Accountability Mechanisms Beyond
Merits Review & Jurisdictional Error
(“Lions, and tigers, and bears! Oh, my!”)
Dominique Hogan-Doran SC
L AW C O U N C I L O F A U S T R A L I A - F E D E R A L L I T I G AT I O N A N D D I S P U T E R E S O LU T I O N S E C T I O N
2 0 1 7 I M M I G R AT I O N L AW C O N F E R E N C E
2 5 F E B R UA R Y 2 0 1 7
The Scheme for Compensation for
Detriment caused by Defective Administration (the
CDDA Scheme) & Act of Grace Payments
LIONS…
What is the
CDDA Scheme?
Mechanism to compensate persons who have
experienced detriment as direct result of noncorporate 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. 409
Defective administration means:
What is defective
administration?
• Specific and unreasonable lapse in complying with
existing administrative procedures; or
• Unreasonable failure to institute appropriate
administrative procedures; or
• Unreasonable 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.
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 occurred
Claiming from the
Department of
Immigration and
Border Protection
Flow Chart for
considering
matters under the
CDDA Scheme
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].
• ‘Special circumstances’ and ‘appropriate’ not defined in
PGPA Act and are for decision maker to assess.
Resource Management Guide 401.
Act of grace
payments
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.
Misfeasance in Public Office
AND TIGERS …
Tort of misfeasance - Obeid v Ipp [2016] NSWSC 1376
X 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.
Offence of Misconduct in public office
Elements 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.
…. AND BEARS !
Automated Decision-Making
Minister 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:
Migration Act 1958
(Cth) s 495A
(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).
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.
What if something
goes wrong on a
grand scale?
“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.
(OH, MY!)
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?
Judicial Review
Options for
redress?
• 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.
Merits Review
Options for
redress?
• 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 decisionmaker as well as merits reviewer, risk that a flaw or
error in technology will carry from initial decisionmaker to merits reviewer.
And of course (working back to the beginning)
Options for
redress?
• Criminal compensation
• Compensation in tort
• CDDA discretionary compensation
• Act of Grace payment
Comments/Questions?
DOMINIQUE HOGAN-DORAN SC
w w w. d h d s c . c o m . a u
Tw i tt e r @ D H o ga n D o ra n S C
25 FEBRUARY 2017