Guidance for the artificial intelligence impact assessment tool

9. Contestability

9.1 Notification of AI affecting rights

You should notify individuals, groups, communities or businesses when an administrative action materially influenced by an AI system has a legal or significant effect on them. This promotes transparency and access to justice, by ensuring individuals can understand how government uses AI to perform actions that affect them and have the opportunity to seek review of that decision.

This notification should state that the action was materially influenced by an AI system and include information on available review rights and how the individual can challenge the action. The notification should be clear, up-to-date, concise and understandable, and should not be complex, lengthy, legalistic or vague. It may be appropriate to provide notification prior to the action being taken or at the same time that the action occurs (for example, an applicant may be asked to acknowledge that AI will be used to a stated extent to assess their application).

An action producing a 'legal effect' is when an individual, group, community or business's legal status or rights are affected, and includes an effect on the:

• provision of rights or benefits granted by legislation or common law
• imposition of penalties or orders (civil or criminal), and
• contractual rights.

An action producing a 'significant effect' is when an individual, group, community or business's circumstances, behaviours, interests or choices are affected, and includes an effect on the provision of:

• critical government services or support, such as housing, insurance, education enrolment, criminal justice, employment opportunities and health, disability or aged care services
• basic necessities, such as food and water.

An action may be considered to have been 'materially influenced' by an AI system if:

• the action was automated by an AI system, with little to no human oversight
• a component of the action was automated by an AI system, with little to no human oversight – for example, a computer performs the first 2 limbs of an action, with the final limb made by a human
• the AI system is likely to influence actions that are performed – for example, the AI system output recommended a decision to a human for consideration or provided substantive analysis to inform a decision.

'Administrative action' is any of the following:

• making, or refusing or failing to make, a decision
• exercising, or refusing or failing to exercise, a power
• performing, or refusing or failing to perform, a function or duty.

Advisory note

This guidance is designed to supplement, not replace, existing administrative law requirements pertaining to notification of administrative decisions. The Attorney-General's Department is leading work to develop a consistent legislative framework for automated decision-making (ADM), as part of the government's response to recommendation 17.1 of the Robodebt Royal Commission Report.

9.2 Challenging administrative actions influenced by AI

Individuals, groups, communities or businesses should be provided with a timely opportunity to challenge an administrative action that has a legal or significant effect on them when the action was materially influenced by an AI system. This is an important administrative law principle. It also promotes accountability and improves the quality and consistency of government decisions.

Administrative actions may be subject to both merits review and judicial review.