing administrative procedures; or Unreasonable failure to institute appropriate administrative procedures; or

U

nreasonable

failure to give to

applicant the proper advice that was within officer's power and knowledge to give (or reasonably capable of being obtained by officer to give); or Giving advice to applicant that was, in all the circumstances, incorrect or ambiguous. Slide5

What is detriment? Detriment means: Quantifiable financial loss suffered by applicant. Can relate to:personal injury, pure economic loss or

damage to property.

Objective: restore applicant to position would have been in had defective administration not occurredSlide6

Claiming from the Department of Immigration and Border ProtectionSlide7

Flow Chart for considering matters under the CDDA Scheme Slide8

Act of Grace Payments Power allows Finance Minister to make payments that would not otherwise be authorised by law, but are considered appropriate due to special circumstances: Public Governance, Performance and Accountability Act 2013 (Cth) s

65

.

Where

there is no other viable remedy available to provide redress in the circumstances If claim made for an act of grace payment on basis that entity’s defective administration has caused a loss, matter may be considered by relevant entity under CDDA Scheme in first instance: RMG No. 409 [27]. Slide9

Act of grace payments ‘Special circumstances’ and ‘appropriate’ not defined in PGPA Act and are for decision maker to assess. Resource Management Guide 401.Examples of special circumstances

include:

an

act of the department has caused an unintended and inequitable result to the individual or

organisation

seeking the payment; or Commonwealth legislation or policy has had an unintended, anomalous, inequitable or otherwise unacceptable impact on the claimant’s circumstances; or the matter is not covered by legislation or specific policy, but the Commonwealth Government intends to introduce such legislation or policy. Slide10

Misfeasance in Public OfficeAnd Tigers …Slide11

Tort of misfeasance - Obeid v Ipp [2016] NSWSC 1376X The tort can only be committed by a holder of a public office A person cannot be characterised as a holder of public office for purposes of the tort unless there is a power attached to their office which requires them to perform duties for the public.

X The public officer must have acted in bad faith

Mental

element in the tort

satisfied if public officer engages in impugned conduct with intention of inflicting injury, or with knowledge that there is no power to engage in that conduct and it is calculated to produce injury, or where officer acts with reckless indifference as to existence of power to support impugned conduct. X Plaintiff must show that loss or damage has been suffered The injury or damage can assume a variety of different forms; including physical or psychological injury, or damage to plaintiff’s property or reputation. Slide12

Offence of Misconduct in public officeElements set out in R v Quach (2010) 27 VR 310, 323 [46] (Hansen AJA):(1)  a public official; (2)  in the course of or connected to his/her public office; (3)  wilfully misconducted him/herself; by act or omission, for example, by wilfully neglecting or failing to perform his/her duty;

(4)  without reasonable excuse or justification; and

(5)  where such misconduct is serious and meriting criminal punishment

having

regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects. Slide13

…. AND BEARS ! Automated Decision-MakingSlide14

Migration Act 1958 (Cth) s 495AMinister may arrange for use of computer programs to make decisions etc.(1)  The Minister may arrange for the use, under the Minister's control, of computer programs for any purposes for which the Minister may, or must, under the designated migration law:

(

a)  make a decision; or 

(

b)  exercise any power, or comply with any obligation; or 

(c)  do anything else related to making a decision, exercising a power, or complying with an obligation. (2)  The Minister is taken to have: (a)  made a decision; or (b)  exercised a power, or complied with an obligation; or (c)  done something else related to the making of a decision, the exercise of a power, or the compliance with an obligation; 

that was made, exercised, complied with, or done (as the case requires) by the operation of a computer program under an arrangement made under 

subsection

 (1).Slide15

Why use automated systems? Process large amounts of data more quickly, more reliably and less expensively than humans. Guide a human decision-maker to identify the correct questions, including any relevant or irrelevant considerations.

Promote

lawful decisions because

ensures

that decision-makers

act within limits of their powers. Slide16

What if something goes wrong on a grand scale?(OH, MY!)

“Errors

in computer programming can result in wrong decisions potentially on an enormous scale if

undetected”

: The Hon Justice Perry speaking at the

Cambridge Centre for Public Law Conference, 2014. Slide17

Who is the delegate when decisions are made by computers?Who is decision-maker? To whom has authority been delegated?

Is it

programmer

,

policy

maker, authorised decision-maker or computer itself? Is concept of delegation appropriate in this context? Can a computer program be said to act independently of its programmer or relevant government agency, just like a human delegate? What if a computer determines

some, but not all, of the elements of the administrative decision? Should

determination

of those elements be treated as

subject

of separate decisions from those elements determined by

human

decision-maker?

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Options for redress?Judicial Review Automated decisions capable of being judicially reviewed. Automated systems must be clear about their reasoning process and what questions / materials were considered. Otherwise, decision-maker could fall into error if fail to consider ‘cogent’ material: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR

99, 131 (Robertson J).

Court may require evidence from expert witnesses in order to understand code embedded within technology and reasoning process used by system. Slide19

Options for redress?Merits Review Merits reviewer stands in shoes of original decision-maker. Not bound by original decision: Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 324-5 (Kiefel J).

Merits reviewer not bound

to take into account any

findings or

conclusions offered

by computer system or relied upon by human decision-maker. If same technology used by first-instance decision-maker as well as merits reviewer, risk that a flaw or error in technology will carry from initial decision-maker to merits reviewer. Slide20

Options for redress?And of course (working back to the beginning) Criminal compensation Compensation in tort CDDA discretionary compensation Act of Grace payment Slide21

Comments/Questions?Dominique hogan-doran sc www.dhdsc.com.au Twitter @DHoganDoranSC 25 February 2017