A Legal Comparative Analysis of Automated Decision-Making and Reasonableness in Administrative Law

Abstract

With the approach of the Fourth Industrial Revolution, there has been a global trend towards implementing different forms of artificial intelligence within public administration with the aim of improving the efficiency and accuracy of such systems. This article investigates the implications which implementing automated decision-making would have on the reasonableness of decisions made within South African public administration by identifying specific areas of automated decision-making which have presented legal obstacles or concerns in English law. Section 6(2)(h) of the Promotion of Administrative Justice Act is used as a framework against which to consider the possibilities and limits to be considered when implementing automated decision-making systems in South African public administration. Algorithm-assisted decision-making is differentiated from automated decision-making and the former is discussed as a more realistic system for South African policymakers to incorporate into administrative decision-making. Finally, the article highlights concerns specific to the South African context regarding the use of algorithms in administrative decision-making and suggestions are made regarding the areas in which South African administrative law may need to develop in order to allow for algorithm-assisted decision-making to hold up against a reasonableness review.

Keywords: automated decision-making, administrative law, reasonableness review, algorithm-assisted decision-making, artificial intelligence, section 6(2)(h) of PAJA

JEL Classification: K23, K00, K1, K22